|Environmental Laws governing Petroleum and Other Related
Operations in Nigeria Offshore from Mobilisation to Decommissioning of such Operations (including Seismic and Fishing Activities)
in the areas of
Waste and Hazardous Materials
Toxic Chemicals including Carriage and Disposal.
The nature of operations in the petroleum industry is such that one of the direct consequences of Petroleum activities is usually the generation of waste and hazardous materials. These products together with toxic chemicals are not only used in the Petroleum Industry but are also transported from point to point. The interplay of these products with our environment must be regulated in order to prevent avoidable calamities on the human population. Nigerian laws have evolved through regulation and guidelines to protect and/or restore the environment to as near perfect as possible if damage does occur from the Petroleum Industry or related activities.
The philosophy behind the Nigerian Laws in the Petroleum Industry is that the licencee/Lessee or Operator is expected to be responsible for hazardous materials,wastes and toxic chemicals from cradle to grave.
In recognition of the above the Department of Petroleum Resources1 has divided the Petroleum Industry into six stages and laid down rules to be complied with in dealing with these materials.
The stages are as hereunder:
Each of these six stages produces and generates wastes, hazardous materials and toxic chemicals, which are normally transported, treated and disposed of. We will now identify the relevant Nigerian statutes, guidelines and treaties governing this area.
The Minister of Petroleum Resources is empowered to make regulations for the prevention of pollution of water courses and the atmosphere.2All licensees or leesees are expected to adopt all practicable precautions including the provision of up to date equipment approved by the DPR to prevent pollution in Nigerian waters.3The Licensees or Lessees are expected to carry out their operations in a proper and workmanlike manner in accordance regulations and practices accepted as by the DPR as good oil field practices.4
Some of the statutes and guidelines are as follows:
Minerals Ordinance of 19145
Oil in Navigable Waters Act6
Petroleum (Drilling and Production) Regulations
Petroleum Refining Regulations
Oil Pipelines Act8
Associated Gas Re-injection Act9
Federal Environmental Protection Agency Act10
Guide lines and Standards for Environmental Pollution Control in Nigeria
National Environmental Protection (Effluent Limitation) Regulations, 1991 –s1.8 of 1991
National Environmental Protection (Pollution Abatement in Industries and
Facilities Generating Wastes) Regulations, 1991 –S.1.15 of 1991
Environmental Impact Assessment Decree11
Harmful Waste (Special Criminal Provisions, Etc) Decree 198813
Sea Fisheries Decree14
Territorial Waters Act15
Oil Terminal Dues Act17
The Department of Petroleum Resources in 1981 issued interim Guidelines concerning the monitoring, handling, treatment and disposal of effluents, oil spills and chemicals, drilling muds and drill cuttings by lessees /oil operators. Tentative allowable limits of waste discharges into fresh water, coastal water, and offshore areas of operations were also established.
The Federal Environmental Protection Agency also issued guidelines as above in 1991.However, these guidelines are mainly for hazardous materials and wastes generated by local industries within the country. However, when wastes are being brought from offshore to land for disposal then the FEPA Guidelines should be applicable to the treatment, storage and disposal (t s d) of hazardous materials within the shores of the country. Additionally the FEPA Act shows that the jurisdiction of FEPA extends to the territorial waters18 of Nigeria so the distinguishing where the waste is generated, on or offshore may be a distinction without a difference, in other words an exercise in futility.
For a thorough understanding of the subject area it is essential to have a look at the definitions of key words in the Nigerian Petroleum Industry. Offshore Water is defined as waters situated between 5km – 50 km from the shoreline19.
Hazardous substances20 include but are not limited to any element, compound, mixture, solution which because of its quantity /concentration, or physical /chemical or infectious characteristics, may:
cause or significantly contribute to an increase in mortality , or incapacitating, reversible illness, or;
pose substantial hazards to human health or the environment when improperly treated , stored , transported , or disposed of, or otherwise managed;
exhibit the following characteristics/ criteria :
Ignitability – a liquid and/or liquid waste other than an aqueous solution containing less than 24% alcohol, that has a flash point less than 60oC;a waste, not a liquid, which is capable under standard temperature and pressure of causing fire through friction, absorption of moisture, or spontaneous charge and, when ignited, burns so vigorously and persistently as to create a hazard; an oxidiser, an ignitable compressed gas
Corrosivity – is aqueous and has a pH of 2.0 or less or 12.0 or more, a liquid that corrodes steel at a rate greater than 5.0 mm per year.
Reactivity – forms toxic gases, vapour, fumes, or explosive mixture with water and when exposed to pH conditions between 2.0 and 12.5;normally unstable and capable of explosion if subjected to a strong igniting /heat source; an explosive capable of detonation or explosion at standard temperature and pressure.
