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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 Explosion at the Vest Tank facility in Norway, following caustic washing of coker naphtha delivered by Trafigura, 24 May 2007.
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.
© Glenn Rogers
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.