BAD
INFORMATION
OIL SPILL INVESTIGATIONS
IN THE NIGER DELTA
AMNESTY
INTERNATIONAL
Amnesty International Publications
First published in 2013 by
Amnesty International Publications
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© Amnesty International Publications 2013
Index: AFR 44/028/2013
Original Language: English
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AMNESTY
INTERNATIONAL
CONTENTS
Summary 5
Chapter 1: Introduction 10
1.1. The number of oil spills: Onshore operators 10
1.2. Human rights impact of oil pollution 12
1.3. The Oil Spill Investigation Process 14
1.4 The JIV Forms 14
Chapter 2: Flaws in the oil spill investigation system 15
2.1. Investigations - lacking independence and oversight 15
2.2. Establishing the start date of an oil spill 17
2.3. Establishing the cause of an oil spill 19
2.4. Establishing the volume 27
2.5. The impacted area 40
2.6. Community involvement in JIVs 40
2.7. Conclusions on JIV process 43
Chapter 3: The August 2008 Bodo oil spill investigation: multiple problems 45
3.1. Data errors on the August 2008 Bodo oil spill investigation form 45
3.2. Conclusion on Bodo JIV 52
Chapter 4: Oil companies responsibility for sabotage 53
4.1. The case of Shell 53
4.2. The case of Agip 55
4.3. Condition of pipes not disclosed: why not? 56
Chapter 5: Clean up and remediation 59
5.1. Regulatory certification is meaningless 59
5.2 Shell: Redefining clean up? 61
5.3. Remediation - anomalies in the data 62
Conclusions and solutions 64
Recommendations 65
BAD INFORMATION 5
Oil spill investigations in the Niger Delta
SUMMARY
Hundreds of oil spills occur in Nigeria every year, causing significant harm to the
environment, destroying local livelihoods and placing human health at serious risk. 1 These
spills are caused by corrosion, poor maintenance of oil infrastructure, equipment failure,
sabotage and theft of oil. For the last decade oil companies in Nigeria - in particular Shell -
have defended the scale of pollution by claiming that the vast majority of oil spills are caused
by sabotage and theft of oil. 2
There is no legitimate basis for this claim. It relies on the outcome of an oil spill investigation
process - commonly known as the Joint Investigation Visit or J IV process - in which the
companies themselves are the primary investigators. This report exposes several serious
deficiencies and abuses within the J IV process that render it wholly unreliable as a basis for
making claims about the cause of oil spills, the volume of oil spilt or the area impacted.
The report is based on an examination of the J IV process and - critically - of how data are
recorded during the process. It draws on expert analysis obtained from a US pipeline
specialist who reviewed J IV investigation documents and data provided by oil companies and
regulators to researchers in the course of investigations.
The report presents evidence not only of serious and systemic flaws in the oil spill
investigation process, but also specific examples of instances where the cause of an oil spill
appears to have been wrongly attributed to sabotage. The evidence includes a secretly filmed
video of an oil spill investigation. In addition, the report exposes serious problems with how
the volume of oil spilt is assessed and recorded; it is likely that the volume of oil recorded as
spilt in many cases is incorrect.
The human rights impacts are serious - both the cause of a spill and the volume spilt affect
the compensation a community receives. If the spill is recorded as caused by sabotage or
theft, the affected community gets no compensation, regardless of the damage done to their
farms and fisheries. 3 This is based on a provision in Nigeria's oil legislation which Amnesty
International and the Centre for Environment, Human Rights and Development believe needs
to be amended. Oil companies should be held responsible for a spill that is due to sabotage
or theft if the operator has failed to take sufficient measures to prevent tampering with its
infrastructure.
The majority of the report's findings relate to the Shell Petroleum Development Company,
which is the major onshore operator in the Niger Delta. The report acknowledges
improvements in Shell's J IV process since 2011, when the company began to publish J IV
reports on its website. Other companies have yet to do this. 4
However, serious flaws remain within Shell's post-2011 oil spill investigation process. These
include weaknesses in the underlying evidence used to attribute spills to sabotage and the
fact that the J IV reports are filled out by Shell after the joint investigation process - not as
part of the joint investigation process. 5 There is, consequently, a lack of transparency and
oversight in terms of what is recorded on the new J IV reports.
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The report also reviews Shell's pre-2011 J IV process. Although Shell has made some
improvements in its process since 2011, findings related to the pre-2011 process are
important for two reasons: firstly, numerous pre-201 1 oil spills are the subject of ongoing
disputes between Shell and communities over the data recorded on J I Vs. Secondly, Shell
uses pre-2011 data to make claims to investors and the media about the cause and volume
of oil spilt in the Niger Delta in the last five years. 6
Despite its frequent references to sabotage and theft, Shell has failed to take effective
measures to protect its infrastructure from tampering. 7 Vulnerable infrastructure has been
left exposed to tampering. 8 In addition, evidence has recently emerged to suggest that Shell's
own contractors may be involved in oil theft. 9
The report also makes a number of findings in relation to the Nigerian Agip Oil Company, a
subsidiary of the Italian company, ENI. Although Agip operates over a smaller area than
Shell, there have been almost twice as many spills reported from its operations in recent
years. In 2012, there were a staggering 474 spills from Agip's operations, compared with
207 from Shell. 10 Agip attributes the vast majority of spills to sabotage but provides
absolutely no information to support this allegation. Furthermore, such a high number of
spills, from whatever cause, is indefensible for a responsible operator.