Toxic – capable through chemical action, of killing , injuring or impairing an organism.
The 1991 FEPA Guidelines21 defines hazardous waste as “by products of society
that can pose a substantial hazard to human health or the environment when
improperly managed, possesses at least of four characteristics (ignitability ,
corrositivity, reactivity,or toxity), or appears on FEPA lists.
The FEPA Decree prohibits22 the ‘discharge in such harmful quantities of any
hazardous substance into the air , or upon land and the waters of Nigeria or at the
joining shorelines (sic) except where such discharge is permitted or authorised
under any law in Nigeria. However, an owner or operator is exempted from strict
liability where the oil spillage was as a result of “natural disaster” or an act of
war or by sabotage.
FEPA is charged with the leadership role for the combined oil spill response
team, pursuant to regulation 19 of the Pollution Abatement Regulation. Every
spill must be reported under FEPA Regulations. All discharges in the normal
operation of an oil company would be analysed and must be reported to the nearest
FEPA office every month through the Discharge Monitoring Report23
The Harmful Waste (Special Criminal Provisions etc) Act renders it an offence to
“carry, deposit, dump or cause to be carried deposited or dumped or be in
possession of any harmful waste on any land or territorial waters or contiguous
zones or exclusive economic zone of Nigeria or its water ways, or to transport or
such without lawful authority”24
Harmful waste25 is defined to include “injurious, poisonous, toxic or noxious
substance, if the waste is in such quantity as to subject any person to the risk
of death, fatal injury or incurable impairment of physical or mental health.”
There are currently about 100426 chemicals on the Exclusive list of Hazardous /
Dangerous Chemicals contained in Part III of the 1991 Guidelines, as chemicals
and substances (including waste) and discarded chemicals which the Agency
has found , based on scientific evidence to be hazardous to public health and
From the above we can safely state that toxic chemicals are hazardous materials
In the context of Nigerian Petroleum jurisprudence.
Categories of Oil Operations
The EGASIN depicts guidelines and standards in order to effectively
monitor the discharges of these substances into the environment. It is sine quan
non that the Petroleum Industry can not function without the use of these
substances. The law steps in to regulate the way they are discharged into
Stage 1 - Exploration and Development Operations
Legal Authority – Petroleum Act 1969 with the Petroleum (Drilling and
Production) Regulation 1969, section 25 and 36.Also the Explosive Act 1964 and
Explosive Regulation 1967 governs the use of explosives during seismic activities.
Exploration and Development Operations generate wastes that include:
Drill cuttings - documentation on spent cuttings required
Drilling fluids (mud) – analysed by DPR to determine level of toxicity
Deck drainage -
Well treatment fluids,
Sanitary and domestic wastes
Accidental oil spills.
Treatment and Control of Waste
Wastes from drilling and workover activities from offshore, near shore and inland
areas, spent water –based mud/fluids, well treatment wastes, oil and water based
drill cuttings, brine, deck drainages or residues – shall be treated to the satisfaction
of the Director of the Department .
Seismic Activities – For offshore operations non –explosives shall always be used
where possible instead of explosives. Provisions are however made in Table II –327
and Table II – 4 for safe distances to protect buried pipelines and exposed sub
marine pipelines subjected to vibration from seismic activities.
Drilling Fluids- Use of diesel Oil for lubricity and spotting is prohibited. Treatment
of oil based mud is different from water based.
Drill Cuttings –
On-site disposal with an oil content that doesn’t cause sheen on the water.
Washing so that it would not cause sheen on the water.
Transportation to Land from offshore for disposal
Injection into properly prepared or approved formation.
Deck Drainage – treated separately for oil removal or by gravity separation or
is handled by the produced water treatment system before discharge.
Sanitary Wastes – biological waste water treatment with residual chlorine of 0 .8
to 2.0 mg/l. if manned continuously by ten (10) or more persons. If less than 10
persons it may be macerated and dumped overboard with no floating solids.
Oil spillage –provided under the contingency plan for oil spill control and
Prevention.28The Minister of Petroleum Resources29 is empowered to make
regulations for the prevention of pollution of water courses and the atmosphere.
Other Regulations are 25 and 36 of the Petroleum (Drilling and Production)
Regulations 1969,Regulation 43 (3) of the Petroleum Refining Regulations
1974 and Regulations 17(3) of the Oil Pipelines Ordinance 145 as amended by
the Oil Pipeline’s Act 1965.
