Advanced Natural Resources Stewardship and Environmental Advocacy
Some international, regional and national regulatory efforts to combat environmental menace.
i. Convention on the prevention of marine pollution by dumping of waste and other matters 1972: Commonly called the “London Convention” or “LC ‘72” and also abbreviated as Marine Dumping. This is an agreement to control pollution of the sea by dumping and to encourage regional agreements supplementary to the Convention. It covers the deliberate disposal at sea of wastes or other matter from vessels, aircraft, and platforms. This came into force in Nigeria on 31 October 2010. The Harmful Waste Act 1988 prohibits the carrying, depositing and dumping of harmful waste on the land and territorial waters of Nigeria.
ii. International Convention for the prevention of pollution of the sea by oil 1954 (as amended in 1962 and 1969). This was implemented in Nigeria by the enactment of the Oil in Navigable Waters Act, 1968.
iii. United Nations Conference on Desertification (UNCOD) 1977: This was ratified by Nigeria in July 1997 and is implemented by the National Action Programme to Combat Desertification (NAP) (as part of the National policy on Environment) which spells out critical activities to be taken in a holistic manner to tackle the menace of desertification in Nigeria.
iv. United Nations Conference on Environment and Development (UNCED)
v. The Basel Convention on the Control of Trans-boundary Movements of Hazardous Waste and their Disposal: The provisions of the Convention centre around the following principal aims:
· The reduction of hazardous waste generation and the promotion of environmentally sound management of hazardous wastes, wherever the place of disposal;
· The restriction of trans-boundary movements of hazardous wastes except where it is perceived to be in accordance with the principles of environmentally sound management; and
· A regulatory system applying to cases where trans-boundary movements are permissible.
Nigeria has ratified the Basel Convention on the Trans-boundary Movement of Hazardous Wastes (Special Criminal Provisions Etc.) Act of 1988 (Harmful Waste Act) restricts the export of hazardous wastes for final disposal in Nigeria.
vi. “Dumping of Nuclear and Industrial Wastes in Africa” 1988: Commonly referred to as the Bamako convention which encourages parties to enter into bilateral, multilateral and regional agreements on Hazardous Waste to help achieve the objectives of the convention.
The impetus for the Bamako convention arose also from:
· The failure of the Basel Convention to prohibit trade of hazardous waste to less developed countries (LCDs);
· The realization that many developed nations were exporting toxic wastes to Africa (Koko case in Nigeria)
The purpose of the convention is to:
a) Prohibit the import of all hazardous and radioactive wastes into the African continent for any reason
b) Minimize and control trans-boundary movements of hazardous wastes within the African continent.
c) Prohibit all ocean and inland water dumping or incineration of hazardous wastes.
d) Ensure that disposal of wastes is conducted in an “environmentally sound manner”.
e) Promote cleaner production over the pursuit of a permissible emissions approach based on assimilative capacity assumptions
f) Establish the precautionary principle.
Nigeria has ratified the Bamako Convention on the Trans-boundary Movement of Hazardous Wastes and the Harmful Waste (Special Criminal Provisions Etc.) Act of 1988 (Harmful Waste Act) restricts the export of hazardous wastes and of final disposal in Nigeria
vii. Convention for cooperation in the Petroleum and Development of the Marine and Coast Environments of West and Central Environments of West and Central Africa 1984.
viii. Vienna convention for the protection of the ozone layer 1985: Ratified by Nigeria on 31 Oct 1988. The National Environmental (Ozone Layer Protection) Regulations, 2009 seeks to prohibit the importation, manufacture, sale and the use of ozone-depleting substances.
ix Rio Declaration on Environment and Development 1992.
The above treaties and conventions are part of the key sources of Nigerian Environmental Law. It is noteworthy that out of about eighty-five international environmental conventions that are applicable to Nigeria, she has signed and ratified about thirty-six, less than half of the number.
1. Constitution of the Federal Republic of Nigeria: Section 20 of the 1999 Nigeria Constitution in consideration of the importance of the environment states that: “The state shall protect and improve the environment and safeguard the water, air and land, forest and wildlife of Nigeria”
2. State laws: these are laws made by the organ of government whose primary duty is to make laws for the state, i.e. the legislative arm of government.
Some state laws in Nigeria include:
i. Harmful Waste (Special Criminal Provisions) Act 1988 and
ii. The Federal Environmental Protection Agency Act Cap 131 LFN 1990.
iii. The Oil in Navigable Waters Act 1968
iv. Oil Terminal Dues Act Cap 339 LFN 1990
v. The River Basin Development Act
vi. Environmental Impact Assessment Act no 68 1992
vii. Management of Solid and Harmful Waste Regulation
viii. Associated Gas Re-Injection Act Cap 26 LFN 1990
ix. The Environmental Sanitation Edict No 4 of 1987 (Lagos state) No 4 of 1986 (Oyo state)
x. The pollution, Prevention and Control (Miscellaneous Provision) Edict of Imo State, 1985.
Sources of law
Common law is law that has been developed on the basis of preceding rulings by judges. Nigeria received many laws from England in 1900 that come under this category. The law of Torts is the area of law under the common law that mainly prescribes the control of environmental pollution. There are four torts specifically relevant to the control of environmental pollution. They are Negligence, Nuisance, Trespass and Strict Liability.
Statute/Statutory law is written law as decided by the legislature or other government agency. The main differences are how the laws are created and the basis of challenges.
Overview of key Nigeria environmental legislation
1. HARMFUL WASTES (SPECIAL CRIMINAL PROVISION ETC.) ACT OF 1988 (HARMFUL WASTER ACT): The Harmful Waster Decree 42 of 1988 was the first concise law to protect the environment or referred to as the National Environmental Law in Nigeria. It was enacted following the Koko toxic waste episode in 1987. Before this time, Nigeria was ill equipped to manage serious environmental crisis, as there were no institutional arrangement or mechanisms for environmental protection and enforcement of environmental laws and regulations in the country. The Federal Government promulgated the harmful wastes act and it facilitated the establishment of the then Federal Environmental Protection Agency (FEPA) through Decree 58 of 1988.
