Wednesday, September 13, 2017

A BILL

FOR

AN ACT TO AMEND THE NATIONAL OIL SPILL DETECTION AND RESPONSE AGENCY (ESTABLISHMENT, ETC) ACT, 2006 AND FOR RELATED MATTERS 2017 (HB. 964)

Sponsored by Hon. Chidoka Obinna

Provisions of the Principal Act
Provisions of the Bill
Committee’s Recommendation

Amendment of 2006 No. 15.
1. The National Oil Spill Detection and Response Agency (Establishment, Etc.) Act 2006 (in this Act referred to as “the Principal Act”) is hereby amended as set out in this Act.


A Bill For An Act to provide for the establishment of the National Oil Spill Detection and Response Agency, and for related matters.
Redesignation of National Oil Spill Detection and Response Agency.
2. (1) The long title of the National Oil Spill Detection and Response Agency (Establishment, etc) Act 2006 is hereby re-designated as the “National Oil Pollution Management Agency (Establishment, Etc) Act 2006”.

(2)  Accordingly, any reference in the Act to "National Oil Spill Detection and Response Agency" shall be construed as the “National Oil Pollution Management Agency”.

(3) The re-designation of the enactment specified in sub-section (1) of this section shall not affect anything done or purported to be done under the designated enactment.


Establishment of the National Oil Spill Detection and Response Agency.
1. (1) There is established an Agency to be known as the National Oil Spill Detection and Response Agency (in this Act referred to as the "Agency") with responsibility for preparedness, detection and response to all oil spillages in Nigeria as set out in section 5 of this Act.

Amendment of section 1.
3. Section 1 of the Principal Act is amended in subsection (l) by subsisting for the existing subsection (1) a new subsection as follows:

“(1) There is established an Agency to be known as the National Oil Spill Detection and Response Agency (in this Act referred to as “the Agency”) with responsibility for preparedness, detection and response to all oil spillages, oily wastes and gas flare in Nigeria as set am in section 5 of this Act”.


Establishment of the Governing Board of the Agency.
2. (2) The Governing Board shall consist of-
           
(b) one representative each of the following Federal Ministries not below the rank of Director-

(i) Environment;

(ii) Defence;

(iii) Petroleum Resources;

(iv) Transport;

(v) Aviation (Department of Meteorology);

(vi) Communications;

(vii) National Emergency Management Agency (NEMA);

(viii) Works;

(ix) Information and National Orientation;

(x) Housing and Urban Development;

(xi) the Nigerian Police;

(xii) Oil Products Trade Section of Lagos Chamber of Commerce (OPTS);

(xiii) Agriculture and Rural Development;

(xiv) Water Resources; and

(xv) Institute of Oceanography and Marine Research.


Amendment of section 2.
4. Section 2 of the Principal Act is amended in subsection (2) (b) by substituting for the existing paragraph (b) a new paragraph as follows:

“(b) one representative each of the following Federal Ministries not below the rank of Director:

(i) Environment;

(ii) Petroleum Resources

(iii) Defence;

(iv) Transportation;

(v) National Emergency Management Agency; and

(vi) Oil Producers' Trade Section of Lagos Chambers of Commerce (OPTS).”


Objectives of the Agency
5. The objectives of the Agency shall be to co-ordinate and implement the National Oil Spill Contingency Plan for Nigeria (in this Act referred to as "the Plan") as follows-
           
(a)        safe, timely, effective and appropriate response to major or disastrous oil pollution;
             

Amendment of section 5.
5. Section 5 of the Principal Act is amended by:

(a) substituting for the existing preamble, a new preamble as follows:

“Objectives of the Agency.
5. The objectives of the Agency shall be to monitor and regulate Tiers 1 and 2 oil spills as well as coordinate, implement and review the National Oil Spill Contingency Plan for Nigeria (in this Act referred to as "the Plan") as follows:”

(b) substituting for the existing paragraph (a), a new paragraph as follows:

“(a) establish a viable national operational organization that ensures a safe, timely, effective and appropriate response to all oil and gas pollution as well as other hazardous and noxious substances in the petroleum sector.”


Functions of the Agency
6. (1) The Agency shall-

(a) be responsible for surveillance and ensure compliance with all existing environmental legislation and the detection of oil spills in the petroleum sector;

(b) receive reports of oil spillages and co-ordinate oil spill response activities throughout Nigeria;

(c) co-ordinate the implementation of the Plan as may be formulated, from time to time, by the Federal Government;

(d) co-ordinate the implementation of the Plan for the removal of hazardous substances as may be issued by the Federal Government;

(e)  perform such other functions as may be required to achieve the aims and objectives of the Agency under this Act or any plan as may be formulated by the Federal Government pursuant to this Act.

