Tag Archives: environmental law

Why Shell Violates the Law: Arctic Pollution

shell stock

Royal Dutch Shell Plc (RDSA) agreed to pay $1.1 million for violating permits regulating air pollution from its oil-exploration fleet in the Arctic Ocean last year.  The settlement announced by the US Environmental Protection Agency said that vessels scouting for oil in Alaska’s Beaufort and Chukchi seas for two months in 2012 didn’t use all mandated pollution-control or monitoring equipment. The EPA had set the requirements as a condition for issuing a permit for Shell’s Arctic exploration.

“Based on EPA’s inspections and Shell’s excess emission reports, EPA documented numerous air permit violations for Shell’s Discoverer and Kulluk drill ship fleets,” the agency’s Seattle office said in a statement late yesterday. Shell suspended its Arctic operations after a series of mishaps in 2012 as it sought oil off Alaska’s North Coast. In December, the drill ship Kulluk broke free of a tow boat in a storm and was stranded on an uninhabited Alaska island. In September, a containment dome designed to cap spills had difficulty getting certified and was damaged during tests.

The air permit violations are a separate from the failed tow and containment device. The fines are $710,000 related to the Discoverer and $390,000 for the Kulluk, the EPA said.

Excerpt, Mark Drajem, Shell to Pay U.S. $1.1 Million for Arctic Air Pollution, Bloomberg, Sept 6, 2013

See also The Arctic Challenger

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Suing Multinational Corporations in US Courts: Kiobel v. Shell

oil pollution

The Alien Tort Statute (ATS)… grants American district courts jurisdiction over “any civil action by an alien for a tort only, committed in violation of the law of nations or of a treaty of the United States”. At the age of 190 it sprang back to life on April 6th 1979, when it was used to allow two Paraguayans to sue a former Paraguayan policeman in an American court for acts of torture committed in Paraguay.Since then, roughly 150 lawsuits have been filed against American and foreign corporations for actions committed around the world. Four local plaintiffs used the ATS to sue Unocal in a federal court in Los Angeles for human-rights violations allegedly committed during the construction of an oil pipeline in Myanmar. A human-rights organisation used it to sue Yahoo on behalf of two Chinese democracy activists for actions committed in China by a subsidiary. ATS suits against DaimlerChrysler and Rio Tinto, among others, are pending. Though most ATS cases have been dismissed or settled, the costs of settlements can be high and the negative publicity damaging.

Multinational companies will therefore cheer the Supreme Court’s unanimous decision in Kiobel v Royal Dutch Petroleum (Shell), released on April 17th, 2013. It dramatically limits the ability of plaintiffs to file suit against corporations in American courts for actions committed abroad.  The ruling stems from a case brought in New York by 12 Nigerian plaintiffs living in America. They allege that Shell was complicit in human-rights violations—including murder, rape, theft and destruction of property—committed by Nigeria’s armed forces in the region of Ogoniland. A federal appeals court dismissed their suit, arguing that the ATS provides no grounds for corporate-liability lawsuits. But as the 150 ATS suits show, other courts have disagreed. The Supreme Court agreed to hear the case in order to settle the question.

In an earlier ruling, in 2004, the court cautiously ruled that the ATS permitted lawsuits for “a modest number of international law violations”, such as piracy and crimes involving ambassadors, which would have been recognised when it was adopted. The court’s Kiobel ruling goes much further. It holds that the ATS does not apply to actions committed by foreign companies, and noted a strong presumption against applying American law outside the United States, “There is no indication,” wrote John Roberts, the chief justice, “that the ATS was passed to make the United States a uniquely hospitable forum for the enforcement of international norms”.  In a separate concurrence, four of the court’s liberals took a slightly softer tack, arguing that the ATS should allow suits that prevent America from becoming “a safe harbour…for a torturer or other common enemy of mankind”. But that reasoning still does not permit foreign nationals to use American courts to sue foreign companies for acts committed on foreign soil.

Extraterritoriality: The Shell game ends, Economist, Apr. 20, 2013, at 34

The Price for Shipping Minerals: life

Harita Bauxite IMO 8103664

A dark underbelly exists in Indonesia’s thriving trade with China. Since late 2010 five ships loaded with Indonesian minerals have sunk when bound for China, with huge loss of life. Little has been done to break the deadly trend. Indeed, plenty of interests have an incentive to hush it up. The latest ship to founder is the Harita Bauxite, a bulk carrier which sank on February 17th near the Philippines. Of its 24 crew, who were all or mainly from Myanmar, ten were rescued, one of whom later died. Fourteen were still missing when the search was called off two weeks later.