The following Regulations were made pursuant to the FEPA Act:
· National Environnemental Protection (Effluent Limitation) Regulations
1) National Environmental Protection (Pollution Abatement in Industries and Facilities Generating Wastes) Regulation; and
2) National Environmental Protection (Management of Solid and Hazardous Wastes) Regulation.
FEPA and other relevant Departments in other Ministries were subsequently merged to form the Federal Ministry of Environment in 1999, but without an appropriate enabling law on enforcement issues.
FEPA has now been replaced by NESREA since 2007 for the following reasons:
i. Lack of or weak enforcement of existing environmental law and regulations: Under FEPA, regulatory compliance rate by industries was generally between 20-40%.
ii. Inappropriate enforcement mechanisms.
iii. Increasing industrial pollution incidents with adverse impacts on the environment and human health including.
· 60-70% of surface waters in urban areas being coloured, foul smelling, fishless, and non-potable and non-swimmable.
· Contamination of shallow groundwater aquifers by infiltration of toxic and non-toxic domestic and industrial wastes; petroleum waste product.
· Visual impairment and reduce fish catch in coastal and marine waters.
· Nuisance and health problems from industrial effluents disposed on land or wetlands.
· Worsening public health through exposure to pollutants, thereby putting the lives of millions of Nigerians at risk from water related health diseases such as typhoid fever.
2. ENVIRONMENTAL IMPACT ASSESSEMENT ACT OF 1992 (EIA): This act makes EIA mandatory for development projects likely to have adverse impacts on the environment prior to implementation. Prior to the enactment of the EIA Act in Nigeria, project appraisal were limited predominately to feasibility studies and economic-cost-benefit analysis. Most of these appraisals did not take environmental costs, public opinion, and social environmental impacts of development projects into consideration. The act stipulates that an environmental impact assessment shall be required where a Federal, State or local government council:
a) Is the proponent of the project and does any act or thing which commits the Federal, state or local government authority to carrying out the project in whole or in part;
b) Makes or authorize payment or provides a guarantee for a loan or any form of financial assistance to the proponent for the purpose of enabling the project to be carried out in whole or in part, except when the financial assistance is in the form of any reduction, avoidance, deferral, removal, refund, remission or other form of relief from the payment of any tax, duty of excise under the Customs Excise Tariff, etc. (Consolidated) Act or any order made there under, unless that financial assistance is provided for the purpose of enabling an individual project specifically named in the enactment, regulation or order that provides the relief to be carried out
c) Has the administration of Federal, state or local government and leases or otherwise disposes of those lands or any tests in those lands or transfers the administration and control of those lands or invest therein in favour of the Federal Government or its agencies for the purpose of enabling the project to be carried out in whole or in part; or
d) Under the provisions of any law or enactment, issues a permit or licence, grants an approval or takes any other action for the purpose of enabling the project to be carried out in whole or in part.
Excluded projects under the act are:
1) An environmental assessment of a project shall not be required where-
a) In the opinion of the Agency the projects is in the list of projects which the President or the Council is of the opinion that the environmental effects of the projects are likely to be minimal;
b) The project is to be carried out during national emergency for which temporary measures have been taken by the Government;
c) The project is to be carried out in response to circumstances that, in the opinion of the Agency, the project is in the interest of public health or safety.
2) For greater certainty, where the Federal, State or Local government exercise power or performs a duty or function for the purpose of enabling projects to be carried out, an environmental assessment may not be required if-
a) The project has been identified at the time the power is exercised or the duty or function is performed; and
b) The Federal State, or Local government has no power to exercise any duty or perform function relation to the project after they have been identified.
Any person who fails to comply with the provisions of the act shall be guilty of an offence under the act and liable on conviction in the case of an individual to a fine of N100, 000 or five years’ imprisonment and in the case of a firm or corporation, a fine of not less than N50, 000 and not more than N1, 000,000.
3. THE NATIONAL OIL SPILL DETECTION AND RESPONSE AGENCY ACT 2006 (NOSDRA ACT): This is a specialized legislation on environmental protection in the oil and gas sector in Nigeria. It established the National Oil Spill Detection and Response Agency with responsibility for preparedness, detection and response to all oil spillages in Nigeria. It also established the advisory, monitoring, evaluating, mediating and coordinating arm of NOSDRA known as the National Control and Response Center (NCRC).
According to the act, “The Agency shall be responsible for
· Surveillance and ensuring compliance with all existing environmental legislation and detection of oil spills in the petroleum sector.
· Receiving reports of oil spillages and co-ordinate oil spill response activities throughout Nigeria.
· Coordinating the implementation of the Plan for the removal of hazardous substance as may be issued by the Federal Government.
· Performing such other function 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.”
4. NATIONAL ENVIRONMENTAL STANDARDS AND REGULATIONS ENFORCEMENT AGENCY (ESTABLISHMENT) ACT (NESREA ACT) OF 2007: This act is arguably the most significant in the history of Nigeria environmental law as it established NESREA as the foremost environmental protection agency after the federal environmental protection agency (FEPA). However, the subsidiary legislation under the FEPA Act is still in force. These include:
· The National Environmental Protection (NEP) (Effluent Limitation) Regulations.
· The NEP (Pollution Abatement in Industries and Facilities Generating Waste) regulation.
· The NEP (Management of Solid and Hazardous Waste) Regulations.
NESREA now has responsibility for the protection and development of the environment, biodiversity conservation and sustainable development of Nigeria’s natural resources in general and environmental technology including coordination, and liaison with, relevant stakeholders within and outside Nigeria on matters of enforcement of environmental standards, regulations, rules, laws, policies and guidelines.
