the toxic truth - Greenpeace

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