In Nigeria, public concern over the degradation of our natural environment over the years has changed the traditional government approach to environmental law. Prior to 1988 when five ships were discovered loaded with toxic wastes of Italian origin in the small port town of Koko in Southern Nigeria, little public emphasis was placed on environmental protection and conservation.
The Koko incident became the first major catalyst which spurred the government into action and the nation into greater environmental awareness. The Federal Environmental Protection Agency was created by Decree No. 58 of 1988 and in January 1992 the Agency's authority was significantly strengthened through Decree No.59 of 1992 when the Federal Government incorporated FEPA into the Presidency and expanded its mandate to include bio-diversity conservation and sustainable development of Nigeria's natural resources.
The oil and gas industry can rightly argue that they have been concerned with environmental laws and regulations for over two decades. This is not surprising after all, the oil and gas industry is a complex combination of interdependent operations comprising exploration and production operations, processing of crude oil into consumer products, transportation and marketing activities and more recently gas extraction.
At each stage of these operations, gaseous, liquid and solid waste materials are produced and discharged. These can, if not properly discharged and controlled, adversely affect the nation's air, water, and soil. For this reason a wide range of laws and regulations to control pollution in the oil and gas industry have been promulgated.
One commentator remarked that:
"Amusingly the environmental turf in Nigeria is like her economy, mono topical. It starts with oil and ends with oil producing companies ".
More recently, the Ogoni saga culminating in the execution of the environmental activist, Ken Saro-Wiwa, has more harshly spotlighted environmental issues in the oil and gas industry. The public is now fully sensitised to the issues of environmental management and protection. The public outcry makes it clear that it expects and indeed demands more commitment to environmental protection from both government and all the operators in the industry. Today almost every debate and article on the environment in Nigeria is centred on oil spills, gas flares and the environmental degradation of oil producing communities.
NIGERIAN TREATY LAW
Nigeria has adopted (by ratification, acceptance, approval or accession) various international treaties on environmental protection in this area (i.e. pollution control) namely:
International Convention for the Prevention of Pollution of the Sea by Oil 1954, as amended in 1962.
International Convention on Civil Liability for Oil Pollution Damage 1969, (Civil Liability Convention).
International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage 1971, (Fund Convention).
International Convention on the Prevention of Marine Pollution by the Dumping of Wastes and Other Matters 1972, (London Convention).
Convention on Co-operation in the Protection and Development of the Marine and Coastal Environment of the West and Central Africa Region 1981.
Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal 1989.
International Convention on Oil Pollution Preparedness, Response and Co-operation 1990.
These international agreements regulate different aspects of oil pollution damage by prohibiting certain conduct, imposing liability, setting up compensation schemes, pollution control and establishing reporting and response systems. Some conventions require implementation by the contracting state by enacting domestic legislation or establishing national systems, e.g. the International Convention for the Prevention of Pollution of the Sea by Oil 1954 (as amended in 1962), was implemented in Nigeria by the enactment of the Oil in Navigable Waters Act, 1968. Similarly, the International Convention on Oil Pollution Preparedness, Response and Co-operation requires party states to prepare a National Oil Spill Contingency Plan. The Oil Spill Contingency Plan for Nigeria is scheduled to be launched in 1997.
It is perhaps worth mentioning a significant lacuna in Nigeria treaty law, which is that contrary to popular opinion, we have not yet acceded to the International Convention for the Prevention of Pollution from Ships, 1973, as modified by the Protocol of 1978 relating thereto, better known as MARPOL 73/78. This convention is perhaps the most important international agreement on the subject of marine pollution. It is a common but mistaken belief that Nigeria is a party to this convention, however the International Maritime Organisation ("IMO") in its official magazine IMO News, published a table showing the status as at 1 June 1996 of IMO conventions and on that table it is clearly shown that Nigeria is not a contracting state in respect of MARPOL 73/78. This is an omission that should be addressed by the Nigerian government.
INTERNATIONAL CONVENTION ON OIL POLLUTION PREPAREDNESS, RESPONSE AND COOPERATION, 1990.
In 1978, the Amoco Cadiz spilled 220,000 tonnes of crude oil near to the Brittany coastline and in 1989 the Exxon Valdex spilled 40,000 tonnes into Prince William Sound, Alaska. The IMO as a result of these major and disastrous spills decided to convene "an international convention on oil pollution preparedness and response which would provide the framework for international cooperation for combating major oil pollution incident". The conference convened in London adopted the OPRC convention in 1990.