The act empowers NESREA to among other duties,
i. Enforce compliance of the laws, guidelines, polices and standards on environmental matters.
ii. Coordinate and liaise with stakeholders, within and outside Nigeria, on matters of environmental standards, regulations and enforcement.
iii. Enforce compliance with the provision of international agreements, protocols, conventions and treaties on the environment, including climate change, biodiversity conservation, desertification, forestry, oil and gas, chemicals, hazardous wastes, ozone depletion, marine and wild life, pollution, sanitation and such other environmental agreements as may from time to time come into force
iv. Enforce compliance with policies, standards, legislation and guidelines on waste quality, Environmental Health and Sanitations, including pollutions abatement.
v. Enforce compliance with guideline, and legislation on suitable management of the ecosystem, biodiversity conservation and the development of Nigeria’s natural resources
vi. Enforce compliance with any legislation on sound chemical management, safe use of pesticide and disposal of spent packages thereof.
vii. Enforce compliance with regulation on the importation, exportation, production, distribution, storage, sale, use, handling and disposal of hazardous chemicals and waste, other than in the oil and gas sector;
viii. Enforce through compliance monitoring, the environmental regulation and standards on noise, air, land, seas, oceans and other water bodies other than in the oil and gas sector;
ix. Ensure that environmental projects funded by donor organization and external support agencies adhere to regulations in environmental safety and protection;
x. Enforce environmental control measures through registration, licensing and permitting systems other than in the oil and gas sector;
xi. Conduct environmental audit and establish data bank on regulatory and enforcement mechanisms of environmental standards other than in the oil and gas sector;
xii. Create public awareness and provide environmental education on sustainable environmental management, promote private sector compliance with environmental regulations other than in the oil and gas sector and publish general scientific or other data resulting from the performance of its functions; and
xiii. Carry out such activities for the necessary or expedient for the performance of its functions.
The act also empowers the agency to:
i. Prohibit processes and use of equipment or technology that undermine environmental quality
ii. Conduct field follow-up of compliance with set standards and take procedures prescribed by law against any violator
iii. Subject to the provision of the constitution of the federal Republic of Nigeria, 1999, and in collaboration with relevant judicial authorities, establish mobile courts to expeditiously dispense cases of violation of environmental regulation.
iv. Prohibit without lawful authority, the discharge of hazardous substance into the environment. This offence is punishable under this section, with a fine not exceeding N1, 000, 000 and an imprisonments term of five years. In the case of a company, there is an additional N50, 000 for every day the offence persists.
5. 2009 – 2011 ENVIRONMENTAL REGULATIONS: For the provision of effective enforcement of environmental standards, regulations, rules, laws, policies and guidelines by NESREA, the Minister of Environment is empowered to make regulations for the general purposes of carrying out or giving full effect to the functions of the Agency under the NESREA ACT. Twenty-four new regulations have resulted from this with the aim of ensuring sustainable use of natural resources and adoption of sustainable and environmental friendly practices in both industrial and general sanitation nationwide.
The twenty-four regulations are:
1) National environmental (Wetlands, River Banks and Lake Shores) Regulations, 2009: Structure and content wise, these Regulations have been divided into three parts and five schedules. Part one deals with regulations of wetlands and wetland resources in Nigeria. The various regulations under this part address matters relating to the application, objectives and principles of this part of the Regulations, an inventory of wetlands, the furnishing of particulars by state Government, the role of local governments, the declaration of a specifically protected area, control of use of wetlands, the wetland resource use permit system, and implied covenant and duty of land owners and users.
Part two deals with regulation of river banks and lake shores in Nigeria and provides for the following matters, the application, objectives and Principles of this Regulation; identification of river banks and lake shores, the permit system for river banks or lake shore use, duties of the Agency and private landowners as well as the users, and protection zones for river banks and lake shores (whether or not used for purposes of tourism in Nigeria). Part three covers miscellaneous provisions relating to EIA, environmental restoration orders, offences and penalties, appeals and interpretation as well as citation. The schedules provide the parameters for conservation status of wetland, application forms for permits to carry out a regulated activity in a wetland, river bank and lake shore, and a register of river banks and lake shores in Nigeria.
2) National Environmental (Watershed, Mountainous, Hilly and Catchment Areas) Regulations, 2009: The stated objectives of regulations are:
· Every land owner or occupier, while utilizing land in a watershed, mountainous, hilly or catchment area shall:
· Observe and respect the carrying capacity of the land; carry out measures for soil conservation and for the protection of water catchment areas;
· Use the best available environmentally friendly technologies to minimize significant risks and damage to ecological and landscape aspects.
· The agency shall, with respect to watersheds, mountainous, hilly and catchment areas in a particular environment, control activities, which are inconsistent with good land management practices especially in areas prone to landslides, floods, drought, desertification, situation, heavy sediment loads, falling rocks, fires and damage by wind.
3) National Environmental (Sanitation and Wastes Control) Regulations, 2009: The purpose of this regulation is to provide the legal framework for the adoption of sustainable and environmentally friendly practices in environmental sanitation and waste management to minimize pollution.
The act provides that:
· No person is to engage in any activity like to generate Hazardous waste without permit by the Agency
· A generator of waste shall ensure a secured means of storing such wastes
· Every person who generates hazardous waste shall cause such waste to be treated using acceptable methods
· No person shall export or transit hazardous waste without permit by the Agency
· No person shall transit toxic waste destined for another country through the territory of Nigeria without prior informed consent of such movement by the Agency.
· Any person who fails to comply with the above obligations shall be guilty of an offence punishable with a fine of N5,000,000 or imprisonment for five years or both.