There are also International Conventions that were ratified by Nigeria. These
include the International Convention for the Prevention of Pollution of the Sea
by Oil 1954 as amended in 1962 which was implemented by the Oil in Navigable Waters Act 1968, and the Convention on the Continental Shelf and High Seas(Geneva 1958).
Control of Points of Discharge30
Discharges are permitted in offshore (discharge zones) areas 12 nautical miles away from the shoreline and of the depth not less than 200feet provided the limitations as specified in Article 3.5.6 1 are satisfied. Article 220.127.116.11 is very explicit on the discharge limitations.
Visual Sheen Test and Discharge Limitations
Cuttings contaminated with water based mud may be discharged offshore/deep waters without treatment, provided the discharge does not contain free oil as determined by the visual sheen test on the receiving water. The visual sheen test must have commenced 15 minutes before observation and can only be conducted during clear weather conditions. With regard to cuttings contaminated with oil the regulations lays down strict parameters for the percentage of residual oil content before they may discharged in offshore discharge zones.
Drill cuttings from use of oil and water based mud which satisfy the limitation as in article 18.104.22.168 (i) may be dumped or discharged deep offshore provided all the conditions stipulated are met.31 Toxicity tests must be conducted on all muds.32
These are sludge, cake, and unsolidified cuttings from water-based mud. They must be disposed of on land after treatment by methods that shall not endanger human life and living organisms and cause significant pollution to ground and surface waters. Some of the approved methods are land farming33, backfilling34 and landfilling35.
Disposal of Cuttings from Oil based mud
The preferred option for the disposal of cuttings and sludge from oil-based mud is by injection and incineration. However, land farming, landfilling and backfilling when adopted must meet the requirements enumerated above.36 However, other treatment technologies approved by the Department of Petroleum Resources may also be used. The DPR enjoins operators to use best practicable technology currently available as approved for incineration. The ash produced may be landfarmed or backfillied in accordance with regulations.
The DPR has issued guidelines for preparing first level Contingency Planning for the
Petroleum Industry. The object of Environmental Sensitivity Index (ESI) Mapping is the identification and mapping of the areas sensitive to oil pollution, relative to operational areas. Offshore operational areas shall be the outer coastline defined as having a greater than 10% chance of oiling in the event of an oil spill from the specific offshore OML block, based on the results of oil spill simulations. The operational areas to be mapped for offshore operations shall also include the coast belt region and all the river mouths up to 10 km landward of the outer coastline.
For offshore waters, clean up methods shall be by containment and mechanical recovery. However, dispersing /sinking /gelling agents may be employed by the
operator only after approval has been sought and obtained from the Director of
Disposal Plan for Oil and Debris
Reuse is the first option. Otherwise the Director, Petroleum Resources, must first approve any of the following options:
Resource recovery system where feasible
Sanitary Land Filling
Use of Oil Spill Chemicals
All Oil Spill Chemicals intended for use within Nigeria or its territorial waters shall be certified by the Director, Petroleum Resources. The chemicals shall be subject to effectiveness, toxicity and biodegradability tests under Nigerian conditions.
An operator responsible for a spill shall be required to conduct an Environmental Evaluation (Post Impact) Study
Hazardous Waste Management
The Petroleum Regulations state that non-hazardous and /or hazardous wastes from
oil and gas exploration, exploitation, refining and other associated activities shall
be handled in accordance with up –to- date instructions and with practices in
accordance with good –oil-field and international standards.
Every Operator/ Licencee / Lessee shall supply to the Director of Petroleum Resources all information necessary to identify hazardous materials and wastes. Generally the information are as follows but may be expanded:
Material Safety Data Sheet39
Waste Material Data Sheet40
Chemical Test/Analyses on the Characteristics as defined by DPR for hazardous substances /wastes41
Risk Assessment (hazard identification, assessment and risk estimation/evaluation) .
The generation of hazardous waste shall be notified to the DPR in writing within
one month of its generation. The wastes must be properly stored, treated on –site
or delivered to and received at permitted or licenced premises for treatment and
All transporters of waste must register with the DPR. The transporting medium must
conform with the specifications described in the labelling by the manufacturer. Where
there is discharge of hazardous material or waste during shipment , the generator
and transporter must take immediate action to:
Protect human health and the environment
Inform the DPR within 24 hours
Activate the Hazardous Spill Control Plan
The generator and transporter are responsible for cleaning up any discharge.