Sabotage and theft of oil are serious problems in the Niger Delta. However, international oil
companies are overstating the case in an effort to deflect attention away from the many oil
spills that are due to corrosion and equipment failure. Moreover, securing oil infrastructure
against such acts is - to a substantial extent - the responsibility of the operator. 11
While many of the issues covered in this report relate to actions and failures of oil
companies, it is clear that the government of Nigeria is failing in its duty to control the oil
industry and prevent environmental damage and human rights abuses. Regulatory oversight
of the oil industry in the Niger Delta is extremely weak. The report confirms what others,
including UN agencies, have found in relation to a lack of capacity and conflicts of interest
affecting the main regulators. It is clear that regulatory certification of the cause of an oil
spill, the volume spilt or the status of oil spill clean ups is not credible.
The report also notes that almost everyone involved in oil spill investigations is male. In
general the oil companies and Nigerian oil regulators only deal with chiefs and other elite
male members of spill-affected communities, reinforcing gender stereotypes and economic
disadvantage in the Niger Delta.
While oil spills are a significant problem in themselves, the impact on human rights is
exacerbated by the failure to clean up and remediate the affected areas properly and swiftly.
The final chapter of the report looks specifically at Shell and the company's claims about
clean, following a damning report by the United Nations Environment Programme in 201 1.
Shell has repeatedly claimed that it cleans up all oil spills, regardless of the cause. The
report questions Shell's statements and data on clean up and remediation. It concludes that
Shell's public claims do not stand up to scrutiny and are inconsistent with existing evidence.
The report concludes that the J IV process lacks credibility and cannot be relied upon to
provide either accurate information on individual spills or as a basis for wider claims about
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Oil spill investigations in the Niger Delta
the proportion of oil spilt due to sabotage, theft, corrosion or any other cause. Based on the
existing evidence corrosion and operational failures remain a significant cause of oil spills,
and more oil has been spilt due to operational failures in the past six years than Shell has
claimed. 12
This report also concludes that data from Shell operations in Nigeria - whether on the cause
of oil spills or the nature of clean up - cannot be the basis for any meaningful assessment of
the company's impacts because of the serious flaws in how the data is compiled. The report
therefore strongly questions how media and investors can rely on Shell's claims about the
company's environmental impacts in Nigeria.
Finally, the report makes recommendations to further improve JIVs and to address past
injustices that have been the result of inadequacies in the J IV process. This includes taking
all feasible steps to ensure oil spill investigations can be independently verified, ensuring
that women are not excluded from the process, and ensuring all members of the affected
communities have full access to all relevant information in an accessible format.
Oil companies have challenged the findings contained in this report and their responses and
reflected in the text.
STRUCTURE OF THE REPORT ^^^^^^^^^H
Chapter 1 looks at the human rights issues at stake.
Chapter 2 examines the oil spill investigation process used by onshore operators.
Chapter 3 focuses on the case study of Bodo, where a massive spill occurred from a Shell pipeline in August
2008. This case study exposes numerous flaws in the oil spill investigation - including serious under-
recording of the spill volume - as well as Shell's failure to clean up the pollution.
Chapter 4 looks at the responsibility of the oil companies for sabotage and theft.
Chapter 5 examines claims made about certification of clean-up and remediation.
ACCUFACTS - OIL PIPELINE EXPERTS
Accufacts, Inc. is a consulting firm that provides oil and gas pipeline expertise for government agencies, the
industry and other parties. It is based in Washington, USA. Richard Kuprewicz, President of Accufacts Inc., is
an engineer and pipeline safety expert who has assessed oil spill plan development, and oil spills and pipeline
failure investigations for various parties.
Accufacts reviewed data for this report and the company's analysis is quoted extensively throughout.
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METHODOLOGY
This report is based on research into the workings of the oil industry conducted by Amnesty
International and the Centre for Environment, Human Rights and Development (CEHRD),
since 2008. In-depth desk and field research on the oil spill investigation process was
undertaken between April and September 2013. This included an Amnesty International
research mission to the Niger Delta in April and May 2013. Over the period of April to
September researchers interviewed:
Community members (all male) who had been involved in or witnessed the Joint
Investigation Visit (J IV) process -interviews took place in April/May 2013 in Rivers and
Bayelsa states.
■ Representatives of local NGOs working on women issues and women groups in oil-
affected communities - interviews took place in April/May 2013 in Rivers and Bayelsa states.
The National Oil Spill Detection and Response Agency, Rivers State Zonal office in Port
Harcourt on 7 May 2013
The Rivers State Ministry of Environment, Port Harcourt on 7 May 2013.
A team from Total Nigeria, including the Managing Director, in Port Harcourt on 9 May
2013.
■ The Managing Director of the Shell Petroleum Development Company of Nigeria Limited,
in Shell's London offices on 7 June 2013.
In addition, researchers put questions in writing to the Nigerian Agip Oil Company (Agip) via
the Milan headquarters of its parent company, ENI, and received a response on 26 June
2013.
Researchers reviewed a number of relevant documents including J IV documents. Only Shell
makes these documents publicly available, and Shell has only done so since 2011. There are
substantial differences between pre-2011 and post-2011 J IV reports. Amnesty International
and CEHRD have obtained pre-2011 forms primarily from community members. The
following documents were reviewed:
■ 11 pre-2011 Shell JIV forms 13
■ 6 NAOC JIV forms from community members and one sent by NAOC
1 Total JIV form given to Amnesty International by Total
■ 536 post-2011 JIVs on Shell's corporate website
■ Environmental Guidelines and Standards for the Petroleum Industry in Nigeria
(EGASPIN)
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As several of the issues under investigation required specialist knowledge Amnesty
International asked US oil pipeline specialist Accufacts to review the following:
Examples of pre-and post-2011 Shell JIVs
Samples of Agip JIVs
■ The responses of all three oil companies and NOSDRA to questions about how the cause
of oil spills and volume are determined.
In advance of publication the relevant findings of this report were shared with Shell, Agip and
Total for comment. Responses were received from all three companies and are reflected in
this report.