4) National Environmental (Permitting and Licensing System) Regulations, 2009: The provisions of this Regulation enable consistent application of environmental laws, regulations and standards in all sectors of the economy and geographical region. The regulation contains procedures for applicants operating any facility that needs a permit must comply with the application procedure laid down in therein. Other provisions include that:
· An application for a permit shall contain all the information specified in the appropriate form relating to the specific permit being applied for.
· The agency shall fix various fees which include fees for application, processing, permits, amendment, renewal, rehearing and appeal.
· The agency may, upon assessment of an application require the applicant to furnish within a specified period, any additional information.
· After due consideration of the application, the agency may grant or refuse the issuance of a permit.
· Where an application is approved, the agency shall inform the applicant of the approval and the conditions of such permit.
· If the agency refuses the grant of a permit, it shall notify the applicant in writing stating the reasons for the decision.
· The applicant shall have an opportunity to appeal to the agency within twenty one working days from the date of the receipt of the notification by the agency.
· The agency may on its own initiative or upon receiving complaint or information from any person, initiate an inquiry into the conduct or activities of the permit holder.
· The agency, if satisfied in her own opinion that enough grounds exist which may warrant the suspension of a permit, may suspend a permit on the grounds that:
a) The permit holder is unable to fully discharge the functions or perform the duties imposed on it by the terms and conditions of the permit and other applicable legislations, rules and regulations.
b) The permit holder has defaulted in complying with any order or direction issued by the agency.
c) The permit holder is carrying out it permit business in a form and manner which constitutes an immediate threat to the public health and safety or ecosystem integrity.
d) Any other circumstance exists which renders it necessary in the public interest to suspend the permit.
· The agency shall cancel a permit if it satisfied that the permit
a) Was issued through fraud or the misrepresentation or non-disclosure of a material fact.
b) The holder has willfully or unreasonably contravened any provision of the act that is applicable to the permit holder.
c) Holder has failed to comply with any term or condition of the permit the breach of which is expressly declared to render it liable to cancellation.
d) Holder has become insolvent or adjudged bankrupt.
e) Holder is unable to fully and efficiently discharge the duties and obligations imposed by the permit.
f) Holder has altered or transferred the permit.
The agency may instead of cancelling the permit, make an order imposing further terms and conditions subject to which the permit holder is allowed to operate thereafter.
Any person who is dissatisfied with any decision of the agency may apply to the director general for a review, rehearing or appeal on such decision.
Although the regulation, does not provide a list of activities that require a permit, NESREA states elsewhere that its “environmental permit(s) enable businesses an industrial facilities whose operations may have potential impact on the environment to be environment-friendly in their operations and to also comply effectively with the relevant environmental standards and regulations”. Also, “For the purpose of clarity, and to guard against unnecessary duplication of Permits, NESREA has categorized her Environmental Permits into the following four (4) main groups:
· Air Quality Permit relating to issues on Atmospheric Emissions, Vehicular Emissions, Open Burning, Refrigeration and Air Conditioning equipment (RAC), and Noise;
· Waste and Toxic Substances Permit relating to issues on Waste Generation, Restricted Chemicals, Sludge Disposal and Effluent Discharge;
· Used Electrical and Electronic Equipment (UEEE) Permit relating handling, import and export of UEEE; and
· Biodiversity Conservation Permit relating to issues on Assess to Genetic Resources”.
5) National Environmental (Access to Genetic Resources and Benefit Sharing) Regulations, 2009: The overall purpose of this Regulation is to regulate the access to and use of genetic resources and ensure sharing of the benefits from their utilization.
6) National Environmental (Mining and Processing of Coal, Ores and Industrial Minerals) Regulations, 2009: This Regulation seeks to minimize pollution from mining and processing of coal, ores and industrial minerals and encourage the application of up-to-date efficient cleaner production technologies.
7) National Environmental (Ozone Layer Protection) Regulations 2009: The provisions of this Regulation seek to prohibit the importation, manufacture, sale and The use of ozone-depleting substance.
8) National Environmental (Food, Beverages and Tobacco Sector) Regulation 2009: The purpose of this Regulation is to prevent and curtail pollution from all operation and ancillary activities of food, beverages and tobacco sector to the Nigeria environment.
9) National Environmental (Textile, Wearing Apparel, leather and Footwear Industry) Regulations, 2009: The main thrust of this regulation is to ensure that all operations and ancillary activities from this sector do not have significant negative impact on the Nigeria environment.
10) National environmental (Noise Standard and Control) Regulations, 2009: The main objective of the provisions of this regulation is to ensure tranquility of the human environment or surrounding and their psychological well-being by regulating noise levels. The regulation provides.
11) National environmental (Chemical, Pharmaceutical, Soap and Detergent Manufacturing Industries) Regulation, 2009: This Regulation seeks to ensure the safe use of chemicals in line with best practice including the adaptation of the principles of reuse, recover and recycle.
12) National Environmental (Standards for Telecommunications and Broadcasting Facilities) Regulation, 2011: The main objective of this regulation is to ensure that activities of the telecom industry do not negatively impact on the environment and human health.
13) National Environmental (Desertification Control and Drought Mitigation) Regulations, 2011: This Regulation seeks to provide an effective and pragmatic regulatory framework for the sustainable use of all areas already affected by desertification and the protection of vulnerable lands.
14) National Environmental (Soil Erosion and Flood Control) Regulations, 2011: This Regulation seeks to provide an effective and pragmatic regulatory framework for the sustainable use of all areas already affected by desertification and the protection of vulnerable land.
15) National Environmental (Base Metals, Iron and Steel Manufacturing/Recycling Industries Sector) Regulations, 2011. The principal thrust of this Regulation is to control all operations and ancillary activities of this sector in order to safeguard the Nigeria Environment from their negative impact.
16) National Environmental (Control of Bush/forest Fire and Open Burning) Regulations, 2001: The principal thrust of this Regulation is to prevent and minimize the destruction of ecosystem through fire outbreak and burning of any material that may affect the health of the ecosystem through the emission of hazardous air pollution.
