Chapter 1: Introduction
Late at night on the 19th of August 2006, 12 trucks drove away from the port at Abidjan, Ivory Coast. The trucks were loaded with toxic waste produced by the multinational, Trafigura. During the night and early morning the hazardous materials were dumped at 18 different sites around the city, close to densely populated areas. People near the dump sites immediately began to feel the toxic effects of the waste. It is estimated that 15 people died as a result of this environmental crime, while 108,000 individuals sought medical assistance. Today residents in Abidjan continue to suffer from medical conditions associated with toxic poisoning.
In the following case study you are going to be presented with evidence that documents the decisions and calculations that led to the dumping of toxic materials in Abidjan by Trafigura. You will also witness systematic failures in state regulation, which allowed this crime to occur. This case study, therefore, will demonstrate how major corporate crimes can be both crimes of commission (corporate action) and omission (state failure) (see Kramer et al 2002; Lasslett 2010; Tombs 2012).
Chapter 2: The Ivory Coast Dumping Part One - Mexico to Amsterdam
Trafigura is the world's third-largest independent oil trader; it made approximately US$1bn profit in 2009, with an annual turnover of over US$70bn. This turnover figure is substantially in excess of Ivory Coast’s GDP, which is around US$25bn. This puts the relative financial power of the two organisations into stark perspective. Despite often being described as Dutch, Curaçaon, British or Swiss, Trafigura is a truly international corporation and operates across borders with a physical presence in at least forty-four countries. The CEO (one of the company’s founders) owns approximately 20% of the corporation, while the rest is controlled by some 500 senior employees.
In 2002, Pemex began refining heavy crude oil – at its newly refurbished refinery in Cadereyta, Mexico – which produced coker naphtha as a by-product. After about 30 months of production, the refinery had reached its holding capacity. Consequently, Pemex made the decision to offer the unrefined oil (coker naphtha) for sale on the open market. Through its wholly owned subsidiary PMI, Pemex transported about 84,000 tons of coker naphtha on trucks to the Port of Brownsville, Texas, USA where Trafigura accepted delivery in early 2006.
Three loads of coker naphtha, each weighing approximately 28,000 tonnes, were loaded onto three ships at Brownsville and were transferred to the Mt Probo Koala.
The sulphur content of the unrefined coker naphtha needed to be reduced to make it saleable on the West African market (which has a lower quality standard than, say, the EU or the USA). The method of caustic washing was decided upon. Consequently, caustic soda was added to the Probo Koala’s storage tanks containing the coker naphtha. It was allowed to circulate for one day and then settle. The caustic solution, which now contained the extracted sulphur and the bottom layer of the naphtha, was subsequently pumped into the slop tanks of the Probo Koala.
The opportunities and challenges presented by the washing and sale of the coker naphtha are discussed in an email exchange that took place on the 27th and 28th of December 2005. At the outset the emails between Trafigura employees made reference to the substantial profits which could be realised by selling the washed coker naphtha: “This is as cheap as anyone can imagine and should make serious dollars”, claimed one trader (Email from JMN to LC, JT, FA, AH, Tue Dec 27 2005 16:54)
Interestingly some Trafigura traders appear dismissive of the challenges presented by the washing process. In particular, the hazardous waste produced by the washing is downplayed: “This is not very hazardous in the overall scheme of things, a bit of caustic in some water with trace gasoline” (Email from JMN to NA, LC, JT, FA, AH, Tue Dec 27 2005 22:42). However, further commentary by Trafigura employees revealed the problems associated with the caustic washing of such cheap oil: “...US/Singapore and European terminals no longer allow the use of caustics soda washes since local environmental agencies do not allow disposal of the toxic caustic after treatment” (Email from NA to JMN, LC, JT, FA, AH, Tue Dec 27 2005 19:29).
In an email from a London-based Trafigura employee, it is argued that the solution to a lack of facilities willing to engage in caustic-soda washing is to employ a ‘floating’ location for the caustic washing. Consequently a decision was made for the Probo Koala to drop anchor off the coast of Gibraltar. It was then turned into a floating processing facility. But the problem of waste disposal remained: “...we still need to find a company that will take the waste” (Email from NA to JT, JMN, LC, FA, AH, Tue Dec 27 2005 19:31).