The report also draws on expert analysis by Professor Richard Steiner, who has examined oil
spills in the US and Nigeria. In addition, the investigation of individual cases in this report
has been done in collaboration with colleagues from Shareholder Alliance for Corporate
Accountability (SACA), Environmental Rights Action (ERA), Gas Alert for Sustainable
Initiative (GASIN and members of the Nigerian National Coalition on Gas Flaring and Oil
Spills (NACGOND).
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CHAPTER 1: INTRODUCTION
1.1. THE NUMBER OF OIL SPILLS: ONSHORE OPERATORS
Year
Agip on
NOSDRA
database
Shell on
NOSDRA
database
Shell on
Shell's
website
Total E&P
NOSDRA
database
Overal 1
2007
180
171
320*
3
354/503
2008
235
95
210*
3
333/448
2009
258
118
190*
2
378/450
2010
323
188
170*
1
512/494
2011
400
207
207*
1
608
2012
474
207
192*
7
688/673
2013 to end
Sep
471**
138*
138*
Overall
2,341
1,124
1,427
17
Source: National Oil Spill Detection and Response Agency database 14 and figures reported by Shell* and Agip**. The NOSDRA
database lists Joint Investigations done from 2007. Shell's data and NOSDRA's data are not consistent and both figures are given.
See page 12 for further details.
The number and frequency of oil spills in the Niger Delta is staggering. Hundreds of spills
occur every year and this has gone on for decades. The table above shows a substantial
increase in the number of spills occurring in the last five years. It should be noted that all oil
spill reporting in Nigeria is likely to suffer from limitations and (as will be noted below) the
NOSDRA data may not reflect all oil spills. Shell has reported different figures.
The spills recorded are for the three main operators on land in Nigeria - all of which are
subsidiaries of European oil multi-nationals:
■ The Shell Petroleum Development Company is a subsidiary of the Anglo-Dutch oil giant,
Royal Dutch Shell;
■ Total Nigeria is a subsidiary of the French company, Total;
The Nigerian Agip Oil Company is a subsidiary of the Italian company, Eni.
The most dramatic increase in spills is recorded for Agip, where the number of spills has
more than doubled in five years. Amnesty International shared the NOSDRA data with Agip
and the company, in responding to Amnesty International's information, did not dispute the
number of spills. Agip's operations in the Niger Delta are significantly smaller than Shell's.
Agip attributes almost all of these spills to sabotage and theft - however, as discussed in
detail later in this report, this claim is not credible and even if the spills were due to
sabotage and theft, the fact that Agip is unable to control its operating area is a serious
failure on the part of the company.
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While by far the greatest number of spills overall, and for 2013, is from Agip's operations,
Agip reports lower volumes spilt than Shell. Agip has reported a total of 471 oil spills due to
sabotage and theft between January and the end of September 2013, with the total
estimated quantity of oil spilt being 4,014 barrels. 15 Shell has recorded 141 spills for the
same period (less than half the number reported by Agip), but with total volume spilt of just
over 16,000 barrels. 16 As will be noted later, volume reporting in the Niger Delta is very
unreliable; the different scenarios reflected in Shell and Agip oil spill data merit further
investigation.
The range of spills given for Shell in the table above reflects the fact that Shell's data and
that of NOSDRA do not correspond. However, Shell's own reported data also reflect
differences, as summarised in the table below.
Sources of
information
Number of oil spills from Shell facilities per year, from different
sources
2007
2008
2009
2010
2011
2012
Royal Dutch Shell
Sustainability
reports
249
157
132
144
182
173
Statistics on
Shell's Nigeria web
pages*
320
210
190
170
207
192
NOSDRA
171
95
118
188
207
207
*
NOSDRA's figures appear to be substantially lower for 2007 and 2008. The figures begin to
correlate in 2011. Amnesty International was not able to discover the reason for the
discrepancy; nor is it clear why the figures in Shell Sustainability Reports are different to
those presented on Shell's website.
Far fewer oil spills have occurred in the Total E& P operational area, which is relatively small,
and no Total E&P cases are discussed in this report. However, Total E&P's statements about
how oil spill investigation systems work are reflected.
The report does not cover off-shore oil operations in Nigeria. Nor does it look at national oil
companies operating in the Niger Delta - this issue will be covered in later reports.
Historical data on oil spills by company are not available, except for Shell. Between 1989
and 1994 the company reported an average of 221 spills per year. According to Shell,
during this time period 50 percent of the oil spilt by volume was due to corrosion, 21 percent
due to operational problems and 28 percent due to sabotage. 17 None was attributed to theft
of oil. Today Shell now claims that 75 percent or more of the oil spilt from its facilities in
the Niger Delta is due to sabotage and theft. 18
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Several attempts have been made to estimate the number of spills and volume of oil spilt
onshore and offshore in Nigeria since the oil industry began operations in the late 1950s.
Estimates vary but put the number at over 10,000 spills. 19 Drawing on available data, a
group of independent environmental and oil experts visiting the Niger Delta in 2006 put the
figure for oil spilt, onshore and offshore, at 9 to 13 million barrels of oil over the past 50
years. 20 Many commentators believe both the number and volume of oil spilt is under-
reported.
1.2. HUMAN RIGHTS IMPACT OF OIL POLLUTION 21
In 2001, in relation to a case on the impact of the oil industry in the Ogoniland area of the
Niger Delta, the African Commission on Human and Peoples' Rights stated: "pollution and
environmental degradation to a level humanly unacceptable has made living in Ogoni land a
nightmare." 22 In a landmark decision, the African Commission found Nigeria to be in
violation of a number of rights guaranteed under the African Charter on Human and Peoples'
Rights, and stated that:
"[D]espite its obligation to protect persons against interferences in the enjoyment of their
rights, the Government of Nigeria facilitated the destruction of the Ogoniland. Contrary to its
Charter obligations and despite such internationally established principles, the Nigerian
Government has given the green light to private actors, and the oil Companies in particular,
to devastatingly affect the well-being of the Ogonis. "
African Commission on Human and Peoples' Rights
The decision of the African Commission clearly recognized the link between environmental
destruction and human rights, and the responsibility of the government to protect people
from such damage by non-state actors such as companies. The Commission called on the
government, amongst other things, to protect the environment, health and livelihood of the
people of Ogoniland; to ensure adequate compensation to victims of the human rights
violations; and to undertake a comprehensive clean-up of lands and rivers damaged by oil.
