the toxic truth - Greenpeace

the toxic truth
307. This was reported during the criminal court hearing
in Amsterdam, on June 10 2010. The Judge
read out an email saying: “It is very likely that
we find solid residues in the cargo tanks and
slop tanks due to the caustic washings, these
may include caustic soda, sodium sulphide,
sodium hydrosulphide and sodium mercaptides
Notes taken by Greenpeace.
308. Report Accident investigation following the Vest
Tank explosion at Slovag, Revision O3, English
version, Bergen, 26 September 2008, available
at www.dsb.no/Global/Farlige%20stoffer/
Dokumenter/Report_accident_vest_tank.pdf
(accessed May 2012)
309. From written testimony from one of the truck
drivers to Trafigura. Deposition de [witheld] to
Trafigura, February 11, 2009, English translation
from para 58: “Je n’ai pu remplir qu’une
demi-citerne, soit entre 10 et 15.000 lotres. Le
liquide était alors très lourd – presque comme
de la boue liquide. C’était une sorte de boue
épaisse et rougeâtre.
310. Basel Convention, Article. 2 (1).
311. Basel Convention, Article 2 (4)
312. energiaadebate.com/wp-content/uploads/2011
/10/Baker1.pdfa, available at energiaadebate.
com/wp-content/uploads/2011/10/Baker1.pdf
(accessed May 2012)
313. The material which left PEMEX was as described
in the Material Safety Data Sheet as “coker
gasoline’. (PEMEX Refinacion Material Safety
Data Sheet (coker gasoline) September 9,
2005) Trafigura, however, has always referred
to the cargoes as coker naphtha. It is unclear
why different terms are used by different people.
However, as the properties that are attached to
coker gasoline as described in the MSDS from
PEMEX are similar to the properties attached to
coker naphtha as found in the literature it would
appear that these are interchangeable terms
for the same type of substance. Coker gasoline
and coker naphtha as well as the composition of
the waste that was created after the caustic washing
all present several similar generic hazards
because of the presence of toxic, irritant and
flammable compounds.
314. Basel Convention, Article1(1.a). Also, under
Article 1(1.b), wastes that are not covered under
paragraph 1.a but are defined as, or considered
to be, hazardous wastes by the domestic legislation
of the Party of export, import or transit.”
315. Coker naphtha is included in the following, listed
under Annex I of the Basel Convention: -Y9
(Waste streams) Waste oils/water, hydrocarbons/water
mixtures, emulsions; and-Y42 (Wastes
having as constituents) Organic solvents
excluding halogenated solvents. Coker naphtha
is therefore presumed to be a hazardous waste.
316. Annex III lists the following: H1: Explosive; H3:
Flammable liquids; H6.1: Poisonous (Acute).
Substances or wastes liable either to cause
death or serious injury or to harm health if
swallowed or inhaled or by skin contact. Annex
VIII of the Basel Convention (further clarified
and presumed hazardous wastes) provides a
non-exhaustive listing of wastes presumed to
be hazerdous. Although “coker naphtha” is not
specifically named in this Annex, it is Annex
I and III that are the definitive guide to the definition
of hazerdous waste. In any case Annex VIII
includes: A3150 Waste non-halogenated organic
solvents; A4060 Waste oils/water, hydrocarbons/water
mixtures, emulsions; and A4080
Wastes of an explosive nature.
317. This information was collected by Greenpeace
Netherlands during evidence given during the
trial in the Dutch criminal proceedings in June
2010 against Trafigura and was based on a big
map displayed in the court room of the District
Court of Amsterdam.
318. Basel Convention, Art. 4.5 and Art. 11.
319. Such a Basel-sanctioned multilateral agreement
as stipulated in Basel Article 11 must contain
similar provisions to that as the Basel Convention,
such as the requirements for environmentally
sound management and prior informed
consent. Indeed, the OECD accord does have
such a notification and consent requirement.
320. Basel Convention, Art. 9 and Art. 4, para 3.
321. In September 2011, a group of experts in
international law gathered in Maastricht, under
the auspices of the International Commission of
Jurists and Maastricht University, to discuss the
extent and the scope of obligations under the
ICESCR, and they adopted the Maastricht Principles
on Extraterritorial Obligations of States
in the area of Economic, Social and Cultural
Rights. The principles are available at www.
maastrichtuniversity.nl/humanrights.