Penalties.
(2) An oil spiller is by this Act to report an oil spill to the Agency in writing not later than twenty-four hours after the occurrence of an oil spill, in default of which the failure to report shall attract a penalty in the sum ofN500,000.00 for each day of failure to report the occurrence.

 (3) The failure to clean up the impacted site, to all practical extent including remediation, shall attract a further fine of one million naira.

(4) Such notice in writing is deemed to have been made, if delivered at the nearest zonal office closer to the impacted site, and of the Agency, the National Control and Response Centre within the stipulated time in subsection (2).

Amendment of section 6.
6. Section 6 of the Principal Act is amended by substituting for the existing one a new section as follows:

Functions of the Agency.
6. (1) The Agency shall:

(a) be responsible for surveillance and enforce compliance with all existing environmental legislation in the petroleum sector including those relating to prevention, detection and general management of oil spills, oily wastes and gas flare;

(b) enforce compliance with the provisions of international agreements, protocols, conventions and treaties relating to oil and gas and oil spill response management and such other related agreements as may-from time to time come into force;

(c) receive reports of oil spillages, leakages from gas pipelines, storage facilities and co-ordinate oil spill and gas leakages response activities throughout Nigeria;

(d) ensure the remediation of oil impacted sites irrespective of the cause of the spillage;

(e) co-ordinate the implementation of the Plan as may be formulated, from time to time, by the Federal Government;

(f) co-ordinate the implementation of the Plan for the removal of hazardous and noxious substances as may be issued by the Federal Government;
(g) ensure that all oil industry operators in Nigeria subscribe to and be bonafide members of Clean Nigeria Associates (CNA) or any other similar association by whatever name called; and.

(h) perform such other functions as may be required to achieve the aims and objectives of the Agency under this Act or any plan as may be formulated by the Federal Government pursuant to this Act.

Penalties
(2) (a) An oil spiller is by this Act to report an oil spill to the Agency in writing, by fax or electronic mail not later than 24 hours after the occurrence of an oil spill in default of which the failure to report shall attract penalty in the sum of N2,000,000 for each day of failure to report the occurrence;

(b) A gas pipeline or storage facility owner is by this Act to report a gas leakage to the Agency in writing, by fax or electronic mail not later than 24 hours after the occurrence of the gas leakage in default of which the failure to report shall attract penalty in the sum or N2,000,000 for each day of failure to report the occurrence.

(3) The failure to clean up the impacted site, to all practical extent including the submission of action plan for remediation within two weeks of the occurrence of the spill in accordance with the polluter pays principle shall constitute an offence and on conviction the oil spiller shall be liable to a fine not less than N5,000,000 or to imprisonment for a term not exceeding 2 years or to both such fine and imprisonment.

(4) The notice required under subsection (2) of this section shall be deemed to have been made, if delivered at the nearest zonal or field office of the Agency closer to the impacted site or the National Control and Response Centre within the time stipulated in subsection (2) of this section.”



Insertion of new section.
7. (1) There shall be inserted immediately after section 7 of the Principal Act, the following new sections:

Abandonment/Decommissioning of drill sites and oil facilities.
8. (1) The Agency shall monitor the process of decommissioning or abandonment of drill sites and oil facilities as well as oil and gas industry operational areas in accordance with the procedure and guidelines issued by the Agency.

(2) The decommissioned/abandoned drill sites shall be cleaned-up, remediated and restored to its natural or near natural states by the oil facility owner.

(3) The Agency shall be notified in writing to commence the decommissioning and abandonment of any oil facilities or installations within its area of operation.

(4) Failure to request or notify the Agency on the commencement of such activities will attract penalties prescribed in the Agency's regulation, guidelines or standards.

Pipelines and other oil facilities integrity monitoring and testing.
9.  (1) The Agency shall assess the integrity of oil facilities which include but not limited to pipelines, well heads, manifolds, storage facilities, barges and vessels to ensure that oil facility owners conform to design specifications as well as the provision in the Agency's regulations, guidelines and standards for the oil and gas sector.

(2) The Agency shall provide a programme for the assessment and monitoring of the oil and gas facilities to enhance its performance for distribution, storage and transportation of the upstream, midstream and downstream products”.