The government has not implemented any of these recommendations.
Similar pollution and environmental degradation is experienced across much of the oil
producing areas of the Niger Delta. 24 This pollution - which has affected the area for
decades - is occurring in a context where the livelihoods, health and access to food and clean
water of hundreds of thousands of people are closely linked to the land and environmental
quality. Oil spills damage both the soil and water system. 25
Women, men and children living in the Niger Delta have to drink, cook with, and wash in
polluted water; they eat fish contaminated with oil and other toxins - if they are lucky enough
to still be able to find fish; the land they use for farming has been contaminated; after oil
spills the air they breathe reeks of oil and gas and other pollutants; they complain of
breathing problems, skin lesions and other health problems, but their concern are not taken
seriously and they have almost no information on the impacts of pollution.
The main human rights impacts that Amnesty International and CEHRD have documented 26
are:
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■ Violations of the right to an adequate standard of living, including the right to food - as a
consequence of the impact of oil-related pollution and environmental damage on agriculture
and fisheries, which are the main sources of food for many people in the Niger Delta.
■ Violations of the right to gain a living through work - also as a consequence of
widespread damage to agriculture and fisheries, because these are also the main sources of
livelihood for many people in the Niger Delta.
Violations of the right to water - which occur when oil spills pollute water used for
drinking and other domestic purposes.
■ Violations of the right to health - which arise from failure to secure the underlying
determinants of health, including a healthy environment, and failure to enforce laws to
protect the environment and prevent pollution.
Failure to ensure access to effective remedy for people whose human rights have been
violated.
These violations and abuses affect people differently; the different impacts on women and
men, children and the elderly, and people with particular vulnerabilities, are rarely identified
or discussed. Research for this report found that women are frequently excluded from all
aspects of post-oil spill processes, and this can leave women in particularly difficult
situations with respect to damage done to their livelihoods.
The abuses and violations are, primarily, the result of the operations of the oil companies and
the almost complete failure of the Nigerian government to regulate the oil industry and
protect the rights of the people of the Niger Delta.
ECOWAS CASE
In July 2009 the Nigerian NGO, Socio-Economic Rights and Accountability Project (SERAP), filed a case against
the Federal Government of Nigeria and six oil companies over alleged violations of human rights associated
with oil pollution in the Niger Delta. The complaint alleged "Violations of the right to an adequate standard of
living, including the right to food, to work, to health, to water, to life and human dignity, to a clean and
healthy environment, and to economic and social development - as a consequence of: the impact of oil-
related pollution and environmental damage on agriculture and fisheries." 27
While the Court declined jurisdiction over the oil companies, the case proceeded against the government. On
17 December 2012, in a groundbreaking judgment, the Court found Nigeria responsible for the abuses of the
oil companies and made clear that the government must hold the companies to account.
The court made several orders —firstly, that the government must take effective measures within the shortest
time to address the issues of oil pollution and devastation in the Niger Delta; secondly, that the government
must take immediate steps to bring perpetrators of the violations in Niger Delta to account; thirdly, that the
government must take effective measures to prevent further occurrence of the violations of the rights. The
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1.3.
THE OIL SPILL INVESTIGATION PROCESS
When an oil spill occurs in the Niger Delta, a joint investigation team should be mobilized to
visit the site. The joint investigation team includes representatives of regulatory agencies, the
oil company, the affected community - almost always men - and the security forces.
Several regulatory agencies participate in the J IV process. They are:
■ The National Oil Spill Detection and Response Agency (NOSDRA); this is a specialised
department of the Federal Ministry of Environment. It was established in 2006 to address oil
spill issues, including implementation of a national oil spill contingency plan, prevention of
future oil spills and remediation of past oil spill damage.
The Department of Petroleum Resources has a broad regulatory remit in relation to the
oil industry, including promotional, but its mandate in relation to oil spills - since the
creation of NOSDRA - is unclear.
Representatives of State Ministries of Environment often participate in J IV processes.
The joint investigation team investigates the cause of the oil spill and is supposed to jointly
agree and sign a report that confirms the cause and includes other key information such as
the volume of oil spilt and the area affected. The process is heavily dependent on the oil
companies: they decide when the investigation will take place; they usually provide transport
to the site of the spill; and they provide technical expertise, which the regulatory bodies lack.
The information recorded on the oil spill investigation form, known as a Joint Investigation
Visit (J IV) report 28 , is extremely important as it is the basis for deciding whether communities
receive compensation for damage to their homes, fields and fisheries. If a spill is found to be
due to sabotage or third party interference then the community gets no compensation from
the oil company, regardless of the damage caused. This is based on a provision in Nigeria's
1990 Oil Pipelines Act, which states:
"The holder of a licence shall pay compensation ...to any person suffering damage (other
than on account of his own default or on account of the malicious act of a third person) as a
consequence of any breakage of or leakage from the pipeline or an ancillary installation, for
any such damage not otherwise made good. " 29
The data recorded on J IV forms about the volume of oil spilt and area affected can also affect
how much compensation people receive, and may affect the extent and quality of clean up. 30
This report looks at both the J IV process and the data captured on J IV forms. Sample forms
are contained in the appendices. The forms record the date on which a spill is believed to
have started, the date of the investigation, the cause of the spill (often with various choices
already printed on the form to be ticked as appropriate), the volume spilt and the area
affected. J IV forms are generally short documents of two pages. In 2011 Shell began to
publish its J IV forms on its website; these forms are longer and more detailed than Shell's
pre-2011 JIV forms.
