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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