Of particular relevance to this paper is Article 6 of the Convention which states that:
"Each party shall establish a national system for responding promptly and effectively to oil pollution incidents. This system shall include as a minimum:
- the competent national authority or authorities with responsibility for oil pollution preparedness and response;
- a national contingency plan for preparedness and response which includes the organisational relationship of the various bodies involved, whether public; or
- private, taking into account guidelines developed by the Organisation".
In compliance with this international obligation Nigeria has established a national system for responding promptly and efficiently to oil pollution incidents, otherwise known as the Oil Spill Contingency Plan for Nigeria ("the National Plan"). The plan as prepared by the National Committee for the formulation of the National Oil Spill Contingency Plan is ready to be officially launched.
WHY A NATIONAL OIL SPILL PLAN?
A national oil spill plan is an essential response to the recognition of the inevitability of future spills by a responsible government.
"Figures available in 1972 showed that in the circumstances of that time, one accident involving an oil tanker at sea and resulting in serious pollution damage, occurred once every 'thousand tanker years'. With three thousand tankers at sea at any one time in those days, that meant three major pollution accidents per year.
It has been shown that for approximately each 500 exploratory drilling for oil under the seabed, there is one 'blow-out'.
It has likewise been shown that there is likely to be one blow-out for every 2,000 well years at production platforms."
It may well be that the scientific knowledge and technology of today has reduced the risk of accident but the point is clear, there will always be a risk element.
Nigeria has had its share of major spills with the Texaco Funiwa-5 Oil well blow-out in January 1980 and the Shell Forcados Tank failure of 1980. The upshot is that oil related activities are such that can result in accident, even where there is no negligence. It is therefore imperative that as a nation one is prepared for the worst.
On the other hand the benefits of a National Oil Spill Plan are obvious. The two major advantages of a plan are to provide:
- more effective and efficient response to an Oil Pollution incident, thus reducing ecological and commercial damage and hence subsequent claims; and
- access to international assistance and cooperation in responding to an incident.
DEFINITION AND BACKGROUND
A national oil spill contingency plan is -
"intended to delineate an entire national preparedness and response system, including both public and private resources, for responses to emergencies which could result in the spillage of oil into the marine (sic) environment".
A national plan is designed to respond to disasters. Disasters can occur at any stage of oil and gas operations. Exploration, development and production activities for oil and gas carry the risk of well blow-outs. Terminal operations bear the risk of accidental spills caused by the bursting of major delivery lines, while oil transportation by tankers or barges may result in accidental discharges of crude oil or petroleum products caused by collision, groundings or other marine accidents.
For completeness it should be noted briefly that oil spill risk also attaches to hydrocarbon processing operations and petroleum marketing operations.
The preferred industry approach - and indeed the approach adopted here in Nigeria - is tiered response to oil spill contingency planning. This approach categorises response levels into three basic tiers.
Tier 1 contingency plan covers small local spills at company owned or operated facilities. The Department of Petroleum Resources requires the local operator to develop a response unit and stock appropriate containment equipment to respond to this size of spill 6. A minor spill is defined as "any discharge of oil to inland waters of less than 25 bbls or a discharge to coastal waters of less than 250 bbls".
Tier 2 contingency plan covers medium spills resulting from a company's operations at their own facilities or multi-user facilities. In order to combat this larger spill, operators of oil facilities are required by the DPR to form a co-operative for the purpose of pooling their Tier 1 resources and the use of jointly purchased co-operative equipment.
In compliance with the DPR's directives, a local Cooperative, Clean Nigeria Associates (CNA), was formed in November 1981 by oil producing companies as a non-profit organisation to enhance oil spill containment and clean up capabilities of its members. Alba (Nigeria) Limited is the operator of CNA. The DPR defines medium spills as "discharge of oil to the inland waters of between 25 and 250 bbls or a discharge of oil to coastal waters of between 250 and 2,500bbls".
Tier 3 contingency plan covers major incidents, the scale of which is beyond that of the Tier 2 response. In addition to Tier 1 and Tier 2 resources, access will be needed to a national stockpile or indeed international co-operative resources. Such a large spill though rare may result in considerable pollution damage. The Tier 3 plan will typically form part of a national plan and is subject to government direction. A major spill is defined as "discharge of more than 250 bbls of oil into inland waters or more than 2,500bbls of oil to the coastal waters.