1.4
THE JIV FORMS
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CHAPTER 2: FLAWS IN THE OIL SPILL
INVESTIGATION SYSTEM
Amnesty International and CEHRD examined the oil spill investigation process. The
organizations looked at the following issues:
■ The extent of regulatory oversight of the J IV process;
How the start date of an oil spill is established- which can be important for
understanding the duration of the spill and for some calculations of volume spilt;
How the cause of the spill is established and recorded;
How the volume of oil spilt is determined and recorded;
■ How the affected area is established and recorded;
The role of the men and women from affected communities in the process.
2.1. INVESTIGATIONS - LACKING INDEPENDENCE AND OVERSIGHT
Oil spill investigations are organized and led by oil company personnel. Despite its title, the
National Oil Spill Detection and Response Agency (NOSDRA) does not initiate oil spill
investigations. It is usually dependent on the company both to take NOSDRA staff to oil spill
sites and to supply technical data about spills.
During an interview with Amnesty International on 7 May 2013 the Director for NOSDRA's
Rivers State office received a text message from the Nigerian Agip Oil Company (Agip)
informing him of a spill. The text message stated when the J IV would take place (a date
several days later) and notified the Director that his staff members should be ready to join
the team at a given time. The Director confirmed that this is the usual procedure for a J IV.
NOSDRA is told when it will be done by the oil companies - either by text or a letter.
JIVs are frequently carried out days - and in some cases weeks - after an oil spill occurs. 31
This is inconsistent with the requirements of Nigerian regulations. According to the
Environmental Guidelines and Standards for the Petroleum Industry in Nigeria clean-up of an
oil spill should commence within 24 hours of the occurrence of the spill. 32 As a J IV
precedes clean-up, it is impossible to comply with the 24 hour deadline when JIVs are
scheduled several days after the spill is reported. Companies usually blame access
restrictions for delays in carrying out investigations and clean up; while access is restricted in
some cases, there is evidence the oil companies claims are not always correct and that delays
are routine. NOSDRA appears to have little control over the timeframe for investigations. This
issue is taken up again in Chapter 4.
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The technical capacity of regulatory bodies is also a matter of concern. In a 2011
environmental assessment of Ogoniland, the United Nations Environment Programme (UNEP)
found:
"Both [the Department of Petroleum Resources] and NOSDRA suffer from a shortage of
senior and experienced staff who understand the oil industry and can exercise effective
technical oversight. The main reason for this is that individuals with technical knowledge in
the field of petroleum engineering or science find substantially more rewarding opportunities
in the oil industry. l33
The research done by Amnesty International and CEHRD for this report also raises questions
about the technical capacity of the regulators. For example, NOSDRA cited a discredited
process for determining the cause of an oil spill - the Zonal Director in Rivers State told
researchers that the location of a hole on a pipeline was a key determinant of cause; yet this
view was not only disputed by an independent expert but by some of the international oil
companies. 34 This issue is covered in greater detail in section 2.3.
Amnesty International and CEHRD found other evidence of weaknesses in the way oil
regulators operate; in one oil spill case a student on work experience (know as industrial
training) was the sole regulatory representative sent by Rivers State Ministry of Environment
for the J IV. 35 In another, the Batan oil spill (see page 20), a regulatory representative
attempts to have the cause of a spill recorded as 'sabotage' despite evidence of equipment
failure. 36
While evidence about regulatory capacity is somewhat anecdotal, it is supported by
assessments made by United Nations agencies and the World Bank 37 , as well as non-
governmental organizations (NGOs). In 2006, the UN Development Programme noted that:
"The oil companies, particularly Shell Petroleum, have operated for over 30 years without
appreciable control or environmental regulation to guide their activities. " 38
United Nations Development Programme, 2006
Most recently, in August 2011, the United Environment Programme (UNEP) concluded that:
Government agencies are at the mercy of oil companies when it comes to conducting site
inspections". 39
United Nations Environment Programme, 2011
The Department of Petroleum Resources has long been considered to suffer from a conflict of
interests. A recent UNEP report stated that:
"There is clearly a conflict of interest in a ministry which, on one hand, has to maximize
revenue by increasing production and, on the other, ensure environmental compliance. " 40
United Nations Environment Programme, 2011
The weakness of the regulatory agencies means that, in effect, the company (which is the
potentially liable party) has substantial control over a process that sets many of the
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parameters for liability. These include the cause of the spill, the volume spilled, the area
affected and the scale and extent of the resulting impact. The company's dominant role in
the investigation process represents a deeply troubling conflict of interest.
2.2. ESTABLISHING THE START DATE OF AN OIL SPILL
Establishing the start date of an oil spill is important in relation to both timely action to
address the spill and calculations about the amount of oil spilt. There are two ways in which
oil companies in the Niger Delta establish a spill has occurred: one is when companies detect
a drop in pressure in the pipelines; the other is physical surveillance by staff or contractors. 41
Over five years of investigating oil spills in the Niger Delta Amnesty International found that
most spills are reported by surveillance contractors who live in the community or by members
of the community. 42
Both of the methods of establishing that a leak is occurring have limitations in terms of how
the start date of a leak is established, and pressure loss in itself would not alert companies to
all leaks.
Shell Nigeria's Managing Director, Mutiu Sunmonu, explained in an interview with Amnesty
International on 7 June 2013, that for "big" spills a drop in pressure [in the pipeline system]
would be noted, and this would alert the company that there was a leak somewhere in the
system. 43 However, he refused to explain how "big" a leak had to be before it was detected
by this system.