On 28th December 2005, a chemist based in Trafigura’s London office wrote the following about caustic washing: “This operation is no longer allowed in EU / US and Singapore. Caustic washes are banned by most countries due to the hazardous nature of the waste (mercaptans, phenols, smell) and suppliers of caustic are unwilling to dispose of the waste since there are not many facilities remaining in the market. There is a company in Rotterdam that burns such waste in a high stack chimney and charges are approx $200/kg and could have up to 1000kgs of sludge after a treatment operation. Under EU law you no longer allowed to transport such waste across EU borders” (Email from NA to LC, JMN, Tue Dec 28 2005 15:11).
These emails clearly show that in 2005 Trafigura were fully aware that the waste produced by the caustic washing process was hazardous, including the CEO who was cc’d into the discussion by his employees. The extremely hazardous character of this waste generated a serious dilemma – if Trafigura was to realise large profits from this “great cheap blendstock”, they had to discover an ‘innovative’ method for dumping the waste that did not seriously impact upon profit margins. At first, a cheap solution was found in Tunisia, where the company could discharge the waste. However, this option was closed when personnel at La Skhirra (Tunisia) complained of the offensive odour of the waste, and health problems.
In late April 2006, communications over the issue of the waste material display a more desperate tone, emails now bore the subject “PMI Shit”: “…we are coming up with some problems regarding treating/disposing of the PMI naphtha out of Brownsville. We are now limited to caustic washing on a ship. La Skhirra (Tunisia) where we were washing/discharging will not let us discharge this material anymore, so the ship we're using for washing is now converted to floating storage. We also still haven't tackled how we will dispose of the washings on board the vessel washing the cargo” (Email from LC to JT, Tue Apr 18 12:36:19 2006).
Without a cheap, legal solution for waste disposal, the corporation turned to deviant means. The following message sent to the captain of the Probo Koala illustrates a clear intention on the part of the Trafigura to hide the nature of the waste: “pls ensure that any remains of caustic soda in the tanks' interface are pumped into the slop tank to the best of your ability and kindly do not, repeat do not disclose the presence of the material to anyone at La Skhirra and merely declare it as tank washings” (emphasis added) (Email From Cpt Theologs Gamierakis (as agents for and on behalf of Trafigura) to Probo Koala April 15 2006).
In late June 2006, the possibility of offloading the waste in Amsterdam is considered. An email is sent by Trafigura to Amsterdam Port Services (APS) seeking a quote for disposal of the so called ‘slops’.
The Probo Koala docked in Amsterdam on the night of 2nd July 2006. APS collected some material from the Probo Koala’s slop tanks and noticing a strong smell, took a sample. Based on toxicity of this sample, APS then gave Trafigura a revised cost estimate for treatment at Rotterdam, following an original quote that was provided on 20th June 2006. Disposal rates went up from €20 per m3 to €900 per m3, consequently the total cost per shipment went from €10,000 to about €500,000. Trafigura rejected this quote and ordered the waste to be reloaded onto the Probo Koala (UNHRC 2009).
Chapter 3: The Ivory Coast Dumping Part Two - Amsterdam to Abidjan
Trafigura tried to offload the toxic waste in Nigeria. According to the company, “the slops were not discharged in Nigeria as it was clear that there were insufficient facilities in place to receive them” (BBC 2009). After unloading its low grade gasoline cargo at Lomé and Lagos, the Probo Koala sailed to the Ivory Coast. Since the tanker did not have any cargo, and none was scheduled to be picked up, its journey to Ivory Coast could only have been to unload the toxic waste. In an email dated 17th August 2006, an employee of Trafigura contacted the head of Puma Energy Ivory Coast, a local Trafigura subsidiary: “we would like to discharge approx 528 CBM of… a mix of Gasoline with caustic Soda and high concentration of Mercaptan Sulphur” (National Commission of Inquiry 2006: 22). The mix was again referred to using the euphemism ‘slops’.
The Marpol Convention at 11(d) enumerates a list of waste receiving facilities in each state and includes details of their capacity. Ivory Coast is not listed as possessing any suitable facilities. The National Commission of Inquiry (2006: 51) – organised by the Ivorian state following the dumping – note that this fact was acknowledged by the CEO of Trafigura and the West African Director of Trafigura.