CONTENTS OF A NATIONAL OIL SPILL PLAN
If a National Plan is to achieve its objective of providing a timely and effective response to oil spillages, then it must:
- Create an authority responsible for the implementation of the plan.
- Identify the geographic area covered by the plan and high risk areas for spills generally, including shoreline sensitivity mapping and suchlike.
- Establish reporting systems and alert procedures for oil spills.
- Provide for a rapid assessment of the threat presented by the spill and continuous spill surveillance.
- Make provision for various response options or scenarios to be considered.
- State which clean-up techniques should be used and in what circumstances.
- Establish effective communications procedures and systems.
- Recognise international arrangements and procedures for obtaining international and regional assistance.
- Provide for the restoration of affected areas.
- Ensure that adequate and accurate records are kept of the incident, for the purpose of the preparation of claims.
- Ensure that the public is provided with pertinent information.
- Provide for training and exercises.
- Provide for the plan to be reviewed periodically.
Certain legal consequences result from the establishment of a national plan, particularly in the areas of international co-operation and assistance, the use of foreign experts and settlement of third party claims. These legal issues should be addressed and action taken in response, so as to facilitate the smooth operation of the National Plan. "Preparedness" means being in a state of readiness and if there are legal tripwires or bottle necks, implementation of the Plan may be hindered.
INTERNATIONAL CO-OPERATION AND ASSISTANCE
"Response" to an incident includes not only mechanical equipment but also human personnel. In view of the need for speed as already mentioned, particular consideration must be given to eliminating legal and administrative delays to the entrance into Nigeria of both spill response equipment and technical experts.
Indeed Article 7(3) of the OPRC Convention provides that
"In accordance with applicable international agreements. each Party shall take necessary legal or administrative measures to facilitate:
- the arrival and utilization in and departure from its territory of ships, aircraft and other modes of transport engaged in responding to an oil pollution incident or transporting personnel, cargoes, materials and equipment required to deal with such an incident; and
- the expeditious movement into, through, and out of its territory of personnel, cargoes, materials and equipment.
It is our opinion that these issues of logistics should be addressed now, in the context of the National Plan.
The Immigration Act 1963, cap 171, Section 8 provides that no alien shall accept employment without the consent in writing of the Director of Immigration. This would ordinarily mean that should the Nigerian response authority need to employ the services of a foreign company with special expertise in oil spill combat, then an employee of such a company engaged to assist with an incident would be required to obtain written consent from the Ministry of Internal Affairs before an entry permit can be issued to him by the appropriate diplomatic Nigerian Mission abroad.
However, in the case of personnel of the United Nations Organisation and its agencies and persons specially invited by the Federal Government of Nigeria, Section 9 of the Immigration Act provides that an entry permit shall be issued by the Overseas Nigerian Mission.
It would greatly assist matters if administrative arrangements are made to identify in advance the agencies and private foreign companies whose personnel and services may be required in the event of an oil spill emergency so as to facilitate special arrangements for their entry.
Another problem is posed by section 54 of the Companies and Allied Matters Decree 1990 which forbids a foreign company from carrying on business in Nigeria without first incorporating locally. Again this places legal restrictions on the use of the services of foreign specialist companies who may be engaged to assist e.g. to put out fires resulting from a well blow-out.
It is clear that, propitiously, there are legislative provisions already available permitting exemptions from the rigours of the general legal provisions. There is therefore no need to legislate further. What is required however is efficient utilisation of these existing exemptions.
It is proposed that the National Oil Spill Response body, i.e. the Lead Agency, should establish a comprehensive and exhaustive list of foreign companies, expert bodies and international organisations whose services may be engaged or who may be invited to assist in the event of a disaster.
Such a list should be approved by the Federal Military Government and submitted in advance to the National Council of Ministers for the grant of approval of exemption from incorporation where necessary.
This approved list should also be circulated in advance to all Nigerian Missions abroad, with full briefing as to the procedure to be implemented in the event of an activation of the National Plan. It would perhaps be helpful also to inform the Nigerian Customs authorities of this process so as to permit rapid importation of oil spill clean-up equipment and materials free of duty.
This proposed system of prior qualification, as far as private companies are concerned, can be set up by the Lead Agency inviting such companies to submit the following information:
- name and place of business.