Amnesty International asked US firm Accufacts an oil pipeline specialist, for their view.
Accufacts stated: "One of the greatest misconceptions related to remotely identifying a
possible oil release is that such releases will quickly be indicated by pressure loss. There are
many variables related to operation of production flowlines and liquid transmission pipelines
that render pressure loss indication highly unreliable in determining a pipeline release." 44
Accufacts also noted, that "even for high rate rupture releases, depending on the system and
its operation, pressure loss may not occur for quite some time" and that "Surveillance of the
right of way [the land area around pipes and other infrastructure], whether by local/public
contract, or company personnel are most likely to visually identify an oil release before any
other release detection methods." 45
As noted above, surveillance is the method used in the Niger Delta. While surveillance is
more reliable for identifying spills, it can be difficult to establish the start date of some spills
with certainty - it depends on where the spill starts. If the area is very close to a community
it may be noticed immediately and the start date established relatively clearly. However, if
the spill point is not close to a community, or if it is in water or swamp, then a spill can flow
for days before being noticed. 46 Once noticed, there can also be a gap in time before oil
companies are alerted.
NOSDRA admits it is not always possible to know when a spill starts. According to the Rivers
State Zonal Director, a spill can be seen as starting from the time it is noticed, so people
estimate and agree in the field. 47 To a certain extent, establishing the start date of an oil
spill in the Niger Delta therefore relies on information from the community.
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The start date has ramifications for calculation of the volume spilt under some of the
formulas used by oil companies which are based on the rate of a leak over a period of time.
At a major oil spill at Bodo in 2008 (see Chapter 3) there has been a serious dispute about
the date on which the spill started; the community and two separate regulatory agencies give
the start date as 28 August 20 08 48 , while Shell recorded 5 October 2008 on its JIV forms.
Despite repeated queries from Amnesty International and CEHRD, Shell has not provided an
explanation for the start date it recorded. However, the company appears to be using that
date to assert that a much lower volume of oil was spilt at Bodo than other evidence
suggests.
Communities in areas where Agip, a subsidiary of Italian oil company ENI, operate have also
raised concerns about how the start date of a spill is recorded on JIV forms. For example, in a
spill on a flowline at the Osiama field, Bayelsa State, the start date of the spill is given on the
JIV form as 15 June 2010; however, a community representative who was present when the
spill occurred, claims it stared on 10 June. 49 He says "we observed the spill earlier than the
date recorded. The date is when they received the report." In this case the quantity of oil
spilt is given as two barrels at the time of the JIV visit at 16.20 on 16 June 2010. The oil
company cannot have noted a drop in pressure for such a low volume, so the oil spill can only
have been detected by physical surveillance. Amnesty International asked Agip about this
issue but the company did not respond.
SHELL'S UPDATED JIV PROCESSES
In 2011 Shell began publishing its oil spill investigations on its corporate website. Amnesty International
welcomed this move. However, Amnesty International also notes that some systemic challenges, which
compromise the accuracy and transparency of the process, remain.
Firstly, the company still takes the lead in a process that is about investigating - amongst other things - its
own liability. In view of the lack of capacity and independence of the regulators this remains a serious
shortcoming, allowing errors and abuses to occur; this is not a theoretical concern - a review of post-2011
JIVs, described in sections 2.3 and 2.4, reveals problems with specific cases.
Secondly, the forms that Shell puts on its website are not the forms that are completed in and signed in the
field. Shell was initially reluctant to admit this was the case; however, the forms 50 are extremely neat and
include multiple calculations and drawings that would be very difficult to carry out in field conditions in the
Niger Delta. After pressing Shell Nigeria's Managing Director on this issue, he confirmed that there are two
forms, and stated that "the most important data is filled in in the field." 51 The reason for two forms is to
ensure the one put on the website is legible. Amnesty International asked Shell if we could see the JIV forms
that communities sign in the field but Shell refuses to share these forms.
Finally, there is a substantial difference between the data captured in pre-2011 forms and post-2011 forms.
The new reports are longer and include considerably more data - for example, numerous GPS coordinates,
detailed drawings and photographs of the leak point. Amnesty International asked Shell about the specific
changes made in the JIV process, and the extent to which they reflect weaknesses in the earlier process. Mr.
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2.3. ESTABLISHING THE CAUSE OF AN OIL SPILL
As discussed earlier, oil spills in the Niger Delta are caused by corrosion, poor maintenance
of oil infrastructure, equipment failure, sabotage and theft of oil. Establishing the cause of an
oil spill has long been the main focus of the J IV process. However, the means by which the
cause of an oil spill is decided during the J IV are deeply flawed. This section examines the
approaches of the different oil companies to establishing the cause of a spill, considering
both what companies claim they do, and what is seen on J IV forms. It includes information
on specific cases in which the cause of an oil spill has been misstated.
CALLING OPERATIONAL SPILLS SABOTAGE
In 2009 Amnesty International raised questions with Shell about the practice of changing the
cause of an oil spill from 'operational' to 'sabotage' after an oil spill investigation had
occurred, where this was done without any supporting evidence and outside of any recognised
process. Amnesty International's concerns were based both on a specific case -the Batan oil
spill, described below - and the finding in a court case.
CASE 1 : THE BATAN OIL SPILL, 2002
On 20 October 2002 an oil spill from an underground pipe occurred at Batan in Delta State. On 23 October,
Shell wrote to the Governor of Delta State informing him that the oil spill was caused by sabotage. This letter
was dated two days More the joint investigation visit took place. Moreover, it named seven people as the
likely culprits. On 25 October - five days after the spill began - a joint investigation team arrived at the site.
The team included armed police and army officers, representatives of the DPR and of Shell, as well as
members of the community. The team also included a professional diver, as the pipe was 12 feet under water.