Storage , Treatment and Disposal
Hazardous Materials are stored, treated and disposed of on site in special facilities approved by the DPR before hand through the issuance of a permit.43The medium of storage must satisfy DPR specifications44
Treatment and Disposal of Waste45
An application must be made to the DPR with all the relevant information. The treatment /disposal method shall be the best practicable technology currently available and approved by the DPR. Some of the methods are:
Deep Well Injection
Operators of on –site treatment and disposal plants must have closure and post closure plans approved by the DPR. Hazardous waste generators are responsible for the
management of their waste from cradle to grave. If the waste is to be treated
and disposed off-site then National standards will apply(mainly the FEPA
The licencee/operator must provide a detection monitoring system for the purpose
of discovering ground water contamination.
Waste Release Inventory
All operators must submit this inventory at the end of the year annually to the DPR
for releases of on-site(point source) effluent discharges.
TOXICITY TESTS FOR CHEMICALS46
Operators shall be required to undertake toxicity tests of all low toxic base oil, oil based mud system, drilling fluid, chemical dispersants or any other chemical on standard aquatic organisms under the Nigerian Environmental conditions. The Operators are expected to use laboratory facilities approved by the DPR to conduct toxicity tests. The procedure for the determination of the acute toxicity of chemicals under Nigerian environmental conditions are as follows :
Objective: The objective is to determine the 96 hour median lethal concentration(96 hour LC50 and median lethal times(LT50) of Chemicals to standard aquatic organisms. The toxicity tests will cover acute toxicity determinations using semi- static agitation test procedure. The test results should be submitted to the Director, Petroleum Resources for evaluation and subsequent selection and approval of the chemicals for use in Nigeria in accordance with the application sought.
Test Material: A sufficient quantity of test materials will be supplied by the chemical supplier and /or Operator (sponsor). Adequate physio –chemical specification , as well as priority hazardous constituents (e.g cadmium, mercury and percent aromatic contents) shall be provided by the chemical supplier and/or operator(sponsor).Special reference to hazardous properties, storage conditions and material safety date sheet (MSDS) shall also be provided by the sponsor.Where physico- chemical and priority hazardous constituents are not provided by the supplier they shall become part of the test to be conducted by the approved Nigerian laboratories.
Organism selection : The species recommended for the toxicity tests shall
be as follows:
Freshwater – Desmocaris
Brackish Water – Palaemonetes africanus
Collection and Transportation: The species shall be aerated immediately they are collected. Plastic bash bags should be used in collection and transportation.
Acclimitization: The stock population is to be held in laboratory conditions for a minimum of ten (10) days and fed on 3% of bulk weight daily on a diet of which should be stated in the report results.
Furthermore rules are laid down for the following other criteria:
Test Apparatus, Identification of Test System, Dilution Water, Lightening,
Test Temperature, Type of Tests and Test Concentrations, Preparation of Test Solution, Media Parameters Monitoring, Procedure, Moult deaths, Data Analysis, and Records.
STAGE 2 - PRODUCTION OPERATIONS
Legal Authority - s.25 and 36 of the Petroleum (Drilling and Production) Regulations 1969.In a nutshell, a licensee or lessee is obligated to adopt all practicable precautions including the provision of up- to-date equipment approved by the Director of Petroleum Resources and the execution of all his operations in a proper workmanlike manner in accordance with good oil-field practices.
Various chemicals are used at this stage and some are hazardous and may end up being discharged as wastes. Wastes and hazardous material from production operations shall be treated to the satisfaction of the Director of Petroleum Resources before any disposal. Encapsulation in abandoned well bores and injection into depleted reservoirs on a case-by-case basis(as appropriate) shall be the preferred option. Effluents are prohibited from being discharged into offshore waters except permitted by the Director.
Treatment and Disposal of Hazardous Materials, Waste and Toxic Chemicals from Production Operations
It must be treated to the satisfaction of the DPR before disposal. The levels of pollution control are expected to be fully in line with the Best Practicable Control Technology Currently Available (BPT). Which represents the best existing performances of well-known technologies for the control of these specific pollutants.
Some of which are oily sludge, produced sand, domestic wastes, empty metals/plastic containers are controlled by the use of techniques like incineration, sanitary landfilling, land farming encapsulation, solidification, slurrification and injection, chemical treatment, recycling inter alia.
Chemical /Hazardous Wastes/LSA or Norm
Encapsulation in abandoned well bores or injection into the depleted reservoirs on a case -by - case basis ( as appropriate ) shall be the preferred options.
Treatment and Disposal of Wastes from Production Operations
Wastes from production operations shall be treated to the satisfaction of the Director of Petroleum Resources before any disposal.
Produced Formation/Oily waters - may be discharged into offshore discharge zones and deep water areas provided the following conditions are satisfied:
The oil is separated from the produced /oily water.
As a minimum the concentration of the dispersed oil in water to be discharged, shall not exceed 40mg/l(monthly average , otherwise the produced formation /oily water shall be re-injected.
