the toxic truth - Greenpeace

40 Amnesty internAtionAl And greenpeAce netherlAnds
Chapter 3
Trafigura asked APS to pump the waste back
into the Probo Koala’s slops tanks. An email
sent from Falcon Navigation, which was
managing the operations of the Probo Koala,
to BMA, the shipping agents for the ship in
Amsterdam, stated:
“ …PlS BE ADvISED ThAT WE hAvE
InSTRUcTED ThE SlOP BARGE TO RE-DElIvER
ThE SlOP WAShInGS BAck TO ThE vESSEl
In SUBJEcT DUE TO ThE hIGh cOST Of
DElIvERy AnD PROcESSInG AT AMSTERDAM.
WAShInGS ARE TO BE kEPT On BOARD AnD
ShAll BE DISPOSED Of AT nExT cOnvEnIEnT
OPPORTUnITy. ” 119
The smell and Trafigura’s request to reload the
waste on to the Probo Koala were sufficiently
unusual to raise the concern of regulators.
During 3-4 July, numerous discussions
are reported to have taken place amongst
local authorities on how to deal with the
situation. During the initial discussions about
whether the waste could be reloaded, the
Dutch Environmental Management Act was
cited as an objection by the Department of
Environment and Buildings of the Municipality
of Amsterdam. 120 This Act prohibits the
transfer of industrial or hazardous waste to
a person who is not authorized to receive
such waste. Under Dutch law the waste would
have been classified as industrial, and should
also have been classified as hazardous:
this was the conclusion of a subsequent
investigation of the events in Amsterdam by
the Municipality of Amsterdam. 121
The investigations conducted by the Hulshof
Committee, as well as a separate investigation
undertaken by the UN Special Rapporteur on the
adverse effects of the movement and dumping
of toxic and dangerous products and wastes
on the enjoyment of human rights (hereafter,
the UN Special Rapporteur on Toxic Waste and
Human Rights), highlighted that, at the time,
there was a lack of understanding amongst the
different regulatory bodies in Amsterdam as to
which law or regulations applied. 122
The Hulshof Committee found that much of
the discussion was dominated by the views
of the private companies involved. Trafigura
wanted the waste back; BMA, acting for the
Probo Koala, wanted the ship to be able to
leave Amsterdam and make its next port of
call; APS – concerned about being left with
the waste – maintained it had not accepted
the waste on the barge in any legal sense, and
threatened to take legal action should a “rapid
solution” not be found. 123
The Port Authority director – under pressure to
find a solution – contacted Port State Control
of the Inspectorate for Transport, Public Works
and Water Management. The Port Director
was informed that no legal basis existed
under the MARPOL regulations to prevent the
ship reloading the slops and delivering them
to another port, given the adequate storage
capacity on board and the shipowner’s free
choice in the matter. 124 As will be discusssed
later this advice has been strongly challenged.
The view of Port State Control was not
sufficient to enable reloading of the waste.
This required the approval of environmental
authorities. On 4 July 2006, a late-evening
meeting was held at the APS premises to
discuss the situation; at the conclusion of
this meeting, officials from the Department of
Environment and Buildings of the Municipality
of Amsterdam gave APS and the captain of the
Probo Koala verbal permission for the waste to
be reloaded. 125 The rationale for this decision
is not fully clear.
The various regulators appear to have lost
sight of the fact that transferring the waste
from the APS barge to the Probo Koala would
constitute a breach of the Environmental
Management Act. They also failed to consider
key provisions of both the Basel Convention
and the associated EU laws on the export of
waste. Instead, on 5 July 2006, the waste was
reloaded on to the Probo Koala, and the ship
sailed for Estonia. 126