(3) The existing sections 8 and 9 of the Principal Act shall be renumbered as section 10 and 11 respectively.


Fund of the Agency
11. The Agency shall establish and maintain a fund into which shall be paid and credited-

(a) the take-off grant from the Federal Government;

(b) annual subvention from the Federal Government consolidated revenue;

(c) such counterpart funding as may be provided, from time to time by a State or Local Government;

(d) loans and grants-in-aid from national, bilateral and multilateral agencies;

(e) rents, fees and other internally generated revenues from services provided by the Agency; and

(f) all other sums accruing to the Agency from time to time.
Amendment of section 11
8. Section 11 of the Principal Act is amended by:

(a) inserting immediately after paragraph (b), a new paragraphs (c), (d) and (e) as follows:

“(c) 2.5 per cent of the ecological fund annually for the management of oil spill disasters and remediation of oil impacted sites arising from third party interference;

(d) 0.5 per cent operations funds of oil companies for the enforcement of environmental legislation in the petroleum sector;”

(e) 10 cents from the sale of each barrel of oil to be set aside for environmental management;"

(b) renumbering the existing paragraphs (c), (d), (e) (f) and (g) as paragraphs (f), (g), (h) and (i) respectively.


Federal Government intervention, etc.
19. (I) The Agency shall-
           
(a) in the event of a major or disastrous oil spill, in collaboration with other Agencies co-opt, undertake and supervise, all those provisions as set out in the Second Schedule to this Act;

(b) assess the extent of damage to the ecology by matching conditions following the spill against what existed before (reference baseline data and ESI maps);


(3) The Agency shall -
             
(d) assist in the assessment of damage caused by an oil spillage.

Amendment of section 19.
9. Section 19 of the Principal Act is amended by:

(a) inserting the following new paragraph (b) immediately after subsection (1)(a), that is:

“(b) inspect oil and gas facilities with a view to ensuring full compliance with existing environmental legislation on oil and gas pollution”;

(b) renumbering the existing subsections (l) (b), (c), (d), (e), (f), (g), (h), (i) and (j) as subsections (1) (c), (d), (e), (f), (g), (h), (i), (j) and (k) respectively;

(c) by deleting the existing subsection (3)(d).


Regulations.
26. The Agency may, with the approval of the Governing Board make such regulations as in its opinion are necessary or expedient for giving full effect to the provisions of this Act and for the due administration of its provisions.
Amendment of section 26.
10. Section 26 of the Principal Act is amended by:

(a) renumbering the existing section as subsection (1);

(b) adding the following new subsections (2): (3) and (4) immediately after subsection (1) to read:

“(2) The Agency may in pursuance of the provision of subsection (l) of this section make regulations setting specifications and standard relating to the:

(a) use of dispersant;

(b) engagement or invitation of any oil spill responder by oil companies;

(c)  establishment of a benchmark for oil spill contingency planning;

(d) development of framework to guide operators in Oil Spill Contingency Planning; and

(e) most appropriate means of preventing and combating various oil spills and its attendant oil and gas pollution.

(3) Any person who contravenes the regulations made pursuant to subsection (2) of this section commits an offence and shall on conviction, be liable to a fine not less than N500,000 or to imprisonment for a term not less than two years or to both such fine and imprisonment and additional fine ofN50,000 for every day the offence subsists.

(4) Where an offence under subsection (2) of the section is committed by a body corporate, it shall on conviction be liable to a fine not less than N2,000,000 and additional fine of N500,000 for every day the offence subsists.".






Insertion of new sections 27, 28, 29, 30 and 31
11. (1) There shall be inserted immediately after section 26 of the Principal Act, the following new sections:

“Power to enter premises.
27. (1) An officer of the Agency may, in the course of his duty, at any reasonable time and on production of his certificate of designation if so required:

(a) enter and search with a warrant issued by a court, any premises including land, vehicle, tent, vessel, floating craft including Maritime Tankers, Barges of Floating Production, Storage, Offload (FPSO) and oil and gas facilities or any inland waters and other structure, at all times, for the purposes of conducting inspection, searching and taking samples for analysis which he reasonably believes. carries out activities or stores goods which contravene environmental standards or legislation relating to oil and oily wastes management;

(b)  examine any article found pursuant to paragraph (a) of this subsection, which appears to him to be an article to "which this Act or the regulations made under apply or anything which he reasonably believes is capable of being used to the detriment of the environment in the petroleum sector;

(c) take a sample or specimen of any article to which this Act or the regulations apply or which he has power to examine under paragraph (b) of this subsection;