Nonetheless, Puma Energy telephoned their shipping agents, WAIBS, who gave them the number for a “two-bit” (Day 2010) company called Compagnie Tommy – the organisation that was eventually contracted to receive the ‘slops’. Tommy is believed by some commentators to be a vehicle set up solely for the purposes of this transaction, and “had just been established in July” (Eze 2008: 352). A number of commentators maintain that Simone Gbagbo, the former Ivorian first lady, was involved in the incorporation of this company and an Ivorian journalist Edouard Denoua Gonto reports that he was arrested and charged with ‘offences against the head of state’ for publishing a newspaper article that suggested as much (Reporters Without Borders 2006).
Puma Energy asked Tommy to make an offer. Tommy’s offer took the form of a handwritten note (National Commission of Inquiry 2010: 24-25).
The terms and circumstances of this hand-written ‘quote’ suggest that Tommy was a ‘backyard’ operation. This view was supported by the National Commission of Inquiry (2006: 51) which argued that Tommy had neither, “the competence nor the technical or human means to treat the waste from the Probo Koala”. The inability of Tommy to deal with the toxic waste was a fact that Trafigura should have known or ought to have known. Furthermore, the offered price of about US$35 per m3 is significantly less than the Dutch quote of €900 per m3 (or approximately US$800 per m3). This should have put Trafigura on notice that further investigation was necessary.
Having taken up Tommy’s offer, the Probo Koala arrived at around 10am on Saturday, 19th August 2006 at the PETROCI wharf in the Port of Abidjan. WAIBS (Trafigura’s shipping agent) was on the wharf to supervise the reception of the waste and stated that their, “role involved helping the ship’s commander in his dealings with the port authorities” (National Commission of Inquiry 2006: 29). WAIBS claims that port service agents from the Administrations for Maritime, Health, Immigration, Pollution and Environment boarded the ship (how it was that none of these agencies were able to determine that the waste was harmful is dealt with below). However, these agents failed to exercise their control function. As a result, Trafigura was able to get their ship docked and the toxic waste unloaded.
The dumping process started with the collection of material from the Probo Koala on Saturday, 19th August 2006 at about 1pm. Tommy had hired around twelve tank-trucks with drivers. During the night of 19th August and into the morning of 20th August these trucks “deposited the waste at 18 locations around the … city” (UNHRC 2009), as access to the city dump had been denied to drivers after the first three truck-loads of waste were dumped there. Consequently, “the other drivers panned out across the city and just dumped it wherever they could” (Day 2010). Waste was dumped “into vegetable fields, water-courses and outside a baby-food factory” (Goode 2010). By dawn toxic waste had been dumped at sites all around Abidjan.
According to the International Commission of Inquiry on the Discharge of Toxic Wastes in the District of Abidjan (the ‘International Inquiry’) official estimates are that 15 people died, 69 were hospitalised and over 108,000 medical consultations were sought as a result of the dumping (CIEDT 2007) (also referred to in UNHRC 2009).
The National Commission of Inquiry (2006: 7) found that: "Since Sunday August 20, the nauseating odour emanating from this waste has spread considerably and polluted the surrounding atmosphere. Because of its high level of toxicity, the inhabitants of the contaminated areas had to at some points abandon their homes".
Indeed within days thousands of people living near the dumping sites started to complain of “nosebleeds” (WHO 2006) “nausea, headaches, vomiting, abdominal pains, skin reactions and a range of eye, ear, nose, throat, pulmonary and gastric problems” (UNHRC 2009: 9). The World Health Organization (WHO) argued that these symptoms were, “consistent with exposure to the chemicals known to be in the waste” (WHO 2006). An internal report produced for Trafigura (the Minton Report) confirmed that, “possible consequences are burns to the skin, eyes and lungs, vomiting, diarrhoea, loss of consciousness and death”. Trafigura went to great lengths to prevent these findings from going public (Leigh 2009; MacManus 2010).
The following victim testimony, recorded at the end of 2010, reveal how that the affects of the waste from the Probo Koala continued long after the ship left port.
