the toxic truth - Greenpeace

94 Amnesty internAtionAl And greenpeAce netherlAnds
Chapter 7
trafigura Continues CaustiC washing – vest tank and the Case in norway
Despite the catastrophic impact that the waste
dumping had on Abidjan, Trafigura continued the
caustic washing process of the Mexican coker
naphtha. The operation was continued on board
another ship, the Probo Emu, 413 on which three
shipments of naphtha were reportedly washed.
In addition, during 2006 Trafigura reached an
agreement with a Norwegian company, Vest
Tank, to undertake caustic washing on further
shipments of the coker naphtha onshore at a
Vest Tank facility. 414
Six shipments of coker naphtha were transferrred
from the US to Norway between 5 November
2006 and 22 April 2007. 415 To deal with the
waste that resulted from caustic washing, Vest
Tank neutralized the caustic concentrate and
sulphur left in the tanks by adding hydrochloric
acid. 416
On 24 May 2007 one of the tanks exploded,
and the contents of another tank leaked and
caught fire. 417 The explosion led to emissions
of chemicals such as hydrocarbons, sulphur
dioxide and sulphides in the form of substantial
smoke from the fire. 418 It affected Gulen
and Masfjorden counties; approximately 200
people were reported to have become ill as a
result of exposure to the fumes. 419 The reported
health effects included nausea, stomach pains
and headaches, pulmonary problems and eye
irritation. 420
In the aftermath of the explosion, the caustic
washing of coker naphtha was exposed. This was
not a process for which Vest Tank was licensed,
and the Norwegian authorities began a criminal
investigation into the incident. 421 In the course
of the investigation it came to light that, as well
as delivering coker naptha to Vest Tank, Trafigura
had also delivered waste that was created by
caustic washing of coker naptha on board of the
Probo Emu while the ship was at sea.
Three individuals associated with Vest Tank
were found guilty of breaching a number of laws,
including the Penal Code, the Environment Act,
the Working Environment Act and the Fire and
Explosion Act. The former chief executive officer
(CEO) and the owner and chair of Vest Tank
were sentenced to 18 months imprisonment.
A consultant was sentenced to a conditional
45 days imprisonment. The prosecutor and the
three convicted individuals appealed against
the verdict. On 31 May 2011, the Gulating
Appeal Court upheld the verdict and sentence
against the CEO, 422 but aquitted the consultant.
The third defendant was sick during the hearing
in the Appeal Court, and the case is pending.
The prosecutor has appealed in both cases to
the Supreme Court. The CEO has since been
sentenced to and is serving a term of imprisonment.
A criminal case was also brought against Trafigura
for its involvement in the Vest Tank scandal.
However, this was dismissed on the basis that
Trafigura could only be prosecuted if hazardous
waste had been exported to or imported from
another state to Norway. The delivery of waste
created on board a ship on the high seas was
viewed as not being export or import under the
terms of Norwegian law. 423
Norway’s then Minister of Environment,
Erik Solheim, described the situation as
“unacceptable” stating that “we’ve fully
demonstrated a big hole in our legal system
when someone commits crime in the high seas
and we cannot punish them in Norway. This is a
totally unacceptable situation…”. 424
Trafigura, therefore, avoided prosecution in
Norway for delivery of the waste. The prevalling
reading of the Basel Convention has not allowed
for a ship to be considered as an “area under the
national jurisdiction of a State.” This may indeed
be a loophole in the Convention, as wastes can
be generated on board ships and indeed ships
are under flag state jurisdiction.
However, it is not clear if all of the waste that
was brought to Norway was generated on
the high seas. During investigations into the
illegal export of waste from the Netherlands it
emerged that some of the waste that ended
up in Abidjan was created in the territorial
waters of Malta, Spain and the UK (Gibraltar). 425
Amnesty International and Greenpeace have
questioned whether this was also true for the
waste brought to Norway, and have asked the
Norwegian authorities to comment on whether
this possibility was investigated.
In addition, the Norwegian authorities do not
appear to have considered whether the coker
naphtha was a hazardous waste in and of itself.
As described in Chapter 6, the coker naphtha was
generated as a by-product of an industrial process
in Mexico, transported by truck to the US, sold to
Trafigura, and subsequently transferred from the
US to Norway. Greenpeace, Amnesty International
and the Basel Action Network believe that a review
of the available evidence shows that the coker
naphtha should be considered as hazardous
waste under international definitions found in the
Basel Convention to which Norway is a state party.
Norway is the third country where Trafigura is
known to have delivered the hazardous waste
created by caustic washing of coker naphtha
(the others are the Netherlands and Côte
d’Ivoire). However, only in the Netherlands was
Trafigura prosecuted for this. The company was
found guilty of delivering goods which they knew
presented a hazard to health, and concealing
the hazardous nature of the goods, contrary to
section 174 of the Dutch Penal Code.
The events in Norway – and the inability of the
Norwegian authorities to bring a prosecution
against Trafigura – raise a number of serious
questions about the capacity, ability and willingness
of states to effectively prevent and deter
transnational corporate crimes. These issues
are dealt with in more detail in the final section
of this report.
Explosion at
the Vest Tank
facility in Norway,
following caustic
washing of coker
naphtha delivered
by Trafigura, 24
May 2007.
© Glenn roGerS