An Oily water treatment system, designed to maintain the treatment efficiency during load variations and to operate with minimum chemical addition, shall be installed.
Disposal of Produced Sand and Oily Sludges - The methods of disposal must not endanger human life, living organism or cause pollution to ground and surface waters. Approved methods are recycling (resource recovery), incineration, solidification, land farming and landfilling. Any other method(s) acceptable to the Director of Petroleum Resources can be used after an approval has been sought for and given.
Disposal of Produced well Sands, which include well solids containing LSA/NORM.47, domestic and sanitary wastes48, disposal of contaminated metal/plastic chemical containers49
The quality of the produced formation/oily waters from offshore production shall satisfy an oil and grease content of less than 40mg/l monthly average before disposal /discharge into offshore water bodies.
Monitoring of Wastes
Explicitly provided for in Table III - 250 and the recipient water bodies of all facilities that discharge produced formation/oily water offshore and oily waste (Inland/near shore) shall be monitored (sampling and analysis) once every month for the parameters 51.Low Specific Activity (LSA) or Naturally Occurring Radio – active Material (NORM) shall be monitored in production tubing, vessels, pumps, valves, Sulphate and Carbonate Scales, Sands and Sludges.
See Egaspin for the disposal of wastes and monitoring requirements52
Petroleum Decree No.51 1969 (b)
Petroleum (Drilling and Production) Regulations 1969
Oil in Navigable Waters Regulations 1968
Oil Pipelines Ordinance (cap 145 of 1956) as amended by the Oil Pipelines Act 1965
Description of Operations
Storage / Pumping:
The main loading pumps are driven by diesel /gas combustion engines (booster pumps) with connecting pipeline networks on land, swamp and offshore. The offshore pipeline network usually terminates at a platform (BOP).
Produced formation water is removed from the crude oil.
Chalets and recreational facilities produce domestic waste and management problems.
Sources and Characteristics of Wastes
Oil spills e.g. leakages from pipe/hose burst, malfunctioning/faulty equipment, corrosion, and maintenance operations
Discharges from treatment facilities of oily brine formation water
Storm water runoff
Discharges from transporting vessels of ballast, bilge and cleaning waters
Storm Water runoff discharge of refined products from service vessels
These include oily sludges from cleaned – up tanks and heater treaters, spent oil, garbage, grits, dirt, etc
Treatment and Disposal of Wastes from Terminal Operations
Must be treated to the satisfaction of the Director, DPR before disposal similar conditions apply as for Production Operations. Monitoring of recipient water bodies for all facilities that discharge produced formation waters (offshore) shall be monitored. Radio-active substances shall be specified.
Produced Formation Water:
Where appropriate it shall be re injected into disposal wells (sub –surface stratum or strata) approved for the purpose (APPENDIX VIII –C3). Other disposal methods shall be in accordance with the DPR recommended procedures. An Environmental Permit shall be issued, to dispose of such waters.
Disposal of Oily Sludges, Produced Sand and Solid Wastes:
The methods must not endanger human life, living organisms. Some of the approved methods are recycling (resource recovery), incineration, land farming and land fill. Any other method must obtain a prior approval from DPR.
The provisions of Part II, Section E.22.214.171.124 (h) shall be conformed with.
Permitted discharges into offshore waters of produced formation water shall be as described for Production Operations in Part III E, 3.8.3.In other words the quality of produced formation/ oily waters from offshore production operations should satisfy an oil and grease content of less than 40mg/l monthly average before disposal/discharge into offshore water bodies.
If the waters (oily/produced formation waters) are to be re-injected, the conditions in Appendix VIII –C3 would apply.53Operators are expected to obtain approval of the Director, Petroleum Resources for the storage, treatment and sub –surface disposal of oil/field waste generated from oil and gas development operations. Prior to initiating an application for waste re-injection programmes, operators must consult with the Director ,DPR to discuss the proposed project and to review requirements and information to be developed for the technical report of the proposed injection project which shall also be submitted to the Director, Petroleum Resources as an attachment to the Application (Appendix IX –6), by the lessee.
The same conditions apply for produced formation water, oily waste waters, oily sludges/produced sand, sanitary sewages as provided for Production Operations in Part III, Section E.4.1 and Table III –2.
4.HYDROCARBON PROCESS OPERATIONS –
Because most of the processing takes place onshore, this stage is not really applicable to offshore operations.
