July 31, 2019

Transboundary Shipment of Waste: Threats of War, Toxic Colonialism, and Memories of Philadelphia

John K. Powell

Human population has doubled over the last 50 years, now approaching eight billion. By all accounts, habitation of the planet has been a success, but in some ways catastrophic. Along with population growth, the world has witnessed a proportional increase in consumption of food and natural resources and as a result, waste production. The intensity of consumption and overall quality of life varies greatly by country though, sometimes creating an unequal power dynamic that may allow more economically developed countries to take advantage of those struggling to provide basic needs. This imbalance has played out in the context of environmental law and policy with wars fought or threatened over access to clean air, water, and land, including the issue of waste disposal. This article looks back at the odyssey of the Khian Sea, revisits the unfortunate practice of toxic colonialism, and highlights a recent threat of war by the Philippines against Canada.

In the 1980s the city of Philadelphia, like many local governments, was facing a growing crisis: how to dispose of mounting municipal waste. Already significantly reducing the overall volume through incineration, there was still too much of it. By 1986, without any readily available solutions, the city hired an outside contractor, Joseph Paolino & Sons, for $6 million to dispose of their waste ash. In turn, Paolino & Sons subcontracted the work to Amalgamated Shipping Corporation. Around August 1986, a 466-foot barge, the Khian Sea, left port loaded with an estimated 15,000 tons of Philadelphia’s incinerator ash. The ship was headed for the Bahamas with the ash purportedly to be used as fill material. However, it was ultimately turned away by Bahamian authorities due to concerns about the ash composition, which typically included metals, dioxins, furans, and other toxic pollutants and carcinogens.

Over the next two years the ship was reported to have sailed to Puerto Rico, Antilles, the Dominican Republic, Jamaica, Panama, Honduras, Colombia, the Cayman Islands, Guniea-Bissau, and other unsuspecting countries in what became a desperate attempt to unload the unwanted cargo. During the long journey, the description of the waste conveniently changed from incinerator ash, to general cargo, then bulk construction material, and by the time it arrived in Haiti around January of 1988, top-soil fertilizer. Once in Haiti, the crew of the Khian Sea unloaded approximately 4,000 tons of ash onto the beaches of Gonaïves before environmentalists were able to inform Haiti of the potential risks. The government ordered the ash to be loaded back onto the barge, but the ship quickly set sail before complying. The abandoned ash is believed to have killed fish, marine life, goats, and other animals grazing in the area, and adversely impacted the health of the estimated 5,000 people living nearby.

The ship, with the bulk of the incinerator waste still onboard, headed back to the United States in what became an unsuccessful attempt to negotiate a new deal. Despite the U.S. Coast Guard’s directive not to leave, it left port once again in the middle of the night. By now, the plight of the Khian Sea was becoming internationally known. After disappearing for several months, the ship attempted more unloads including in Senegal, and was headed for Greece when it was ordered to dock in Yugoslavia because of an expired registration, before setting sail yet again. To help escape its notoriety, the ship was renamed the Felicia, the Pelicano, and later the San Antonio.

In November of 1988, the ship was discovered empty and the toxic cargo had mysteriously disappeared. The ship’s captain later testified that the crew used a front-end loader to dump the ash overboard, part of it into the Atlantic Ocean and part in the Indian Ocean. Two Maryland businessmen who operated the ship were convicted of perjury and went to jail. After considerable public pressure, in April 2000, what was left of the Haiti ash pile was loaded onto a barge and moved to Stuart, Florida, remaining for two years before being shipped by rail and truck back to Pennsylvania for final disposal at the Mountain View Reclamation landfill.

In response to public outcry following the Khian Sea debacle and others like it including a similarly infamous incident in 1988 when thousands of Italy’s hazardous waste drums were shipped to the small port town of Koko, Nigeria, the international community rallied to develop the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal (Basel Convention). The Basel Convention was adopted on March 22, 1989, by 53 countries and the European Economic Community to combat what had become referred to as “toxic colonialism” and prevent waste transporters from seeking inexpensive options to dispose of hazardous wastes in areas of the world where environmental awareness and enforcement were not yet fully developed.