17) National Environmental (Protection of Endangered Species in International Trade) Regulations, 2011. The major objective of this Regulation is to protect species of endangered wildlife from extinction through the prohibition of trade, importation, etc.
18) National Environmental (Domestic and Industrial Plastic, Rubber and Foam Sector) Regulation, S. I. No. 17 of 2011: The principal thrust of this Regulation is to prevent and curtail pollution of the Nigeria environment from all operations and ancillary activities of this sector.
19) National Environmental (Coastal and Marine Area Protection) Regulations, s. I. No. 18 of 2011:
This Regulation provides for the regulatory framework for the application of preventive precautionary and anticipatory approaches so as to avoid degradation of the coastal and marine environment.
20) National Environmental (Construction Sector) Regulation, S. I. No. 19 of 2011: The purpose of this Regulation is to prevent and minimize pollution of the Nigeria Environment from the impacting activities of Construction, Decommission and Demolition.
21) National Environmental (Control of Vehicular Emission from Petrol and Diesel Engines) Regulations, S. I. No. 20 of 2011: The purpose of this Regulation is to safeguard the Nigeria environment against pollutants from vehicular emission.
22) National Environmental (Non-Metallic Minerals Manufacturing Industries Sector) Regulator, S. I. No. 21 of 2011. This Regulation provides the regulatory framework from the control of all activities of this sector on order to protect the Nigeria environment from their negative impact.
23) National Environmental (Surface and Groundwater Quality Control) Regulations, 2011: The purpose of this Regulation is to restore, enhance and preserve the physical, chemical and biological integrity of the nation’s surface waters, and to maintain existing water uses.
24) National Environmental (Electrical/Electronic Sector) Regulations 2011:
The main purpose of this Regulation is to ensure that best practices are applied and maintained in the operation of this sector in order to safeguard the Nigerian Environmental against pollution hazard.
The regulation defines the role of stakeholders (extended producer responsibilities) as follows:
· All importers, exporters, manufacturers, distributors, and retailers, of various brand of EEE products shall subscribe to an Extended Producers’ Responsibility including the Buy Back.
· The importers/distributors for all EEE equipment traded or donated to individuals, educational, institutions, religious, organization, communities or body corporate by whatever means, shall comply with the EPR program.
· Manufacturers and importers of EEE
· Shall partner with the Agency on the Extended Producers’ Responsibility Program within two years of commencement of these Regulations in order to achieve the Buy Back Program within a period of two years.
· Submit a proposal for an Extended Producers’ Responsibility Programme to the Agency for approval; such a proposal is to include elements for a successful implementation of the scheme;
· Establish a process for the collection, handling, transportation and final treatment of post-consumer electrical electronic products regardless of who is the original brand owner;
· Incorporate the principles of a pollution prevention hierarchy by moving progressively from disposal to reduce, reuse, repair, recover and recycle of post-consumers products;
· Pay an administrative cost to NESREA for use in the promotion of environmentally sound management of WEEE; and
· Create awareness through publication, advertisements, posters, or by any other means of communication and information booklets on the handling and disposal of the equipment.
· Every dismantler shall:
· Obtain registration from the Agency.
· Ensure that the facility and dismantling processes are in accordance with the standards or guidelines published by the Agency from time to time.
· Not process any e-waste for recovery or refining of materials, unless he is registered the NESREA as the recycler for refining and recovery of materials: and
· File annual return to the Agency as the case may be, on or before 30th June following the financial year to which that return relates.
· Refurbishes are to:
· Apply to the Agency for registration and submit details of e-waste generated on yearly basis
· Ensure that the e-waste collected or generated during the process of refurbishing is safely transported to authorized collection centers or registered recyclers as the case may be;
· File annual returns of records to the Agency on or before the 30th day of June following the financial year to which that return relates
· Any person(s) operating e-waste collection center(s) individual or collectively shall:
· Obtain an authorization in accordance with the procedures in the regulation from the Agency as the case may be and provide details such as address, telephone number/helpline number, e-mail, etc. of such collection center(s) to the general public.
· Ensure that the e-waste collected are stored in a secured manners till these are sent to producer(s) or refurbisher (s) or dismantler (s) or recycler(s) as the case may be
· Ensure that no damage is caused to the environment during storage and transportation of e-waste; and
· File annual returns to the Agency on or before the 30th day of June following the financial year to which that returns relate.
· E-waste Recyclers shall:
· Obtain registration from Agency in accordance with the procedures prescribed in the Regulations;
· Ensure that the facility and recycling processes are in accordance with the standards laid down in any guidelines published by NESREA from time to time
· Make available all records to the Agency for inspection
· Ensure that residue generated thereof is disposed in a hazardous waste treatment disposal facility
· File annual returns to the Agency as the case may be, on or before 30the June following the financial year to which that returns relate.
· Any person who violates any of the provisions of the Regulations commits an offence and shall on conviction, be liable to a fine not exceeding N200,000 or to imprisonment for a term not exceeding two year or to both with an additional fine of N5,000 for every day the offence subsists
· Where an offence under any sub-section of the Regulation is committed by any facility, it shall on conviction, be liable to fine not exceeding N1,000,000 with an additional fine of N50,000 for every day the offence subsists.
Following is an overview of relevant legislation for different environmental issues or industries not already mentioned.
Biodiversity loss
The African convention on the conservation of nature and natural resources, 1968 (revises in 2003), ratified by Nigeria on 16 June 1969. The objective of this convention was to encourage individual and joint actions for the conservation, utilization and development of soil, water, flora and fauna for the present and future welfare of mankind, from an economic, nutritional, scientific, educational, cultural and aesthetic point of view.