Chapter 4: Deviance of the Trafigura Corporation and its Subsidiaries
The waste dumped by Trafigura was described as a “mixture of tank washing, petrol and caustic soda”, “oily tank washings and cargo residues”, “watery cleaning liquids” and “waste from steam degreasing” (quoted in UNHRC 2009: 17) (Hulshof Commission 2006). A UN report notes that upon arrival in Abidjan, Trafigura called the waste, “chemical waste water” (UNHRC 2009: 17). The UN Special Rapporteur argues that this demonstrates a lack of transparency, “the discretion with which different descriptions were used appears to be broad and not conducive to transparent decision-making on the treatment of potentially toxic waste” (UNHRC 2009: 17).
Not only did Trafigura fail to exercise appropriate due diligence, their actions allegedly breached both international and domestic law. Marpol (1973/1978) is the International Convention for the Prevention of Pollution from Ships, 1973 as modified by the Protocol of 1978. ‘Marpol’ is short for ‘marine pollution’. The waste produced by the onboard caustic washing fell within Regulation 3(1)(A) of Marpol Annex II (as interpreted under Appendix 1 of Annex 2) and Regulation 5 of Marpol Annex II. Regulation 5 requires the disposal of Regulation 3(1)(A) waste to a suitable reception facility and no such facility was available in Abidjan.
The waste was also likely covered by the Basel Convention under Annex 1, as it had properties which are listed in Annex III. The Ivory Coast ratified the Basel Convention in 1994. The Convention is specifically designed to prevent incidents such as the one under study here, i.e. to prevent transfer of hazardous waste from developed to less developed countries. The preamble to the treaty states that the signatories are: “Concerned about the problem of illegal transboundary traffic in hazardous wastes (and) the limited capabilities of the developing countries to manage hazardous wastes” (The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, Preamble). No notice of the importation of the waste was given as required under Article 6 of the Basel Convention. The case has also shown failures of the institutional and operational systems implemented by these international treaties. For example, under the Basel regulations, the German authorities should have been notified of the ship's passage through its waters; they were not.
Furthermore, no notice of the importation was given as required by Article 9 of the Bamako Convention, ratified by Ivory Coast in 1994. Trafigura’s actions allegedly also breached Ivorian law. Domestic, Ivory Coast Law S8-651 of 1988 prohibits the importation, deposit or storage of industrial toxic waste. This law was allegedly violated by Trafigura, with state complicity (see chapter 5).
The dumping would have been illegal in Europe under Council Directive 91/689/EEC on hazardous waste as amended by Commission Directive 94/31/EC (Repealed by Directive 2008/98/EC on waste with effect from December 12th 2010) and Council Directive 99/31/EC of 26 April 1999 on the landfill of waste. While these directives have no direct legal effect in Ivory Coast, they would be well known to Trafigura which has an extensive presence in Europe.
As outlined at the beginning of this case study, the crimes under study in Ivory Coast are not limited to Trafigura and its subsidiaries and agents; the state’s role is crucial in understanding the mechanics of a state-corporate crime. The waste was repelled from the states of Estonia and Nigeria before arriving in Ivory Coast, where it was welcomed. But what is it about the character of the Ivorian state that allowed the waste to be dumped there when it had proved so difficult elsewhere? The next section will look at the deviance of the Ivorian state.
Chapter 5: Deviance and the Ivorian State
In order to collect and dump waste Tommy needed a government sanctioned Licence. Before granting a licence to companies like Tommy, Customs Services are supposed to attend a License Commission meeting. Despite the fact no such meeting had been held, Customs Services granted the probationary license which allowed Tommy to act as, “maritime chandler specialised in refuelling, maintenance and refuelling of ships in the Port of Abidjan” (National Commission of Inquiry 2006: 58). Tommy submitted its request for a full maritime chandler’s licence on 7th June 2006 and it was granted on 12th July 2006. Again, Tommy’s request for a full operating licence was granted without reference to the License Commission. The General Director of Maritime and Port Affairs justified this breach of the law on the basis that they wished to avoid an appeal to the Prime Minister’s office (National Commission of Inquiry 2006: 44). The granted licence held Tommy out as an organisation competent to receive hazardous waste. Consequently the circumnavigation of administrative rules in awarding the licence was a contributing factor to the dumping.