(d) open and examine, pursuant to paragraph (a) of this subsection, any container or package which he reasonably believes may contain anything to which this Act or its regulations apply or which may help in his investigations;

(e) examine any book, document or other record found pursuant to paragraph (a) of this subsection, which he reasonably believes may contain any information relevant to the enforcement of this Act or the regulations and make copies thereof or extracts there from;

(f) seize and detain for such time as may be necessary for the purpose of this Act, any articles by means of or in relation to which he reasonably believes any provision of this Act or the regulations has been contravened; and

(g) obtain an order of a court to suspend activities, seal and close down premises including land, vehicle, tent well head, vessel, floating craft and oil gas facilities or any inland waters and other structure whatsoever.

(2) A written receipt shall be given for any article or thing seized under subsection (l) of this section and the reasons for such seizure shall be stated on such receipt.

(3) An article seized under this Act shall be kept or stored in such a place as the officer of the Agency may direct and shall be returned to the owner or the person from where it was seized if the article upon analysis or examination is found to conform with tile requirements of this Act or regulations made under it.

(4) An article seized by an officer of the Agency in pursuance of this Act or the regulations made under it, may be submitted to an analyst for analysis or examination and the analyst upon making such analysis or examination shall, issue a certificate or report in the prescribed form, setting forth the result of such analysis or examination and the officer of the Agency shall, on demand, deliver a copy of such certificate or report to the owner of the article if the article is to be subject of a proceeding under this Act or regulations thereunder.

(5) In this section, the expression "article" to which this Act or regulations made under it apply are:

(a) liquid, soil, vegetation;

(b) biological and chemical samples; and

(c) such other articles or samples as may be determined by the Agency.

Offences and penalties.
28. (1) A person who obstructs an officer of the Agency in the performance of his duties under sections 5, 6 and 7 of this Act commits an offence and is liable on conviction to a fine not less than N300,000 for an individual or to imprisonment for a term not less than 2 years or to both fine and imprisonment, and an additional fine of N50,000 for each day the offence subsists and in the case of a body corporate, it shall be liable on conviction for a fine of N5,000,000 and an additional fine of N500,000 for each day the offence subsists.
(2) Any person who contravenes the provision of any regulations made under this Act is guilty of an offence and is liable on conviction to the penalties specified in the regulations.

Conduct of proceedings.
29. (1) A suit shall not be commenced against the Agency before the expiration of a period of one month, after written notice of intention to commence the suit shall have been served on the Agency by the intending plaintiff or his agent.

(2) Subject to the provisions of section 174 of the Constitution of the Federal Republic of Nigeria 1999, (which relates to the power of the Attorney-General of the Federation to institute, continue or discontinue criminal proceedings against any person in a court of law), any officer of the Agency may, with the consent of the Attorney -General of the Federation, conduct criminal proceedings in respect of offences under this Act or regulations made under this Act.

(3) In a judicial proceeding for an offence under this Act or any regulation made under it, the provisions of the Criminal Procedure Act or depending on the venue, the Criminal Procedure Code shall, with such modification as the circumstance may require, apply in respect of such matter to the same extent as they apply to the trial of offences generally.

Existing laws.
30. (1) Any written law in force immediately before the coming into force of this Act relating to oil, oily wastes pollution management and gas leakages in the petroleum sector shall have effect subject to modifications as may be necessary to bring into conformity with the provisions of this Act and where the provision of any such law is inconsistent with any provision of this Act, the provision of this Act shall prevail, and that other law shall be void to the extent of its inconsistency.

(2) Any written law in force immediately before the coming into force of this Act conferring oil: oily wastes pollution management and gas leakages functions on any other establishment or agency in the petroleum sector is hereby repealed to the extent of its duplication.

Requisition, etc.
31. (1) In the exercise of its functions under this Act, the Agency may demand by requisition from any person or organization, any available equipment, facilities or personnel which may assist in a speedy and effective cleaning and rescue operation during an oil spill disaster.

(2) Any person or organization that:

(a) willfully obstructs or impedes the Agency or any person acting under the authority of the Agency in the exercise of any powers or duties under this Act; or

(b) without reasonable excuse fails to:

(i) render assistance or release any available equipment, facility or personnel required for cleaning and rescue operation or other oil spill disaster curtailment activities; or

(ii) comply with a directive of the Agency, is guilty of an offence and liable on conviction to a fine not less than N500,000 or imprisonment for a term of 2 years or to both such fine and imprisonment.