5.OIL AND GAS TRANSPORTATION
LEGAL AUTHORITY :
Petroleum Regulation 1967
Oil Pipelines Ordinance (CAP 145 0f 1956) as amended by the Oil Pipelines Act 1965
Oil in Navigable Waters Regulations 1968
Sources of Wastes
Pipelines,Barges,Ships,Tankers and FPSO
Treatment and Control of Waste
Pipelines :Oil pollution form pipelines can be controlled by various means before and during operations by the following
Hazard assessments must be carried out prior o the laying of pipes
Materials are carefully inspected for manufacturing defects
All welded joints receive careful inspection and testing either by visual, x –ray or ultra sonic methods,
Hydrostatic test at pressure above normal working pressures are used to detect wall cracks, thin holes, or other defects that might cause leakages,
Protection against external and internal corrosion is provided by coating with such materials as asphaltic mixtures, coal-tar enamel, epoxy compounds or cathodic protection and addition of corrosion inhibitors to the materials passing through the lines respectively54 etc.
Inspections (visual/ electronic) of long length of the pipeline with helicopters, vehicles, foot and by divers are meant to detect spillages and encroachment on the pipelines that may endanger them
Sensors and shut- off devices are installed for monitoring and controlling of pipeline operations;
Erection of warning signs or boards where pipelines cross navigable water ways
Oily water and spills around the pump station are routed into the oily water separator for treatment. The recovered oil is either returned to the system or incinerated as oily waste, while the water is drained and dumped as effluent water.
Barges, Ships and Tankers
Oil contaminated water can originate from ballast water, tank cleaning, water bilge and produced formation water. Pollution from these sources are controlled through:
For the offshore line system, great care must be exercised during loading when ships valves are manipulated, to avoid pressure surges. Pressure recorders are to be fitted at the spool piece between ship manifold and tail end of the hose string to monitor pressure changes generated on board the vessel.
Whilst berthed at the SBM, a secondary watch must be kept on the fore castle head by member(s) of the crew throughout the hours of darkness to raise the alarm and advice the berthing master on the approach of local small crafts. The berthing master should also be advised in the event that the vessel rides up to the SBM.55
All pipelines and flowlines for crude and petroleum products including gas shall be patrolled and inspected once every month or otherwise as approved by the Director of Petroleum Resources.
Control of Existing Effluent Point Sources at Pump stations
All point sources of existing effluent discharges must be registered with the Director,PR and the appropriate permit issued.
Ocean Ballast Water
It is mandatory for Operators, Ship owners, Charters and Ship Agents to ensure that samples of clean ballast and treated bilge water to be disposed of meet effluent limitations for ocean ballast before discharge.
Legal Authority : Mineral Oil Act 1962, Mineral Safety Regulations 1997 , Petroleum Regulations 1967 and Oil in Navigable Waters Regulation, 1968.
Control of Points of Discharge
It is prohibited to discharge wastes into offshore waters. However, exemption to dispose of or discharge waste materials may be granted on the condition that scientific investigation support beyond all reasonable doubts the fact that the quality and quantity of discharge shall not cause hazards to human health, harm living organism (fauna and flora) or impair the quality to use adjacent land and water.
FEPA Guidelines on Treatment, Storage and Disposal (TSD) of Hazardous Wastes
The Effluent Limitation Regulation requires every industry to install anti-pollution equipment based on the Best Available Technology (BAT), the Best Practicable Technology (BPT) or the Uniform Effluent Standards (UES) for the detoxification of effluent and chemical discharges emanating fro the industry.
The National Environmental Protection (Management of Solid and Hazardous Wastes) Regulation 1991 has set out criteria to be used to designate wastes as either
Dangerous i.e . hazardous waste , or DW ; or extremely hazardous waste EHW.
The Pollution Abatement in Industries and Facilities Generation Wastes Regulations, 1991 prohibits on – or – off site treatment, storage or disposal (TSD) of hazardous wastes in Nigeria, except under a permit issued by FEPA. In order to obtain a permit the waste generator or facility operator must prove to the satisfaction of the Agency that he has the resources to meet the detailed requirements and standard specification for waste treatment , storage and disposal .
Specific guidelines are laid down for the packaging of the waste for transportation. The package has to be ascribed a Manifest Document Number and labelled as prescribed by FEPA.
Schedule of Implementation, Permits Enforcement Powers and Sanctions
Permits are issued by the DPR for all aspects of Oil related effluent discharges from point sources(gaseous, liquid and solid) and oil related project development. No operator therefore shall be permitted to discharge any effluent without permit.
Environmental permits are issued for existing and new sources of effluent discharge.