However, defective regulatory practices continued when the waste material arrived in Abidjan. Having contracted Tommy to dispose of the washings, “the receipt of the toxic waste had its starting point with the authorisation for entry into port of the Probo Koala ship” (National Commission of Inquiry 2006: 28). This authorisation was requested from the Port Abidjan Captaincy by WAIBS (Trafigura’s shipping agent) and was received by the Transmissions Agent of the Port in the afternoon of 18th August, who noted the mention of “waste water”.
Nevertheless, the toxic waste was not investigated. Indeed, the Director of the Coastguard stated that the General Director of Maritime and Port Affairs suspended the Maritime Police’s activities in 2004 in order to avoid "agent abuse" (National Commission of Inquiry 2006: 31). Therefore his agents only board a ship to locate defects in the ship and to check that its equipment meets International Maritime Organization standards. In this case his agents, “did not detect any defects likely to cause any accidents in the sea” (National Commission of Inquiry 2006: 31). The Director also claims that his department was, “not alerted to any particular security or pollution problems” (National Commission of Inquiry 2006: 31). As a result, authorisation was granted. This exchange suggested that the corruption of the Maritime Police created a situation which precluded them from effectively carrying out their duties.
Another contributing regulatory defect, was the failure of customs to properly inspect the Probo Koala. The Customs General Director told the National Inquiry that he had, “well before the arrival of the Probo Koala ship, prohibited his agents from going on board oil tankers and ships which did not unload merchandise … to avoid bothering the ships’ crews” (National Commission of Inquiry 2006: 58). This seriously hampered customs ability to stop the importation of toxic waste. Customs Services claim to have not found out about the toxic waste until after the Probo Koala had departed. This indicates there were serious problems with their intelligence collection procedures. Accordingly the National Inquiry found, “a malfunctioning of the Custom Administration … contributed to the dumping of toxic waste in the Abidjan District” (National Commission of Inquiry 2006: 59).
The District of Abidjan also had responsibility for environmental protection and the management of waste. During his hearing before the National Inquiry, the Governor of the Abidjan District stated, “as a District, we are not concerned with the management of industrial waste” (National Commission of Inquiry 2006: 66). However, the National Inquiry found the Governor’s statement, “has no legal founding” (National Commission of Inquiry 2006: 66). It was also claimed the Governor contributed to the dumping and “in no way carried out the mission to protect the environment” (National Commission of Inquiry 2006: 66).
Compounding these failures to detect, were failures to apprehend. On 21st August, Ivorian Anti-Pollution Centre (CIAPOL) in collaboration with the Central Environmental Laboratory and the Anti-pollution Police Services Unit, traced the toxic waste to the Probo Koala but were refused boarding by its crew. They did, however, take samples of the toxic waste that had spilled on the wharf when being pumped from the ship to the trucks. Later that day, CIAPOL issued a formal notice to the Probo Koala, “to immobilise the boat until the nature of its cargo had been determined” (National Commission of Inquiry 2006: 36). The notice was sent to WAIBS as well as the Port Authority, the District of Abidjan and the Ministry for Environment, but none of these government agencies prevented the ship from leaving port. The captain of the Probo Koala had insisted that only the Commander of the Port/Harbourmaster (Colonel Bombo) could prevent the ship from leaving. The CIAPOL Director went to the Commander of the Port’s office to ask for help in stopping the departure but the commander insisted that the state Public Prosecutor be summoned first. The CIAPOL director asked for half an hour to summon the Public Prosecutor, to which Bombo replied:
"At any rate, blocking a boat is very expensive and necessitates appropriate authorisation, in so far as the ship had actually provided all of the required documents." (National Commission of Inquiry 2006: 41)
The CIAPOL Director then requested a meeting with the General Director of the Port, Gossio. Upon arrival at the General Director’s office, the Commander of the Port was already there. The CIAPOL Director made a request to immobilise the Probo Koala. Gossio asked for Bombo’s opinion, who stated that, “the ship was not at fault and thus could only be blocked at the request of the Public Prosecutor” (National Commission of Inquiry 2006: 41). According to the CIAPOL Director, Gossio then stated, “you heard it, go and get the DA order or there is nothing I can do” (National Commission of Inquiry 2006: 41). To which Bombo added: “at any rate the Probo Koala ship is already on its way” (National Commission of Inquiry 2006: 41).