- details of directors and chief executives of the company.
- details of the services and business which the company could provide or undertake.
- particulars of previous experience in the stated field of expertise.
- any other relevant information.
Once accredited, a company will be entered on the approved list.
The list of approved enterprises and organisations would also:
- serve the purpose of informing the Lead Agency of the range of technical help available and providing a database of experts thus enhancing our response capability.
- Provide a large measure of comfort to international oil spill combat companies who may otherwise be apprehensive about the effect of non-compliance with required statutory procedures and preconditions.
- Cut down the negotiation and mobilisation timespan in crisis situations where time is necessarily of the essence.
There are two categories of claims which might arise as a result of oil spills;
- Claims for clean-up costs which are payable to Government or other authorities which have incurred such costs for preventing or minimizing pollution damage, and
- Claims made by private bodies or individuals who have suffered damage.
Under International law, when a spill occurs claims for clean-up costs and damage is governed by two conventions adopted under the auspices of the IMO - the International Convention on Civil liability for Oil Pollution Damage 1969 (Civil Liability Convention) and the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage 1971 (Fund Convention).
The Civil Liability Convention deals with the liability of shipowners for oil pollution damage. The Convention imposes strict liability, so that liability attaches regardless of whether or not the tanker owner was at fault. However the shipowner will normally be entitled to limit his liability to a specific amount.
The Fund Convention is supplemental to the Civil Liability Convention and creates a system of additional compensation. The IOPC Fund provides compensation for oil pollution damage to victims in member states who cannot obtain full compensation from the shipowner under the Civil Liability Convention. Compensation is paid both for clean-up costs and for third party damage. Nigeria has ratified both conventions.
An IMO diplomatic conference held in November 1992 adapted two protocols to amend the 1969 Civil Liability Convention and the 1971 Fund Convention. These Protocols provide higher levels of compensation and a wider scope of application than the original Conventions. Nigeria has not yet acceded to both Protocols and it is hoped that in view of the obvious advantages offered government will consider accession to the 1992 Protocols.
POLLUTER PAYS PRINCIPLE
An essential component of a National Contingency Plan is a system for the maintenance of accurate records on clean-up operations, damage to property and economic losses resulting from an incident. These records will greatly assist in the processing of claims and reduce delay.
The "Polluter pays Principle" is an accepted principle in international law and it implies the general consensus that it is for the polluter to meet the cost of pollution control, prevention measures and compensation for damage done. This principle was enshrined in domestic legislation by section 21 of the Federal Environmental Protection Agency Act 1988 which provides that:
- "Except where an owner or operator can prove that a discharge was caused solely by natural disaster or an act of war or by sabotage, such owner or operator of any vessel or onshore or offshore facility from which the hazardous substance is discharged shall be liable for - the cost of removal thereof; and
- costs of third parties in the form of reparation, restoration, restitution or compensation as may be determined by the Agency from time to time".
THE COMPENSATION TRIBUNAL
In the event of a major oil spill incident, the ordinary courts, which are already over burdened, will be ill equipped to cope with claims arising from such an event.
In any case the Nigerian court system is slow and such compensation claims can probably be more quickly and ably resolved by a panel of experts on the subject.
It is therefore proposed that such claims be determined by an arbitral body. References to the establishment of Compensation Tribunal in the Department of Petroleum Resources Environmental Guidelines are noted and welcome . The composition of the Tribunal members should include a judicial officer, technical experts and representatives of the oil producing communities.
The contribution of international law to the development of environmental protection law is incalculable. The whole of humanity has benefited from the growing awareness of the need to protect the earth for generations to come. When the National Contingency Plan is eventually launched, Nigeria will be able to say at last it has arrived at the forefront of petroleum industry environmental regulation, at the national level. All that remains is for us to join hands with our neighbours in the Gulf of Guinea and West Africa to formulate bi-lateral and multi-lateral agreements to cooperate in responding to oil pollution.
The content of this article is intendd to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
For further information and advice on this topic or any other aspect of environmental law and Petroleum Energy Natural Resource Law, please contact Jumoke Kola-Balogun, partner and head of the Petroleum, Energy and Natural Resources Group.
Jumoke Kola - Balogun Managing Partner Akinjide & Co. Barristers Solicitors & Trade Mark Agents E-MAIL: email@example.com Telephone: 234 -1- 263 5315 Facsimile : 234 -1- 264 5525