The vessel is thought to have been carrying nickel ore, a potentially deadly cargo, loaded on Obi island in the remote Indonesian province of Muluku and destined for China’s steel mills. In terms of the global bulk trade, shipments of nickel ore from Indonesia to China are tiny: just 2m-3m tonnes out of more than 4 billion tonnes of bulk goods carried each year on over 9,000 vessels. Yet this backwater trade accounted for four of the 20 bulk freighters lost worldwide during 2010-11, and for 66 of 82 deaths, according to Intercargo, an association of ship owners.

ll four ships were found to have sunk because the cargo had liquefied. Nickel ore is dangerous because if it gets too wet, the fine, claylike particles that are often present in the ore turn the cargo to a liquid gloop that sloshes about the holds with such momentum that even a giant ship can capsize. The four ships had loaded during Indonesia’s rainy season. The ore is typically stockpiled in the open. Quite how the Harita Bauxite foundered is not yet clear, but if liquefaction was a factor, as many in the shipping industry suspect, it will have been another entirely avoidable tragedy.

Preventing liquefaction should be fairly simple. It involves checking the moisture content of susceptible commodities. If they are too wet, a surveyor will deem the cargo unsafe and not to be loaded. Time and again in Indonesia, checks have been inadequate. With the bulk-shipping business in the doldrums, the profitable nickel trade is a siren call for ship owners and charterers. Indonesia’s ministers and mandarins in Jakarta, the capital, refuse to comment on the tragedies and have done little to tighten policing at faraway ports in Sulawesi, Muluku and Papua.

Ship captains report intimidation by miners and agents if they refuse to accept cargo. A leading marine insurer says the ports’ remoteness makes it hard to sample cargoes reliably. Local officials turn a blind eye to unsafe practices. Peter Lundahl Rasmussen at Bimco, a maritime association, says surveyors trying to do their job have been assaulted or arrested.

With insurance claims mounting, shipping bodies and insurers have issued plenty of instructions about how to load nickel ore safely, especially in Indonesia. The International Maritime Organisation (IMO), the UN agency responsible for shipping safety, is also taking steps to tighten the regulations for commodities that can suffer liquefaction.

But the IMO’s process is a glacial one, and the new rules will not clear its various committees and be promulgated until at least 2015. Even then, the organisation relies on its members to enforce regulations. In Indonesia, in other words, the impact of tighter rules may be minimal. Moreover, existing and planned legislation covers ore depots and the ports, but not the transit between the two, where rain may do its dangerous work. Steve Cameron at RTI, a risk consultancy, argues that it would be more effective if mining companies faced charges of corporate manslaughter for not ensuring that their ore reaches ships in good condition.

Shipping: Deadly Trade, Economist, Mar. 23, 2013, at 46.

 

The Oil Spill at a Home Near You: ExxonMobil

exxonmobil2

The Arkansas [United States] attorney general said Tuesday that he will investigate the cause and impact of an oil spill after an ExxonMobil pipeline ruptured  State Attorney General Dustin McDaniel also is asking ExxonMobil to preserve all documents and information related to Friday’s oil spill and ongoing cleanup efforts in Mayflower, a small city about 20 miles northwest of Little Rock.

Crews have recovered about 12,000 barrels of oil and water since the Pegasus pipeline started leaking. Investigators are still working to determine what caused the spill, which led authorities to evacuate nearly two dozen homes.”It’s obvious that the rupture was not the fault of the state and the state has been damaged in addition to the private property owners,” McDaniel told reporters Tuesday.

In a letter to ExxonMobil officials dated Tuesday {April 2, 2013], McDaniel said he believes the company may have liability for the consequences of the spill under the Arkansas Water and Air Pollution Act and other applicable laws.”There are many questions and concerns remaining as to the long-term impacts, environmental or otherwise, from this spill,” McDaniel wrote.