Chapter 6: Conclusion
Evidence suggests that toxic dumping is facilitated by a broad opportunity structure coupled with strong motivation, a situation that is compounded by deficient legal enforcement of constraints and controls. The illegal export and movement of toxic waste around the world is a “thriving business” and an “infamous trade” (Eze 2008: 351). Dimas estimates that, “up to half of the sea transports of hazardous materials could be illegal” (quoted in Helsingin Sanomat 2006). Looking at the Abidjan dumping Eza argues this case evidences, “a drastic lack of capacity of a large number of countries to manage waste in an environmentally sound manner” (Eze 2008: 351).
Lasslett (2012: 128) argues that, “the crime’s phenomenal nature sets a gradient of difficulty, which will shape the practice’s amenability to exposure and analysis”. The dumping presented multiple barriers to analysis; scientific – due to the complex chemical composition of the waste; medical – determining the health impact of the waste required specialist knowledge; legal – the corporate veil of a close company is very difficult to penetrate; geographical – the location of the crime in a poor post-conflict West African country made accessing information difficult. These difficulties were compounded by the reaction of Trafigura to public scrutiny. The corporation engaged in widespread cover-up and public relations offensive, making it even more difficult to collect and analyse data.
References
Amnesty International and Greenpeace (2012), A Toxic Truth: About a Company Called Trafigura, a Ship Called the Probo Koala, and the Dumping of Toxic Waste in Côte d’Ivoire, report available online.
BBC Newsnight (2009) ‘Trafigura statement’, 16th September 2009, available online.
Day, M. (2010) ‘Keynote Address to Symposium on Business and Human Rights’, University of Essex, 17th September 2010.
Emeka, D. (2001) ‘Multinational Corporations and Compliance with International Regulations Relating to the Petroleum Industry’, Annual Survey, International & Comparative Law, 7, 101.
Eze, C. (2008) ‘The Probo Koala Incident in Abijan Cote D’Ivoire: A Critique of the Basel Convention Compliance Mechanism’, Eighth International Conference on Environmental Compliance and Enforcement, 351 – 361, Geneva: United Nations Environment Programme.
Helsingin Sanomat (2009) EU Commissioner Dimas denounces actions of tanker Probo Koala, 9 September 2006, available online.
Hulshof Commission (2006), Confidential Report of Findings of the Investigation of Events Surrounding the Arrival, Stay and Departure of the Probo Koala in July 2006 in Amsterdam, available online (Dutch language).
Jenkins, A. and Braithwaite, J. (1993) ‘Profits, Pressure and Corporate Lawbreaking’, Crime, Law and Social Change, 20, 221-232.
Kramer, R. C. Michalowski, R. J. and Kauzlarich, D. (2002) ‘The Origins and Development of the Concept and Theory of State-Corporate Crime’, Crime & Delinquency 48(2), 263.
Lasslett, K. (2010) A Critical Introduction to State-Corporate Crime, International State Crime Initiative, available online.
Lasslett, K. (2012) ‘Power, Struggle and State Crime - Researching through Resistance’, State Crime 1(1), 126-148.
Leigh, D. (2009), ‘Minton report: Carter-Ruck give up bid to keep Trafigura study secret’ The Guardian, 16 October 2009, available online.
Lowe, A.V. (1975) ‘The Enforcement of Marine Pollution Regulations’, 12 San Diego Law Review 624.
MacManus (2010) Interview by Human Rights in Ireland, ‘Resisting State Crime in Ivory Coast’, 14 June 2010, available online.
Punch, M. (2000) ‘Suite violence: Why managers murder and corporations kill’, Crime, Law & Social Change,33, 243–280.
Reporters Without Borders (2006) 'Court imposes heavy fine on three journalists for insulting president', 18th September 2006, available online.
Tombs (forthcoming), 'State-Corporate Symbiosis in the Production of Crime and Harm', State Crime, 1(2).
United Nations General Assembly (2008), Human Rights Council, Report of the Special Rapporteur on the Adverse Effects of the Movement and Dumping of Toxic and Dangerous Products and Wastes on the Enjoyment of Human Rights, Okechukwu Ibeanu, Mission to Côte d’Ivoire (4 to 8 August 2008) and the Netherlands (26 to 28 November 2008), A/HRC/12/26/Add.2 (3 September 2008), available online.
World Health Organisation (2006) Chemical dump in Côte d'Ivoire, 15 September 2006, available online.
