Cross-border damage: the PFAS scandal

Lieselot Bisschop

The originally American company Chemours requested and obtained permission in the summer of 2023 to ship PFAS-containing waste from the Chemours factory in Dordrecht to its location in Fayetteville, North Carolina, USA. These transports came to attention through a letter from the United Nations (UN) Special Rapporteur Marcos Orellana, who wants to investigate whether three companies (DuPont, Corteva, and Chemours) and the American and Dutch governments have violated human rights. Lieselot Bisschop, Professor of Public and Private Interests at Erasmus School of Law, explains on NPO Radio 1 how the shipment of waste across borders is regulated.

The waste transport for which permission was sought contains PFAS, specifically the GenX-related substance FRD903. This type of PFAS is considered a very concerning substance due to its environmental and health risks.

Bisschop indicates that the shipment of waste from the Netherlands to the United States is at a crossroads: "What is allowed, what is not allowed, is not always clear. Nevertheless, various international agreements have been made regarding the transport of (hazardous) waste, the interpretation of what is hazardous changes, and the conditions sometimes varying depending on the country or region."

The Netherlands falls under EU legislation when it comes to the transport of waste across borders. Specifically, the European Waste Shipment Regulation implements the UN Basel Convention on the control of transboundary movements of hazardous wastes and their disposal and the OECD Decision on the control of transboundary movements of waste destined for recovery into European legislation. Bisschop explains: "The conditions for waste transports - import and export - depend on the type of waste - hazardous or not - and the country - EU & OECD countries versus other countries - to which the waste is shipped. For hazardous waste, prior permission is required from the authorities in the destination country and the country of origin of the waste before they can be exported from the EU."

In this case, the country from which the waste departs is the Netherlands, and permission was sought from the Inspection for the Environment and Transport. Bisschop continues: "And on the other side of the ocean, permission must be sought from the American EPA, Environmental Protection Agency, and both must examine whether Chemours' request meets the conditions." If all necessary documents are present, then the waste may be transported. In this case, they also check whether the company receiving the waste has the permits to accept this type of waste. Bisschop explains that it does not make a difference in this case that the waste is being shipped within one company.

On 7 November, the EPA announced a review of the earlier permission in response to concerns raised by the state of North Carolina and local authorities and agreed with Chemours to pause the waste transports until December 1.

These transports came to attention a few days ago through a letter from UN Special Rapporteur Marcos Orellana and other colleagues, who want to investigate whether three companies (DuPont, Corteva, and Chemours) and the American and Dutch governments have violated human rights near the Fayetteville facility. In the letter, when it comes to the Netherlands, it is about the transports taking place from Dordrecht but not about PFAS exposure there. Regarding human rights violations, the question raised by the rapporteur is whether the company or the authorities knew or should have known that people were exposed to pollution and whether they did enough to prevent this. Bisschop indicates: "The letter mainly concerns the United States, where pollution has been occurring for a long time, and there is also all kinds of documentation about it. The reference to the Netherlands in the letter itself is very limited."

In the EenVandaag broadcast, a link was also made to the toxic disaster with the Probo Koala. Bisschop mentioned that both are beautiful but painful examples of how waste often seeks the path of least resistance. It highlights the importance of internationally coordinating the regulation of waste transports and hazardous substances to avoid a domino effect. An important difference is that the Probo Koala involved a relatively unknown company - Trafigura - and here, it concerns a company already under scrutiny, given the lawsuits and media coverage in the United States and the Netherlands.

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