A member of the community captured the investigation on video. Although the diver found that bolts and nuts
of the pipeline were loose and the cause of the spill, in the video a Shell representative (apparently leader of
the investigation team) is heard trying to persuade the other members of the investigation team not to write
the cause of the spill on the investigation form. This position appears to be supported by the representative of
the DPR. However, eventually the spill was recorded as "equipment failure" and the joint investigation team
members signed the investigation report.
The following day, 26 October 2002, the Batan community received a message from Shell stating:
Our representatives have narrated to us the gruesome ordeal, duress and manhandling to which they were
subjected by people of your community, including some members of its executive committee, in the process of
carrying out the Joint Investigation and writing the Joint Investigation Report. . . Consequently, Shell hereby
repudiates the purported Joint Investigation Report ...in which our representatives were coerced into taking
the cause of the incident as being production equipment failure, instead of an act of third party interference,
sabotage, which it clearly was. The inspection report of the diver who inspected the leak point leaves no
reasonable person in doubt that the leakage occurred due to unauthorized tampering, by unknown persons,
with two nuts and bolts on the flange of the manifold. In fact, we have reasonable ground to suspect that
some members of your community might be the culprits, and this suspicion has been reported to the
appropriate authorities for the necessary action. We trust that you will prevail on the members of your
community to respect the rule of law in order to prevent further strains on our usually cordial relationship.
Letter from Shell to Batan Community. 53
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The allegations made by Shell in this letter are contrary to the video evidence of the event, which includes
footage of the armed public security personnel guarding the Shell representatives.
The community passed the video of the oil spill investigation to a local organisation, the Centre for Social and
Corporate Responsibility (CSCR) which took up the case with SPDC. CSCR's investigation and follow-up on the
Batan case highlights the level of control that Shell has over the joint investigation process. Even though the
community was able to insist on the cause of the spill being designated as production equipment failure, Shell
later denied this. In subsequent meetings with CSCR, Shell staff provided confusing and sometimes
contradictory information on the equipment and the nature of the problem, but continued to insist that the
nuts and bolts had been tampered with, providing no evidence other than their own interpretation of the
investigation. Even when a CSCR expert pointed out that a faulty gasket could cause the nuts and bolts to
come loose, and that the gasket was indeed faulty at the point of the Batan leak (according to a work order the
gasket was replaced), Shell continued to maintain the spill was caused by sabotage.
Shell subsequently offered the community a development package worth approximately US$100,000, without
conceding that the spill was due to production equipment failure. The community accepted this deal. 54
Amnesty International passed the video footage of the Batan oil spill to Shell to ask for their comments on the
events recorded. Shell declined to provide any comment. Amnesty International also asked Shell to comment
on the naming of seven individuals, and on what evidence they based the allegations in the letter to the
authorities. Shell has never responded to these questions. As far as Amnesty International could discover, the
The Batan oil spill is not the only one in which Shell characterized the cause of a spill as
sabotage despite evidence that equipment failure or human error was to blame. According to
G.J. Frynas, who has studied and written extensively on oil litigation in Nigeria, "There are
indeed strong indications that oil companies in Nigeria have used false claims of sabotage to
avoid compensation payments..." 55 Court actions in Nigeria such as Shell v Isaiah (1997)
have reached similar conclusions.
CASE 2: COURT ACTION - SHELL V ISAIAH, 1 997
In this case, the plaintiffs went to court seeking compensation because, during a repair operation on a Shell
pipe, which was dented when a tree fell on it, oil leaked on to farmland and into fishponds. Shell claimed the
leak was caused by sabotage. The Appeal Court judge stated: "The issue of sabotage raised by the defendant
is neither here nor there... I am, having regard to the facts and circumstances of this case, convinced that the
defence of sabotage was an afterthought. The three defence witnesses were agreed on one thing, that is that
an old tree fell on and dented the shell pipe... How could this have metamorphosed into an act of cutting the
pipe by an unknown person? What is more, there is no evidence whatsoever in proof that the pipeline was 'cut
COMPANIES ESTABLISH THE CAUSE AFTER THE JOINT INVESTIGATION
In addition to evidence that oil companies have changed the officially recorded cause of an
oil spill after the investigation, there are also cases where companies determined the cause
after the J IV investigation, and without oversight. In some cases, for reasons that are not
always clear, the cause is not or cannot be determined in the field, but is established later by
the company. Amnesty International has not found any case where the regulators do post-JIV
investigations.
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For example, Amnesty International reviewed the J IV form for an oil spill at Ikarama in
Bayelsa State in 2007. Although the J IV report states that a leaking valve was the cause of
the oil spill, the report also states that the "cause of the spill will be established in Shell
office". Amnesty International asked Shell to explain what process was used in their office to
complete this investigation. No answer was received.
While there may be legitimate reasons why the cause cannot be determined in the field, the
fact that it is the company that carries out further investigation is deeply problematic. The
outcome of such processes cannot be considered credible in light of evidence of other bad
practice by oil companies, in relation to oil spill investigations such as Batan.
SYSTEMIC PROBLEMS WITH ESTABLISHING THE CAUSE
The cases referred to above could be dismissed as isolated examples. However, an
investigation into the process by which the cause of an oil spill is determined reveal systemic
flaws that leave the system open to abuse.
In 2013, Amnesty International asked the main oil companies and NOSDRA how they
determine the cause of an oil spill. The answers are given below.
According to NOSDRA's Zonal Director in Port Harcourt, the cause of a spill is determined by
brainstorming and by such diagnostic tools as the location of the hole or leak point on the
pipe. The Director stated that: "if spills are at 12 o'clock it is sabotage, it is almost always
sabotage. Even at nine, ten, eleven or three, two or one o'clock, it is mostly sabotage, but if
it is 6 o'clock it is corrosion." 57 The Director explained that the reason corrosion occurs at
the bottom of the pipe (6 o'clock) is because there is a mixture of water and oil in the oil
pipes; water is at the bottom and crude on top, and because there is sand in the water the
bottom of the pipe is more likely to corrode.