Enforcement Powers and Sanctions
All avoidable spillages, when they occur, shall attract a royalty not less than N500 000
to be to be deducted at source and additional fine of N100,000 per day for as long as the violation persists. The spiller (operator or owner of vessel ) is expected to pay adequate compensation to those affected and restore the /remediate the polluted environment to an acceptable level as shall be directed by the Director of Petroleum Resources.58
When the effluent quality of discharges is exceeded by twenty (20) percent of the allowed daily/ monthly average concentration per parameter, a fine of N5, 000.00(five thousand) for every 50m3 of water discharged will be imposed. In addition, upon conviction, an imprisonment for a term not exceeding 2 years shall apply for the first offender.59
The most serious sanction is for persistent violators, which would be revocation of the lease, licence and/or permit.
The Territorial Waters of Nigeria extend to 30 Nautical Miles off the coast of Nigeria.60Hazardous methods of fishing are prohibited within the Nigerian territorial waters either by use of any explosive substance, noxious or poisonous matter.61The
Minister is also empowered to make regulations generally for enhancing the interests of
Sea Fishing Industry including regulating, prohibiting or restricting the taking of fish in
any specific area within the territorial waters of Nigeria.62
Common Law Torts
It is indisputable that the principles of Common law form part of our laws. The area of difficulty is where there is a Public Nuisance in tort. The Attorney General been the person to sue Ex-Offcio or Ex Relatione does not usually take up Environmental matters in Nigeria. Hence most matters are defeated in court on this technicality for lack of standing63.It is usually a herculean task to prove that one has suffered a peculiar damage over that suffered by members of the public. Fundamental pitfalls of private nuisance are the twin requirements of causation and reasonable use of the defendant’s premises. The requirement of reasonableness, seeks to strike a balance between the competing rights of the plaintiff and the defendant in the decision on whether the defendant reasonably used his property or not. In cases of oil pollution, the court considers reasonable use of property by a defendant, against a backdrop of the purpose or social utility of the defendant’s conduct. The suitability of the locality, the impracticality of preventing the interference, the extent of the harm done to the plaintiff’s property, and the social value of the use interfered with are also relevant considerations in the resolution of the issue of reasonable use property. A plaintiff must therefore prove unreasonable use of land in order to succeed against such a defendant for damages. The issue of reasonableness however, does not apply to the public nuisance. In comparison in the United States the proximity rule is used and simply requires the plaintiff to prove his closeness to the source of pollution. There is no reference to the AG under the proximity rule.
However, another school of thought backed by judicial decisions is that the proper remedy to seek in the circumstances would be compensation and not damages.64.This position is supported by the DPR wherein it states ‘ settlement for damages and compensation shall be determined by direct negotiation between the operators and the landlord(s)’65. Damages here not in the legal sense but in the layman’s understanding of damage done. Further the DPR instructs that where direct settlement between the operator(s) and landlord(s) fails, other methods of settlement shall apply which includes arbitration and adjuducation. The Compensation Tribunal is specifically empowered to determine the quantum of compensation payable.
The point to note here is that there is no laid down mode of appointing the Arbitrators or mode of beginning the arbitration proceedings. This is anomalous as in an agreement for instance wherein there is an arbitration clause it usually lays down how the parties can elect to go to arbitration. In addition Egaspin does not make it clear if arbitration is a condition precedent or whether the parties have the right to go straight to court. An example of the confusion that can arise is seen in the recent Supreme Court decision of Owners of M.V.Lupex Vs N.O.C.S Ltd66 where it was decided that the court had the discretion to stay proceedings because of the on going arbitration. This is the position in the Nigerian Arbitration Act.67We strongly feel that Egaspin should follow this position.
The Nigerian Supreme Court has affirmed liability under RylandsV.Fletcher.68However, it is limited to damage to property. Furthermore several exceptions to it have greatly diminished the application of the rule. Negligence is the least attractive of torts because of requirements of causation and foreseeability.
Under the FEPA Act 69except where an owner or operator can prove that a discharge was caused solely by a 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 hazard is discharged in violation of section 20 of this decree, shall in addition to the penalty specified in that section be liable for-
cost of removal thereof including any costs which may be incurred by any government body or agency in the restoration or replacement of natural resources damaged or destroyed as a result of the discharge; 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 owner or operator of the vessel or onshore or offshore facility from which there is a discharge in violation of section 20 of this decree shall to the fullest extent possible act to mitigate the damage by-
-giving immediate notice of the discharge to the Agency and other relevant agencies;
-beginning immediate clean-up operations following the best available clean –up practice and removal methods as may be prescribed by regulations made under section 22 and promptly complying with such other directions as the Agency may from time to time , prescribe.
One of the biggest issue we have observed is that an operator is not absolved of responsibility from meeting up to the other provisions and statutes in the country by merely complying with the EGASPIN . The problem that could arise is where the statutes over lap .