The provisions of the convention include:
· Contracting states to adopt measures necessary to ensure conservation, utilization and development of natural resources in accordance with scientific principles and with due regards to the best interest of the people.
· Parties to establish polices to conserve, utilize and develop water resources prevent pollution and control water use.
· Parties to protect flora and ensure its best utilization, the management of forests and control of burning, land clearance and overgrazing. Etc
Convention on biological diversity, Nairobi, 22 May 1992, ratified by Nigeria on 27 November 1994. This convention aimed to prevent the destruction of biodiversity against development projects and it makes provision for measures to be taken for the protection of biodiversity against project development.
Petroleum Industry
The petroleum industry is the major source of national revenue for Nigeria and it is well known that most activities associated with the industry have significant environmental aspects and impacts. The Petroleum Act 1969 is the principal legislation that governs pollution control regulations in the oil and gas industry in Nigeria. Section 8(i)b (iii) of the Petroleum Act 1969 empowers the Minister of Petroleum Resources to make regulations for the prevention of pollution of water courses and the atmosphere. Some resultant regulations are:
· The Petroleum (Drilling and Production) Regulations 1969
· The Mineral Oils (Safety) Regulation, 1963
· The Petroleum Regulations 1967
· The Oil in Navigable Waters Decree 1968
· The Oil Pipeline Ordinance Cap 145 of 1956 as amended by the Oil Pipeline Act 1965, Section 17(3) and
· The Petroleum Refining Regulations 1974, Section 43.
The latest of these is the Environmental Guidelines and Standards for the Petroleum Industry in Nigeria (EGASPIN) 1991, revised in 2002.
The stated objectives of EGASPIN are as follows:
· Establish Guidelines and Standards for the Environmental Quality Control of the Petroleum Industry taking into account existing local conditions and planned monitoring programmes.
· Provide, in one volume, for the operator and other interested persons a comprehensive, integrated document on pollution abatement technology, guidelines and standards for the Nigerian Petroleum Industry.
· Standardize the environmental pollution abatement and monitoring procedures, including, the analytical methods for various parameters.
EGASPIN prescribes the permit regime for emissions and discharge of effluents produced in the course of extracting and processing oil and gas in Nigeria. Accordingly, effluent discharge sites must be registered with the Department of Petroleum Resources (DPR) and no oil and gas operator is permitted to discharge effluent without the requisite DPR permit. Relevant DPR permits required include:
· The Industrial Waste Discharge/Disposal Permit relating to all forms of waste discharged (that is, solid, liquid or gas).
· The Production Waste Injection Well Permit for drilling to dispose of waste.
· Gas Flaring Permits/Certificates granted by the Minister of Petroleum Resources, permitting and exploration company to flare gas in specified oil fields.
· Storage Treatment and Disposal Facilities Permit for facilities that store, treat and dispose of on-site hazardous waste.
The Petroleum (Drilling and Production) (Amendment) Regulations 2006 sets out provisions for the disposal of waste products from petroleum refining. The regulations provide, among other things, for waste products and refinery effluent to be disposed of in accordance with good refining practices and to sites designated by the Department of Petroleum Resources. In addition, these regulations require the manager of a refinery to employ practicable precautions to prevent pollution to the environment from petroleum products.
The Harmful Wastes (Special Criminal Provisions) Act 1988 applies to the oil industry as it criminalizes the carriage, deposit or dumping of any harmful waste on any land or in any territorial waters, and the possession of harmful wastes for this purpose.
Apart from the general penalties prescribed by law for non-compliance and contraventions, no taxes are payable on waste disposal.
Under the EGASPIN, licensees and lessees are required to decontaminate, dismantle and remove structures form oil and gas installations and facilities after such installations or facilities have been abandoned and “decommissioned”. This decommissioning activity is to commences at least one year after the facilities have been completely shut down or abandoned.
The Associated Gas Reinjection Act (AGRA) and the AGRA Regulations 2005 set a cease-date of January 2005 for the flaring of gas and prescribed a penalty of forfeiture of the relevant field concessions. Due however, to insufficient investment in gas utilization infrastructure, oil exploration companies have historically (and continue to) flared any gas associated with the extraction of the primary product. Reports suggest that the volume of gas flared in Nigeria is second only to Russia! To address this, the first attempt by the Nigerian Government aimed at ending gas flaring was a 1969 order. The Associated Gas Re-injection Act 1979 (AGRA) required oil exploration companies to:
· Submit documentation on schemes for the viable utilization of associated gas produced from groups of fields.
· Cease gas flaring by 1 January 1984.
The Federal gas revolution programme, 2011 is another attempt at utilizing the nation’s vast gas deposit. It’s objective is optimize the advantage of the abundance of natural gas to positively impact on the lives of present and future generations of the Nigerian citizens and it’s provisions include to:
· To provide the necessary infrastructures for the development and capitalization of the nation’s gas resources.
· To ensure sustainable electricity delivery for domestic and industrial areas.
· To accelerate industrialization by providing cheaper, safer, cleaner and environmentally friendly fuel to industries in the region.
· By 2014 to position Nigeria firmly as the undisputed regional hub for natural gas based industries.
However, the AGRA permits the Minister of Petroleum Resources to allow an exploration company to continue to flare gas on prescribed terms and conditions in relation to specified oil fields. The Association Gas Re-injection (Continued Flaring of Gas) Regulations under the Act outline the conditions for the issue of a certificate by the Minister for the continued flaring of gas. The AGRA imposes a nominal fine on exploration companies that continue to flare gas after 1 January 1984. This cease-date has been moved several times, most recently by the Associated Gas Reinjection Act (Continued Flaring of Gas) Regulations 2005 (AGRA Regulations 2005), which set a cease-date of January 2005.