As the primary international response regarding impacts from hazardous waste disposal on human health and the environment, the Basel Convention entered into force on May 5, 1992. Pursuant to the Basel Convention, a “notice and consent” system was established whereby trade in hazardous waste generally cannot take place without the importing country’s written consent or when the exporting country has reason to believe that the waste will not be handled in an environmentally sound manner.

The United States signed onto the Basel Convention in 1990, and in accordance with Article II, Section 2 of the U.S. Constitution, the Senate provided advice and consent to ratify in 1992. However, implementing legislation was never enacted and therefore the United States remains a non-party. There does not appear to be an intent to effectuate the Basel Convention anytime soon domestically. Despite the Basel Convention’s success and the heightened awareness over the issue of transboundary shipment of hazardous waste, it remains a very relevant and provocative topic as world populations are projected to reach almost 10 billion by 2050 along with a proportional increase in waste production.

Recently, Filipino President Rodrigo Duterte made international headlines when a Canadian company shipped nearly 2,500 tons of waste to the Philippines without securing the proper import permits or permissions. When the more than 100 containers arrived in Manila in 2013 and 2014, they were mislabeled as recyclable plastics, only to be later discovered as containing household waste, newspapers, and even diapers. A Philippine court declared the import to be illegal and the government filed diplomatic protests over the waste shipment.

Canada, a signatory to the Basel Convention, initially responded that the shipment was commercial in nature rather than government related. Nonetheless, after the issue began attracting considerable media coverage, Canada’s embassy in the Philippines said both countries were working to remove the waste in an expeditious and environmentally sound manner. However, six years later and without export permits yet applied for, a frustrated President Duterte said in a news conference that if needed he would “set sail to Canada and dump their garbage back there.” He continued “Let’s fight Canada. I will declare war against them.”

On May 15, 2019, Canada missed another deadline set by Manila to take back the waste, further escalating the conflict and prompting the Philippines to withdraw top diplomats from Canada. Duterte, running out of patience, ordered his government to hire a private shipping company to transport the garbage containers back to Canada and leave them within its territorial waters if necessary.

On May 31, 2019, 69 containers, with an estimated 1,500 tons of trash, were loaded onto a ship at the Port of Subic, northwest of Manilla, embarking on a monthlong journey back to Canada. Environmental activists were there for the sendoff holding signs such as “never again,” “good riddance,” and “we are not the world’s dump site,” and prompting Philippines Foreign Secretary Teodoro Locsin to tweet an image of the container ship with the message “Baaaaaaaaa bye.” Although the fuel consumption and carbon emissions associated with this trip are likely greater than the environmental impact from the mislabeled trash itself, this wasn’t just about the environment, it was about changing international paradigms. The containers arrived in Canada on June 29, 2019, with the trash to be incinerated in a waste-to-energy facility in Burnaby.

The years long dispute increased diplomatic tensions between the two nations and had incidental affects including Duterte’s recent termination of a $233 million military deal to buy 16 helicopters from Canada. These conflicts are far from isolated though, and rather indicative of much larger problem occurring around the globe. For example, Malaysia just announced that it will return 3,000 tons of contaminated plastic waste to the multiple countries that shipped it. China has also severely restricted the import of paper, plastic, and other recyclables.

Countries that have for decades agreed to accept waste from around the world are now restricting imports, unwilling to accept a disproportionate share of society’s burden and without any meaningful benefits. This change in direction is sending shock waves across the recyclables and waste management market with wealthy industrialized countries rushing to find alternative locations to dispose of their growing waste.

    John K. Powell

    John K. Powell is an attorney and professional engineer with more than 20 years of experience in environmental regulatory compliance and sustainability matters for public, private, and industrial clients. He is the director of the City of Tallahassee’s Environmental Services and Facilities Department, chair-elect of the Florida Bar Animal Law Section, and an adjunct instructor at the FAMU-FSU College of Engineering. He may be reached at John.Powell@TalGov.com.