the toxic truth - Greenpeace

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the toxic truth “ Many thanks for your assistance on the discharge of the slops in Abidjan, highly appreciated... “ Please note that we would have a similar operation in about 45-60 days on the sister vessel Probo Emu and would appreciate if you could offer the same support. “ In the meantime, please note that for this particular one on the Probo Koala we need a copy of the invoice from the receiving company asp. Please call me when you have some minutes as I would like to clarify something 385 about this invoicing. ” The following day Jorge Marrero of Trafigura Ltd emailed Puma again. “ Further to our telecom, please note that we require an invoice from the slop removal company as follows: … • 168.048 CBM Chemical Slops ……. • 500US$/CBM US$ 84,024 • Merccaptan sulphur solids/Caustic waste • 470 CBM MARPOL Slops …………….. • 50US$/CBM US$ 18,013 • Water washing/gasoline slop • Total amount due US$ 102, 037 ++++++ “ Please make both WAIBS and Compagnie Tommy aware that they may be contacted by European customs to check on the removal of the slops and the cost of the removal as per above. ” 386 (emphasis added) The amount that Trafigura asked to be reflected on the invoice was far in excess of what Compagnie Tommy had quoted. The request by Trafigura for an invoice with new charges completely undermines its claim that Compagnie Tommy had been “appointed in good faith by Trafigura on the basis that it would carry out its responsibilities safely and legally”. 387 It would appear that Trafigura was well aware that the price quoted was too low and would be seen as such by European authorities. The conclusion that Trafigura was aware of the shortcomings of Compagnie Tommy seems logical. Indeed, both the UN Special Rapporteur on Toxic Waste and Human Rights and the Côte d’Ivoire National Commission of Enquiry reached the same conclusion. The UN Special Rapporteur on Toxic Waste and Human Rights, stated that Compagnie Tommy “ had neither previous experience with waste treatment nor adequate facilities, equipment and expertise to treat waste. It is of concern to the Special Rapporteur that these shortcomings do not appear to have been taken into consideration by Trafigura. ” 388 The National Commission named two Trafigura executives who were involved in agreeing the contract with Tommy: these were Paul Short, Trafigura’s Director for West Africa, and Jorge Marrero, of London-based Trafigura Ltd. The National Commission of Enquiry noted that: “ Neither Mr Paul Short nor Mr Marrero could ignore the Tommy company’s technical 389 incapacity”. ” The Commission relied on the letter from Salomon Ugborogbo to Jorge Marrero dated 18 August 2006, which stated that the product would be “disposed of” rather than “treated” in Akouédo. The National Commission of Enquiry also raised other questions about Compagnie Tommy stating that: “ the Tommy company had all the appearances of a cover company … All of the actors, in their statements, maintained that they did not have any 390 particular link with the Tommy company. ” The clear signals (the content of the contract and the price charged) that Tommy lacked the competence to deal appropriately with the waste are only one reason why Trafigura cannot credibly hide behind Compagnie Tommy (see box on page 92). 89 Chapter 7
90 Amnesty internAtionAl And greenpeAce netherlAnds Chapter 7 Trafigura contracted to dispose of the waste in the city dump The handwritten contract with Compagnie Tommy clearly states that this company will take the waste to Akouédo. In light of the hazardous nature of the waste and the fact that Trafigura, by their own account, had not worked with Tommy before, a check by Trafigura on the named location of Akouédo, to ensure it was a premises capable of dealing with such waste, would have been the least they could have done to exercise due diligence. After all, Akouédo was given only as the name of a site, and not as a treatment centre or company. There was no indication that it was appropriately licensed to accept the kind of waste on board the Probo Koala. This assumes that the staff involved in the process in two local companies – WAIBS and Puma – did not know what Akouédo was, even though it is a well-known landfill dump site in the city of Abidjan. Trafigura has stated that it “cannot have foreseen the reprehensible and illegal way in which Compagnie Tommy then proceeded to dump the slops”. 391 However, much of the waste that Tommy dumped was at the Akouédo dumpsite, which is exactly what they had told Trafigura they would do. trafigura’s responsibility for the aCts of toMMy Trafigura has argued that it has no responsibility for the actions of Tommy, and therefore is not responsible for the dumping, as this was carried out by another corporate actor. As will be discussed in Section III, no court has ever examined the legal liability of Trafigura for the dumping. A Dutch court has convicted the company for illegal export of the waste from Europe, but did not look at events in Côte d’Ivoire. However, the view that no legal liability or responsibility would attach to Trafigura for the actual dumping, simply because the actions were carried out by another company to whom Trafigura passed the waste, would be open to challenge under the environmental laws of many countries. Under the UK Environmental Protection Act, for example, the entity that created the waste would have a duty of care in respect of the waste. Under the duty of care provision, anyone who imports, produces, carries, keeps, treats or disposes of waste must take all reasonable measures to prevent the waste from being illegally disposed of. Waste must only be transferred to someone authorized to transport it. 392 The Act makes it a criminal offence to deposit waste, or to cause or permit the deposit of such waste on land, except with a licence. It is also an offence to keep, treat or dispose of waste without a licence. Finally, it is also illegal to dump waste if the result is likely to cause pollution of the environment or harm to human health. Under this, and similar, legal frameworks it would be argued that Trafigura: » Did not take all reasonable precautions » Knew the waste was dangerous » Contracted with a company despite warning signals about its ability to manage disposal » Did not ensure that Akouédo had a licence. And therefore did not “take all reasonable measures to prevent the waste from being illegally disposed of”, but rather permitted the deposit of the waste on land at a site that did not have a licence. The fact of handing over the waste to Tommy in the circumstances described in this chapter would not absolve Trafigura of legal responsibility. It is arguable that in numerous jurisdictions, including Côte d’Ivoire, Trafigura could be prosecuted in relation to the dumping of the waste. The limitations of Côte d’Ivoire law are discussed in Chapter 8. However, the full scope of Côte d’Ivoire law was never brought to bear. A legal settlement between Côte d’Ivoire and Trafigura included a clause that gave Trafigura immunity from prosecution. An office building at Akouédo, the dump site where Trafigura agreed to send the waste. © january 2010. n’jeri eaton/BaGaSSi Koura
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