The proposed Petroleum Industry Bill (PIB), (based on the Report of the Oil and Gas sector Reform Implementation Committee (OGIC) set up by the Federal Government in 2000 to carry out a comprehensive reform of the oil and gas industry) promises the change or reforms necessarily required to impact positively on the lives of the people and society at large. The bill promises to promote and protect the interest of the consumers and also maximize economic benefits to the nation. It also proposes:
· That roles and responsibilities are clearly separated between the different public agencies within the industry.
· That there is the need to orient and instill in all the relevant departments and units in the industry commercialization principles
· That there is the need to reposition the oil and gas industry to be more competitive within the contemporary challenges its faced within the sector domestically and globally.
Waste
Many regulations have provisions for waste management in Nigeria. Most of these have been discussed elsewhere and are listed below:
· Harmful waste (special criminal provisions, etc.) act 1988.
· All activities relating to the purchase, sale, importation, transportation, deposit, storage of harmful waste prohibited and declared unlawful.
· The carrying on of the above activity without lawful authority is criminal and shall attract an imprisonment for life and forfeiture of carrier object, etc.
· Harmful waste means any injurious, poisonous, toxic or noxious substance and, in particular, includes nuclear waste emitting any radioactive substance if the waste is in such quantity, whether with any other consignment or the same or different substances, as to subject any person to the risk of death, fatal injury or incurable impairment of physical and mental health; and the fact that the harmful waste is placed in a container shall not by itself be taken to exclude any risk which might be expected to arise from the harmful waste.
· The National Environmental Protection (NEP) (Effluent Limitation) Regulations
· Every industry is to install anti-pollution equipment for the detoxification of effluent and chemical discharges emanating from industries.
· The anti-pollution equipment should be based on the Best Available Technology (BAT), the Best Practicable/technology (BPT) or the Uniform Effluent Standards (UES).
· Waste water parameters to be monitored are as follows: - Ammonia, Chloride, Chromium, Nitrate, Sulphate, Suspended Solids , Urea, Organic Nitrogen Compounds, Zinc, Calcium, COD Gas Purification Chemicals, Iron, Oil and Grease, pH, Phosphate, Sodium, Temperature and Total Dissolved Solids.
· The NEP (pollution abatement in industries and facilities generating waste) regulations 1992
· An industry or facility shall;
a. Have a pollution monitoring unit within its premises
b. Have on site a pollution control or
c. Assign the responsibility for pollution control to a person or body corporate accredited by FMENV.
· A discharge, including solid, gaseous and liquid waste from any industry or facility shall be analyzed and reported to the nearest office of FMENV every month, through a discharge Monitoring Report.
· An industry or a facility shall setup machinery for combating pollution hazard and maintain equipment in the event of an emergency.
· Engaging in the storage, treatment and transportation of harmful toxic wastes within Nigeria without a permit issued by FMENV prohibited.
· An industry or a facility which is likely to release gaseous, particulate, liquid or solid untreated discharge shall install, into its system, appropriate abatement equipment in such manner as may be determined by FMENV.
· No effluent with constituents beyond permissible limits shall be discharged into public drains, rivers, lakes, sea or underground injection without permit issued by FMENV.
· Industry forbidden from exposing an employee to any hazardous condition in his workplace.
· FMENV shall demand environmental audits from existing industries and Environmental Impact Assessment from new industries and major development projects.
· The management of solid and hazardous wastes regulations 1992
· All industries and facilities to inform the FMENV of all toxic, hazardous and radioactive substances, which they discharge during their production processes
· The national oil spill detection and response agency act 2005 (NOSDRA act)
· The national environmental standards and regulations enforcement agency act 2007 (NESREA act)
· National environmental (sanitation and wastes control) regulations, 2009
Additional laws regulating e-waste include:
· Guide for importers of UEEE: The major provisions of the guide are:
· Every importer of UEEE should register with NESREA
· The Federal Government of Nigeria allows the importation of new EEE and functional UEEE
· Ban on the importation of WEEE and near end-of-life electrical/electronic equipment
· Any WEEE imported into Nigeria shall be sent back to the Port of origin
· Administrative punitive fee shall be imposed on the carrier of WEEE or UEEE mixed with WEEE
· Every carrier of UEEE shall be accompanied by:
· Cargo Movement Requirement (CMR) document
· Proof of evaluation/testing and certificate containing testing information on each item
· Declaration of the liability by the importer (Letter of Indemnity); and
· Copy of permit to import.
In addition, most of the 36 states in Nigeria have waste disposal/management regulations.
Below is a selection:
· Lagos State Waste Disposal Law
· Lagos State Environmental Protection Agency (LASEPA)Law
· Lagos State Waste Management Authority (LAWMA) Law
· Kano State Environmental Protection Agency Law
· Oyo State Environmental Protection Agency Law
· Kaduna State Environmental Protection Agency
· Rivers State Environmental Protection Agency Law
· Anambra State Environmental Protection Agency Law
· Enugu State Environmental Protection Agency Law
· Abuja Environmental Protection Agency Law
· Imo State Environmental Protection Agency Law
· Abia State Environmental Protection Law
· Bauchi State Environmental Sanitation Authority Law
· Benue State Environmental Sanitation Authority (BENSESA) Law
Water Pollution
Industries and facilities generating waste must obtain a permit for discharge of effluents beyond the permissible limit into surface or underground waters.
The NESREA Act, EGASPIN and the Harmful Waste (Special Criminal Provision) Act prohibit discharge in harmful quantities of any hazardous substance into any of Nigeria’s territorial waters, contiguous zones, exclusive economic zone and inland waterways.
According to the Water Resources Act 1993, the minster in charge of water resources can prohibit or regulate any activities on land or water likely to interfere with the quantity or quality of any water in any watercourse or groundwater.
A polluter can also be liable to pay damages and compensation to a third party where polluting activities cause damage to underground water.