Some of the environmental effects began to come into focus Monday [April 1, 2013] as officials said a couple of dead ducks and 10 live oily birds had been found since the oil spill.  McDaniel said he has communicated with attorneys general in other states that have seen larger spills, including Louisiana and Mississippi.   “We don’t want to overreact, but obviously a prudent response would require investigating the cause and determining what remedies are available and appropriate for the state,” McDaniel told reporters.ExxonMobil spokeswoman Kim Jordan said the company will cooperate with McDaniel’s office.

The pipeline that ruptured dates back to the 1940s, according to ExxonMobil, and is part of the Pegasus pipeline that carries crude oil from the Midwest to refineries in the Gulf of Mexico.

Arkansas will investigate ExxonMobil oil spill, Associated Press, April 2, 2013

Haunted by Sellafield, nuclear waste storage in the UK

Sellafield, image from wikipedia

The government’s long-term hopes of burying nuclear waste in the UK has suffered a major blow after Cumbria county council voted against plans for a £12bn underground site.  Three local authorities – Cumbria county council, Allerdale borough council and Copeland borough council – were set to vote on the search for a site, which would have been the first of its kind in the UK.

Copeland borough councillors voted six-to-one in favour of moving to onto the next stage of the search process. But Cumbria county council took an opposing view, rejecting the proposals by seven votes to three, and in the process ending the county council’s four-year formal involvement in the consultation process.  “As a decision to continue with the process needed the agreement of both the district and county councils, Cumbria county council’s decision has removed both districts from consideration,” councillors said in a statement. The vote triggered huge cheers from environmental campaigners outside the council chamber in Carlisle.

Ed Davey, Secretary of State for Energy and Climate Change, said the decision was “disappointing”….

More than 32,000 people had signed a petition against the £12bn underground storage facility.However, the issue of how to handle nuclear waste remains live in Cumbria.  Sellafield’s nuclear storage facilities remain the largest in the UK, and the ten members of the county council’s cabinet also agreed that the council will encourage the Government to invest in improvements to the existing surface storage facilities at the site while a permanent solution for the country’s higher activity radioactive waste is found.

Campaigners {West Cumbria Friends of the Earth, Greenpeace) argued the underground dump would harm the Lake District national park and its tourism industry. They also claim that studies show Cumbria’s geology is unlikely to be safe for radioactive waste.

Excerpts, Cumbria rejects radioactive waste disposal programme, http://www.channel4.com/news/, Jan. 30, 2012

See also Nuclear Waste in the  UK

Rare Earths Pollution–Australia, Malaysia and the Lynas Corporation

from website http://savemalaysia-stoplynas.blogspot.com/2011/06/happening-events-part-2-stop-lynas.html

According to the Oeko Institute, a non-profit association:

The facility for refining Australian ore concentrate rich in rare earth metals of Lynas Corporation in Malaysia has several deficiencies concerning the operational environmental impacts. The environment is affected by acidic substances as well as from dust particles, which are emitted into the air in substantially larger concentrations than would be state-of-the-art in off-gas treatment in Europe. The storage of radioactive and toxic wastes on site does not prevent leachate from leaving the facility and entering ground and groundwater. For the long-term disposal of wastes under acceptable conditions concerning radiation safety a sustainable concept is still missing. These are the results of a study of Oeko-Institute on behalf of the Malaysian NGO SMSL.

In its facility in Kuantan/Malaysia Lynas refines ore concentrate for precious rare earth metals. These strategic metals are applied for example to produce catalysts…The ore concentrate to be refined in Malaysia additionally contains toxic and radioactive constituents such as Thorium. The NGO commissioned Oeko-Institute to check whether the processing of the ore leads to hazardous emissions from the plant or will remain as dangerous waste in Malaysia.

Storage of wastes insufficient

The storage of wastes, that are generated in the refining process, shall be stored in designated facilities on the site, separately for three waste categories. According to chemist and nuclear waste expert Gerhard Schmidt, there will be problems with the pre-drying of wastes that is of a high Thorium content. “Especially in the wet and long monsoon season from September to January, this emplacement process doesn’t work”, says Schmidt. “The operator has not demonstrated how this problem can be resolved without increasing the radiation doses for workers”.

