Feature: Laying waste in the Ivory Coast
Thursday, 17 September 2009 12:00 AM
How the British arm of an oil multinational found itself embroiled in accusations of dumping toxic waste in the Ivory Coast.
By Ian Dunt
It was the largest group injury claim in UK legal history. Trafigura, the British operating arm of the world's third-largest independent oil multinational, agreed with a court late in 2008 that it would no longer defend its conduct in transporting toxic waste to the Ivory Coast. Victims' lawyers say the waste led to health problems in thousands of people.
It happened very quietly. On October 23rd, Trafigura accepted a high court order in which they agreed to no longer defend key parts of a case questioning their actions in the build up to the dumping in August 2006.
Some 30,000 Ivorians had brought the case against the company for transporting the waste and then handing it over to a man who disastrously mismanaged it.
"He had no equipment apart from an open dumpsite," Martyn Day, senior partner at Leigh Day & Co and solicitor for the claimants, told politics.co.uk last year. "He didn't even own any trucks."
The order meant that when the trial went to court this year, the case would only look at whether the waste made people ill, and would no longer question the way Trafigura conducted itself. As it turned out, there would never be a case. Last night, news emerged that Trafigura would settle.
It sounds paradoxical, but last year British human rights lawyers Leigh Day & Co were conflicted. The agreement brought their clients much closer to compensation, but the company's behaviour would never be subject to the full scrutiny of the courts, with all the media attention that entails.
This is how it started. Two years ago, Trafigura's ship, the Probo Koala, docked in Abidjan in the Ivory Coast. It then passed 528 cubic metres of waste to a local company called Tommy, headed by Salamon Ugborugbo. Ugborugbo's company dumped the waste in several different areas of the city, the largest in the Ivory Coast and home to the country's commercial and banking centre.
Ivory Coast government reports estimate over 100,000 people became ill as a result of exposure to the waste, with 15 people dying.
"Certainly, human rights were violated in the Ivory Coast," Okechukwu Ibeanu, special rapporteur of the United Nations Human Rights Council on the adverse effects of illicit movement and dumping of toxic waste on human right, told politics.co.uk last year, as he wrote a report into Trafigura's behaviour.
"It is very well known that a right to health and a right to information and, you know, even a right to life was widely violated. There's no debate about that. The debate is about whether this was a result of dumping the waste and who has the liability."
There were two main parts to Trafigura's defence.
One, that the waste had been passed on to an authorised waste disposal company. Trafigura said that Ugborugbo had all the necessary permissions. That argument seemed weak, according to the victims' lawyers, as he only just set up his firm and had no decent facilities or experience in treating waste like this.
Ugborugbo was charged with poisoning in a major criminal trial in the Ivory Coast earlier this year and sentenced to 20 years in jail.
Second, the company said the waste wasn't toxic in the first place. That argument is also hotly disputed by the victims' lawyers.
"There's no question it was toxic," Day told politics.co.uk. "The only question is 'how toxic?'"
The waste originated from a cargo cleaning process. Trafigura had purchased cheap oil cargoes with very high sulphur levels. On board the ship, they 'washed' it to remove the sulphur by mixing in caustic soda. This unusual process created a complex and extremely alkaline mixture of caustic soda and gasoline, allegedly contaminated by phenols, disulfides, mercaptans and hydrogen sulphide. The victims claim these compounds, dumped near their homes, made them sick.
"If you're exposed to these gases they cause immediate reactions," Day continued. "They had vomiting, diarrhoea, eye problems, skin problems, respiratory problems. A significant proportion are complaining about ongoing symptoms."
The caustic washing process originated in an attempt to increase the value of the oil being shipped across the world. It's a complex process, and there are concerns that countries accepting this waste are fundamentally unable to deal with it.
"The problematic thing is the capacity, in terms of technology, to treat these wastes in developing countries is not there," says Ibeanu. "So there's a responsibility on behalf of the export countries to make sure local companies can deal with these wastes."
According to the Ivory Coast victims' lawyers, Trafigura had attempted to 'wash' sulphur from raw gasoline earlier that year at the Mediterranean port of La Skhirra in Tunisia. The resulting gases caused significant health problems, leading to a ban from the port authorities.
It was then the decision was made to conduct the washing process at sea, off the Gibraltar Coast. Washing the cargoes generated waste, which needed to be disposed of.
A prosecution of Trafigura in the Netherlands claimed that when they tried to take the waste to Amsterdam, the company unsuccessfully attempted to pass it off as ordinary waste created by washing out cargo tanks. Last year, Trafigura tried to get these charges against them in the Netherlands thrown out. The Dutch court said the prosecution should continue. It is still ongoing.
With that criminal case still looming, and with Mr Ugborugbo in jail, the company took the option of least resistance.
"In early September we served them a whole host of documents and with a dossier of requests regarding their defence, which I think were unanswerable," Day continued. "They realised the game was up."
In the UK, the court order that Trafigura agreed meant that when the case was set to go to trial in October 2009, Trafigura only had to prove their line that the waste was not dangerous. They would not have to justify to a UK judge their behaviour in Amsterdam or why they trusted Ugborugbo. But it was all for nothing. The case would never go to court.
Meanwhile, the company were successfully managing to battle legal actions against them. "Although the company Tommy was directly responsible for dumping the toxic waste in Abidjan, it acted on instructions from Trafigura and its Cote d'Ivoire affiliate Puma Energy, both of which have not been part of this trial," Marietta Harjono, senior campaigner at the genetic engineering, shipping and toxic department of Greenpeace Netherlands, told politics.co.uk.
"This omission is a direct consequence of an obscure deal between the president of the Ivory Coast and Trafigura in February 2007. By paying £152 million towards clean-up costs, without accepting liability or responsibility for the dumping of toxic chemical wastes, Trafigura bought off the prosecution," she claimed.
In actual fact Trafigura signed an out of court settlement with the president of the Ivory Coast for $198m in February 2007 for damages suffered by the State, reimbursement for decontamination costs and compensation for victims.
"Not only is there no assurance that this payment is adequate, as a result of the deal the public will never know what actually happened and who was responsible, and won't be able to ensure that such a disaster never happens again," she added.
Trafigura is sticking to its line, so much so that there is a libel case pending against the BBC. Moreover, media coverage of the waste dumping and pending litigation has been dogged by threatened or actual litigation against numerous media organisations. Fear of such legal action prevented the publication of much of the above information by politics.co.uk last year.
Meanwhile, the financial settlement for the more than 30,000 claimants has yet to be agreed.
Today Trafigura released a statement saying: "It currently appears that this settlement is likely to be acceptable to most, if not all of the claimants. Claims are not being made in this litigation for deaths, miscarriages, still births, birth defects and other serious injuries. Trafigura has always maintained that the dumped slops could never have caused the deaths and serious illnesses which have been alleged."
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