Non-compliances with the regulations can incur criminal sanctions. It is illegal to discharge any hazardous waste into water resources and any individual found guilty can, on conviction, be sentenced to life imprisonment (Harmful Waste (Special Criminal Provision) Act).
Contaminated land
The NESREA Act prohibits the discharge, in harmful quantities, of any hazardous substance on any land, except where the discharge is permitted or authorized by law.
No industry or facility can release hazardous or toxic substances on any land beyond limits approved by NESREA (NEP (Pollution Abatement in Industries and Facilities Generating Waste) Regulations).
The Environmental Guidelines and Standards for the Petroleum Industry in Nigeria (EGASPIN) impose obligations on operators in the industry in relation to managing and remediating contaminated land.
If the contamination is from the specific breach of an environmental permit, a regulator may direct clean-up of the contaminated land. Investigation of contaminated land is at the discretion of the waste generator or regulator.
A polluter can be required to restore, remedy or clean up the affected area to tis original state, or to such standards as prescribed by the regulator.
Liability can however be avoided where the owner/occupier can establish, with proof that the contamination was caused solely by one of the following:
· An act of God
· An act of war
· A natural disaster
· The sabotage of a third party.
Major environmental regulatory bodies in Nigeria
|
Regulatory Agency |
Main Responsibility |
Website |
|
The Federal Ministry of Environment |
Major regulator of the environment in Nigeria across all sectors. | |
|
National Environmental Standards and Regulations Enforcement Agency (NESREA) |
NESREA is responsible for enforcing environmental standards for all sectors, except the petroleum sector. | |
|
Department of Petroleum Resources (DPR) |
The DPR sets guidelines and standards for the petroleum industry. | |
|
National Oil Spill Detection and Response Agency (NOSDRA) |
NOSDRA is responsible for co-ordinating and implementing the National Oil Spill Contingency Plan and establishing the mechanism to monitor and assist, or where necessary, directing the response. | |
|
State Environmental Protection Agencies |
Major regulator of the environment in respective states. |
Various |
3.4 Environmental legislation compliance in organizations
Any organization, which fails to comply with relevant legal and regulatory requirements, exposed itself to criminal and civil charges as seen in the previous sections. Perhaps more important to business however, is the damage to the organization’s reputation and the effect that can have on business opportunities. Not many reputable originations internationally want to do business with another organization with a track record of “dirty” environmental practices. Also it is important to organizations that they maintain the confidence of stakeholders including the public and host communities, shareholders, staff and customers.
Despite the importance of regulatory compliance, many organizations still do not meet their legal requirements as a minimum even if it is advisable that organization exceed them. Some reasons for this include:
· Insufficient resources allocation to regulatory compliance
· Lack of understanding of legal requirements
· Over reliance on conformance within a management system that is not closely integrated with legal compliance
· Low priority to compliance management within the organization.
The implementation of ISO 14001 environmental management system (EMS) can potentially help an organization meet its regulatory requirements. However, as will be discussed earlier, some organizations may not be ready to implement a full EMS but still need to meet regulatory requirements, hence the need for compliance thinking as part of an organization’s planning, operations, monitoring and reporting processes.
An organization that wants to achieve good compliance practice will need to:
1. Understand itself and gather relevant information
· The first step here is to identify and understand the environmental aspects and impacts associated with all its activities, products and services. Without a good understanding of environmental aspects and impacts, an organization cannot know what legislations are relevant to the management of its significant impacts. Strategies for the comprehensive identification of environmental aspects and impacts will be discussed under the EMS section.
· After all environmental aspects and impacts of activities, products and services have been identified and documented, organisations then need to gather information on all associated legislations. NESREA and other relevant agencies sell compilations of environmental legislations and this might be a good place to begin.
2. Identify legislation of specific relevance its activities, products and services
· An organization needs to look at the collated legislation and ask which ones are applicable to it. Determinants of applicability might include industry (e.g. both NESREA and DPR issue permits but which one does the organization need?), location (some state laws will apply if an organization does business in particular states) etc.
· After the identification of relevant legislations, specific elements of the legislation that are relevant to an organization’s activities, products and services then need to be identified. This stage is important because it identifies:
· The key issues that need to be addressed
· People responsible for carrying out actions
· The appropriateness of any operating controls in place and whether they meet the regulatory requirement.
As an example, does the organization meet the threshold requirement of a particular law (e.g. EIA Act 1992)?
· The next step is to keep up to date by as much as possible, identifying changes in directives, legislation and regulations and making appropriate preparations for them. For example, oil and gas industries in Nigeria need to be asking themselves what the proposed PIB will have on them when it is eventually passed.
· Clear, accurate documentation of legislative requirements in a legible, accessible format is essential to engage all those involved in legislative compliance. This is often achieved by keeping a legal register. More detail about legal register and examples will be discussed under ISO 14001, however, in general, the following are important in documenting regulatory requirements:
· State which part of the organization, particular legislations refer to
· State how legal requirements relate to each operational unit
· Define the personnel responsible for ensuring legal compliance for each requirement
· Clearly define available operational controls in place to ensure legal compliance
· Clearly define operational limits for processes where relevant. For e.g, does effluent need to be treated to a certain level before disposal?
· Define what information is needed and at what frequency to evaluate and ensure ongoing legal compliance.
3. Evaluate current compliance and implement appropriate controls
· To evaluate current status of compliance, an organization needs to put in place mechanisms that not only maintain compliance but also highlight when compliance has been breached. An internal EMS audit may be useful here but specific conformance audits need to be carried and combining them with significant aspect identification can help to ensure that all potential sources of pollution or resource depletion are adequately covered.
· Finally, appropriate controls need to be determined for the identified significant aspects of the organizations activities, products or services.
It is important to the health of an organization that it continues to operate within the prescribed limits of the law. In addition to the points discussed above, implementing ISO 14001 EMS can help an organization demonstrate consistent and continuing performance to relevant regulators and agencies.