Treaties and International understandings
The London Guidelines for the Exchange of Information on Chemicals in International Trade (Amended) 1989 was drawn up by UNEP to guide the regulation of international trade in hazardous chemicals .The objective is to assist governments in the process of increasing chemical safety within their territorial environment and other environment beyond their territorial jurisdiction. The Guidelines amongst other things provide a mechanism for the exchange of information on chemicals in international trade; co-operation between exporting and importing countries in the light of their responsibility for the protection of human health and environment at the global level; consultation with importing countries on the banned or severely restricted chemicals; mechanisms for importing countries to formally record, disseminate and up-date decisions regarding future importation of chemicals which have been banned and severely restricted; technical and financial assistance to enhance decision- making and training in the safe use of chemicals ; and establishment of procedures for the effective use of information on chemicals in the developing countries. In order to implement these objectives and principles, the London Guidelines set up three distinct structural processes:
Notification of Control Action
Information Regarding Exports ;and
Prior-informed –Consent (PIC) Procedure
Nigeria adheres to the principles of these guidelines.
1991 Bamako Convention on the Ban of the import into Africa and Control of Transboundary Movement of Hazardous Wastes within Africa- this agreement has the potential to encourage increased traffic in hazardous waste by African countries .
Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal
This Convention prohibits transboundary movement of hazardous wastes between State Parties and Non Parties. State parties that have banned the import of hazardous waste in their territories shall inform other parties to the Convention. If the State of import has not prohibited the import of such wastes , Parties shall not permit the export of hazardous wastes if such State of import does not consent in writing to the specific import. This convention ensures that hazardous wastes are handled, disposed of, managed in an environmentally sound manner by all the State parties involved in the generation, movement or disposal of hazardous wastes. Disputes are settled by negotiation or any other peaceful means of the parties’ choice. If the dispute cannot be settled through this means then if they agree between themselves it would be taken to the International Court of Justice. If the parties can not decide between themselves to take the matter to the International Court of Justice or Arbitration then they remain under the obligation to settle the matter by peaceful means. Nigeria has ratified this convention.
Nigeria is a party to many Environmental Treaties but is constrained by the fact that most of them have not been ratified hence they can not be judicially enforced.
List of Ratified Treaties
Up stream operators are usually willing to implement and /or co-operate with the DPR in its regulatory efforts in the Petroleum Industry. However, the main constraints are :
Improper perception of the content and implementation of the Guidelines and Standards
Cost and Budgetary Constraints
Some of the provisions of the Guidelines and Standards are too stringent and cannot be subjected to cost/benefit analysis, where the ratio should be seen as skewing towards benefit.For the operators this is bad business. Again the joint venture arrangement with the Federal Government of Nigeria, where budgets for relevant environmental management programmes are either slashed or not approved. Even when they are approved, the cash call takes its toll.
The Operators must be made to implement the use of the Best Practicable Technology Currently Available. Usually vendors are invited without first studying the problem/ situation which would enable them find out the state – of –art technology and most cost –effective method of control.
The issue of Notification or Registration of Chemicals/hazardous substances currently in use in the industry is often not strictly complied with. Neither is the discharge monitoring requirements for produced formation water satisfactory. Likewise the biological effects of monitoring of appropriate recipient waters needs to be properly followed.
There is a big problem regarding preventive maintenance of pipeline systems .Very often these systems that have exceeded their design useful life are not replaced on time. This usually causes leakages and unlawful discharges.
The numerous defences available to a defendant an in oil spill case should be greatly reduced and liability for discharge of oil into waters should be made strict.
A Liability Trust Fund should be established by the Government in concert with Oil Companies. Each Oil company should be made to contribute a certain percentage of its income to the fund. The fund should be used in cleaning – up the impacted environment where the responsible party is unable to pay compensation to victims of oil pollution.
A timely and co-ordinated oil spill response mechanism is needed which would produce more rapid clean –up action.
Attempts should be made to develop a realistic compensation package for pollution victims.
TABLE OF CONTENTS
Nigeria Statutes 3
Categories of Oil Operations 8
-Stage 1 –Exploration and Development
Oil Spillage 11
Chemical and Hazardous Waste 13
Stage 2 -Production Operations 16
Stage 3 - Terminal Operations 19
Stage 4 - Hydro Carbon Processing 21
Stage 5 - Oil and Gas Transportation 22
Stage 6 - Marketing Operations 24
FEPA Guidelines on Treatment, Storage and
Disposal (TSD) of Hazardous Wastes 25
Schedule of Implementation,
Permits Enforcement Powers and Sanctions 26
Fishing Rights 27
Common Law :Torts 29
Treaties and International Understandings 31