322. Principle 13, the Maastricht Principles on Extraterritorial
Obligations of States in the area of
Economic, Social and Cultural Rights, available
at www.maastrichtuniversity.nl/humanrights.
323. Trafigura Beheer BV was found guilty of
“violation of a regulation set out in Section
10.60, second paragraph of the Environmental
Management Act, committed intentionally by
a legal entity”, Amnesty International English
translation of verdict on Trafigura Beheer BV, LJN
(National Case Law Number): BN2149, District
Court of Amsterdam, 13/846003-06 (PROMIS),
para 15 and para 8.3.2.15.
324. Internal Trafigura email from a London based
employee to colleagues including directors, dated
28 December 2005 (rec# 7696 Yao Essaie
Motto & Others v Trafigura Limited and Trafigura
Beheer BV in the High Court of Justice, Queen’s
Bench Division, Claim No. HQ06X03370).
325. See: www.trafigura.com/PDF/Trafigura%20&%20
The%20Probo%20Koala%20110721%20v2.pdf
326. Internal Trafigura email from London based employee
to colleagues including directors, dated
28 December 2005 (rec# 7696 Yao Essaie
Motto & Others v Trafigura Limited and Trafigura
Beheer BV in the High Court of Justice, Queen’s
Bench Division, Claim No. HQ06X03370).
327. Amnesty International English translation of
verdict on Trafigura Beheer BV, LJN (National
Case Law Number): BN2149, District Court of
Amsterdam, 13/846003-06 (PROMIS), para
8.3.2.8.
328. Internal email between Trafigura and Falcon
Navigation dated 10 March 2006 (rec# 6580,
Yao Essaie Motto & Others v Trafigura Limited
and Trafigura Beheer BV in the High Court of
Justice, Queen’s Bench Division, Claim No.
HQ06X03370).
329. Internal email between Trafigura and Falcon
Navigation dated 13 March 2006 (rec# 6580,
Yao Essaie Motto & Others v Trafigura Limited
and Trafigura Beheer BV in the High Court of
Justice, Queen’s Bench Division, Claim No.
HQ06X03370).
330. Internal email between Trafigura and Falcon Navigation
dated 21 June 2006 (rec# 7400 in application
notice for Claim No. HQ06X03370 and
others for the High Court of Justice, Queen’s
Bench Division).
331. Data from the Yearbook 2010 of the “Maritime
Safety and Security Bureau” – Spanish Ministry
of Public Works.
332. The Guardian, UK, “Bay of Gibraltar is ‘disaster
waiting to happen’”, 6 September 2011. See:
www.guardian.co.uk/environment/2011/
sep/06/bay-of-gibraltar-shipping-pollution (last
accessed May 2012).
333. “Gibraltar: Controversia y Medio Ambiente”,
Jesús Verdú Baeza. Ed. Dykinson, 2008 Treaty
Establishing the European Community (“TEC”)
applies to Gibraltar by virtue of Article 299(4) of
that Treaty but provisions relating to the Community
Customs Territory, free movement of goods,
Common Commercial Policy, Common Agricultural
and Fisheries Policies and harmonization of
turnover taxes do not apply to Gibraltar.
334. For more information: www.greenpeace.org/
international/publications/oceansrescueplan
335. Internal Trafigura email dated 27 December
2005 (rec# 5914, Yao Essaie Motto & Others v
Trafigura Limited and Trafigura Beheer BV in the
High Court of Justice, Queen’s Bench Division,
Claim No. HQ06X03370).
336. Meeting minutes Al-Trabsa Technical Administration
Al-Skhirra 15 March 2006, (Rec#
13571 from application notice for claim No.
HQ06X03370 and others for the High Court
of Justice, Queen’s Bench Division) state:
“damages occurred to the employed such as
suffocation”.
191
endnotes
337. Meeting minutes of Al-Trabsa Technical Administration
Al-Skhirra 17 March 2006 (Rec#
13570 from application notice for claim No.
HQ06X03370 and others for the High Court
of Justice, Queen’s Bench Division): “… in
the wake of the incident of the leakage of
H 2 S and other Sulphur gases on 14 March
2006. Whereas we undertook a meeting on
15 March to reach a solution for the case and
demand TankMed to take necessary procedure
to prevent the above mentioned gas leakage.
Whereas the case is still causing problems in
the area including admitting three people to
local hospitals in La Skhirra...”