Additionally the storages are only isolated with a one-millimeter thick plastic layer and a 30 cm thick clay layer. This is insufficient to reliably enclose the several meters high and wet waste masses. “For the long-term management of these wastes Lynas has urgently to achieve a solution”, claims Gerhard Schmidt, and adds: “in no case those wastes should be marketed or used as construction material, as currently proposed by the operator (Lynas) and the regulator (AELB/MOSTI). According to our calculations this would mean to pose high radioactive doses to the public via direct radiation”.

One of the most serious abnormalities is that in the documents relevant data is missing, which prevents reliably accounting for all toxic materials introduced”, says project manager Gerhard Schmidt. “So it is not stated which and to what amount toxic by-products, besides Thorium, are present in the ore concentrate. Also in the emissions of the facility via wastewater only those constituents are accounted for that are explicitly listed in Malaysian water regulation, but not all emitted substances.” The salt content of the wastewater is as high that it is comparable to seawater. This is discharged without any removal into the river Sungai Balok.

The scientists at Oeko-Institute evaluate the detected deficiencies as very serious. Those deficiencies should have been already detected in the licensing process, when the application documents were being checked. However the operator received a construction license in 2008 and a temporary operating license in 2012.

Especially for the safe long-term disposal of the radioactive wastes a suitable site that meets internationally accepted safety criteria has to be selected urgently. A consensus has to be reached with the affected stakeholders, such as the local public and their representatives. “If it further remains open how to manage those wastes in a long-term sustainable manner, a future legacy associated with unacceptable environmental and health risks is generated”, considers Schmidt. “The liability to prevent those risks and to remove the material is so shifted to future generations, which is not acceptable.”

Rare earths are important metals that are used in future technologies such as efficient electro motors, lighting and catalysts. In its study from 2011 “Study on Rare Earths and Their Recycling” Oeko-Institute showed that no relevant recycling of these metals is performed so far. Albeit recent positive developments in this direction: satisfying the prognosticated global requires the extension of the worldwide primary production.

Rare earth refining in Malaysia without coherent waste management concept, Oeko Institute Press Release, Jan. 28, 2013

See also  Oeko Report on Lynas (pdf)

The iPhone, radioactive waste and rare earths: the Lynas case

Illegal Toxic Waste Exports: Philippines, Taiwan, South Korea

The Bureau of Customs (Philippines) is looking into the alleged shipment in May 2012 of 14 containers of toxic waste from the Manila International Container Port (MICP) to Pusan, South Korea, via the southern Taiwanese port of Kaohsiung. The case is also being investigated by the International Police, according to Philippine Daily Inquirer sources at the BOC and National Bureau of Investigation.

Customs Commissioner Ruffy Biazon last month told this paper he had instructed MICP Collector Ricardo Belmonte to “give me a report” on the issue. Last week, Biazon disclosed “the feedback of Collector Belmonte is that there’s no such toxic waste shipment” from the MICP….

When contacted, Intelligence group staff said they were “still tracing the source” of the alleged hazardous waste, declared as stainless steel by its Metro Manila-based exporter.  The same sources added they were also “trying to determine if the Philippines was the shipment’s actual point of origin or just a transshipment point.”….

INQUIRER sources identified the shipper, the shipment’s consignee bank and contact party in Incheon, South Korea, but asked not to publish their names.  According to the shipment’s bill of lading, the 14 containers were loaded on the MV YM Immense, a container ship belonging to the Yang Ming Marine Transport, a shipping firm based in Keelung City, Taiwan.The Monrovia-registered vessel,[flag state Liberia] built in 2006, is 173 meters long and has a gross weight of 16,848 tons. Meanwhile, the BOC will closely scrutinize this year the business records of bureau-accredited exporters and importers and unmask not only smugglers but also fly-by-night and fictitious traders.  Biazon said “it’s true smuggling is still one of the biggest problems facing the bureau.” However, he emphasized “it’s not true that we are not addressing the problem.”

At the same time, he warned BOC officials and employees who have been making fortunes by conniving with smugglers, saying “the days of erring bureau personnel are definitely numbered.” “Those who continue to engage in illegal activities in connivance with smugglers will be targeted and will face the full force of the law,” according to Biazon.

Excerpt, Jerry E. Esplanada, BOC to pursue probe of alleged toxic waste shipment from Manila to South Korea, Philippine Daily Inquirer, Jan. 21, 2013

See also Overcoming National Barriers to International Waste Trade (pdf)