(3) The Agency shall ensure that the Polluter provides reasonable compensation for loss or damage arising from the use of any equipment, facility or personnel required under this section of this Act.”
(4) The existing sections 27 and 28 of the principal Act shall be renumbered as sections 34 and 35 respectively.


Interpretation.
27. In this Act-

"Agency" means the National Oil Spill Detection Response Agency established under section 1 of this Act;

"Centre" means the National Control and Response Centre established under section 19 of this Act;

"Chairman" means the Chairman of the Governing Board of the Agency;

"Governing Board" means the National Oil Spill Detection Response Governing Board of the Agency established under section 2 of this Act;

"member" means a member of the Governing Board of the Agency and includes the Chairman;

"Minister" means the Minister charged with responsibilities for matters relating to Environment; and

"Ministry" shall be construed accordingly.
Amendment of section 27.
12. There shall be substituted for the existing section 27 of the Principal Act, the following new section, that is:

“Interpretation.
32. In this Act, unless the context otherwise requires:

"Agency" means the National Oil Spill Detection and Response Agency established under section 1 of this Act;

"Centre" means the National Control and Response Centre established under section 18 of this Act;

"Chairman" means the Chairman of the Governing Board of the Agency;

"Constitution" Constitution of the Federal means Republic of Nigeria;

"Court" means Federal or State High Court;

"gas" or "natural gas" means wet gas, dry gas, lean gas, all other gaseous hydrocarbons, and all substances contained therein, which are produced along with crude oil or gas; excluding those condensed or extracted liquid hydrocarbons that are liquid at normal temperatures and pressure conditions such as stabilized or field condensate, including the residue gas remaining after the condensation or extraction of the liquid hydrocarbon from gas;

"Governing Board" means the National Oil Spill Detection and Response Governing Board of the Agency established under section 2 of this Act;
"member" means a member of the Governing Board of the Agency and includes the Chairman;

"Minister" means the Minister charged with responsibilities for matters relating to environment;

"Ministry" shall be construed accordingly;
"officer" means any employee of the Agency;

"oil" means mineral oil (or any related hydrocarbon) or natural gas as it exists in its natural state in strata, and does not include coal or bituminous shade or' other stratified deposits from which oil can be extracted by destructive distillation but including premium motor spirit, automotive gas oil, low/high pour, fuel oil, aviation fuel, kerosene, liquefied petroleum gases and any lubrication oil or grease or other lubricant oil in its natural state before it has been refined or treated;

"oil spill responder" includes Clean Nigeria Associates (Oil Companies Cooperative), Oil Spill Response Limited (OSRL) or any other oil spill response contractors; and

"release" means any spilling, leaking, pump Leaking, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, discarding or disposing into the environment;"

"remediation" means the process of remedying or restoring an area or situation to its natural (or as close to natural as possible) state";

"Tier" means operational type spills, less than or equal to 7 tones (50 bbls), that may occur at or near a company's own facilities, as a consequence of its own activities." and

"Tier 2" means a larger spill, greater that 7 tones (50 bbls) but less than 700 tones (5000 bbls), in the vicinity of a company's facilities where resources from another company, industry and possible government response agencies in the area can be called in on a mutual aid basis;

"Tier3" means a larger spill, greater than 700 tones (500bbb) where substantial further resources will be required and support from a Nation (Tier 3) or international cooperative stockpile, like the Oil spill Response Ltd (OSRL, may be necessary. It is likely that such operation would be subject to Government controls or even direction.



Short title.
13. This Act may be cited as the National Oil Spill Detection and Response Agency (Establishment, Etc.) Act (Amendment) Bill, 2017.


FIRST SCHEDULE

[Section 2 (5)]

Supplementary Provisions Relating to the Governing Board, etc.

Proceedings  of the Governing Board

3. The quorum at a meeting of the Governing Board shall consist of the Chairman or, in an appropriate case, the person presiding at the meeting pursuant to paragraph 2 of this Schedule and six other members.
Amendment of the First Schedule
14. The First Schedule to the Principal Act is amended by substituting for the word "six" the word "three" in the third line of paragraph 3 therein.



EXPLANATORY MEMORANDUM

(This note does not form part of the above Act but is intended to explain its purport)

This Act amends the National Oil Spill Detection and Response Agency Establishment, Etc.) Act 2006 to provide, among other things, statutory power for the Agency to charge adequate fines, introduce criminal offences and penalties in order to ensure strict compliance with all existing environmental legislation in the petroleum sector.