Responding to the same question Agip stated:
"The cause of spill is confirmed through visual observation, Ultrasonic Thickness
Measurements (UTM) results and evaluation of the circumstances surrounding the spill.
Visual observation involves an inspection of the nature of the aperture, hole or breach. From
such inspection, it is possible to determine whether a spill is due to hacksaw cut, drilled hole
(which will give a consistent/regular circular appearance), corrosion (which shows pitting and
irregularity at the edges of the aperture) or use of explosive devises (which shows
indentations and gashes on the facility). UTM provides results on the thickness of the pipe
which enables you to determine whether the thickness of the pipe is still within the corrosion
allowance as specified for the pipeline.
For equipment failure, it is possible to determine impairment in the integrity of concerned
facility, for instance a pin hole in the welded joint of a choke box or failure of seal in a
clamp. Spill incidents caused by oil theft for instance are verified from the observation of the
valves installed for the oil theft activity. The outcome of these findings is discussed among
the members of the J IV team and a decision is reached to confirm the findings." 58
Both Shell and Total stated that the cause of an oil spill is established using visual indicators
including the nature of the hole/leak point and whether there has been prior disturbance of
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soil or, as Total mentioned, evidence of acid spilled on the soil to seep in and erode the
pipes. 59 Shell also told us that when there is a dispute Shell can take the piece of pipe away
and do forensic tests on it. However, we could not find out if this actually happens in
practice.
Amnesty International asked Accufacts to review these responses, as well as a number of J IV
forms, including pre- and post-2011 JIVs, and to provide an assessment on the way cause is
determined on JIVs. On most J IV forms the cause of an oil spill is recorded by ticking a pre-
set list of options - most of which are based on visual observation of the affected part of the
oil pipe or wellhead and the surrounding area. Newer JIVs include drawings, photographs
and - often - additional observations made in writing.
PRE-2011 JIVS: NO VERIFIABLE INFORMATION
Accufacts noted that the most common method of cause determination was visual inspection
of the site. However, on many of the pre-201 1 J IV forms that Amnesty International has seen
and shared with Accufacts there is little or no data on what was visually observed at the spill
site. On several J IV forms a cause is simply stated with no other information given. 60 No
photographs are provided. The failure to provide photographs is significant - as photographs
of the spill point would be the most reliable data on the cause of a spill. The oil companies
do take photographs when conducting JIVs but none of the companies makes these public
(Shell has done so since 2011 but refuses to do so for pre-201 1 JIVs). Consequently the
cause stated on a J IV report can rarely be interrogated or verified independently. As noted
previously, the fact that regulatory bodies are present at the investigation does not mean
there is independent assessment of the cause of an oil spill.
For years communities in the Niger Delta, supported by local environmental groups, have
alleged that oil companies blame oil spills on sabotage when the caused is corrosion or
operational failure. Such claims are generally ignored, passed off by oil companies as
communities seeking compensation. However, as the cases referenced above demonstrate
community concerns have been shown to have some basis. The failure of oil companies to
provide - or to disclose - the most basic evidence of the cause of an oil spill completely
undermines the J IV process.
Despite the fact that pre-201 1 J IV forms give limited or no basis for the recorded cause of an
oil spill, these forms have been used to deny communities a remedy. Several communities
continue to try to challenge oil companies' claims but there is no process of appeal, no
means for any independent party to check the facts and no obligation for the companies to
back up their claims.
POST-2011 SHELL JIVS: MISDIAGNOSES AND LACK OF EVIDENCE
Since 2011 Shell has published photographs for all JIVs, although the company refuses to
provide pictures for spills prior to 2011 even though these exist. Accufacts reviewed more
than 40 of these records. While some photographs did allow for verification of the cause of
the spill, others did not.
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Accufacts noted: "There are numerous photos from Shell's website that do not permit a
close-up review of the actual failure site to permit an independent forensic analysis. [This
is] very odd, as such clear photo evidence would protect the pipeline operator from spurious
claims. When photos are provided too many appear to have been taken with the objective of
not being used as forensic evidence in lAccuf act's] opinion. " 61
In addition, Accufacts noted some cases where the photograph evidence did not appear to
support the claim of sabotage. For example, an oil spill took place on the Trans Niger
Pipeline (TNP) at Mogho on 5 May 2012. The J IV was done on 6 May and concluded the
cause was sabotage due to a hacksaw cut. 62 Accufacts reviewed the J IV report and the
associated photographic evidence (above) on Shell's website, and noted: "[the] close-up
photo on 24" TNP does not indicate hacksaw cut, more likely weld seam or crack leak failure
such as at a weld. The photo does not appear to show a straight cut that would more likely
be indicative of a claimed hacksaw cut. More likely the poor photo suggests some form of
pipeline failure from cracking." 63 Accufacts also noted that the "photo does not sync with
drawings in J IV report." Amnesty International asked Shell to comment on this. The
company did not respond.
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In another case, a spill occurred at Ikarama in Bayelsa state on 24 May 2013. The J IV,
which took place on 30 May, six days later, found the spill was due to a hacksaw cut. 64
However, the photograph (reproduced above) does not show a hacksaw cut. According to
Accufacts: "Most likely this photo suggests that the seal on a previous clamp repair has
failed for various reasons, such as poor installation." 65
While some of the spills attributed to sabotage appear to have been wrongly classified, in
other cases the photographs do not allow for reliable verification of any cause. For example,
the photographs taken during a J IV at Rumuekpe on 12 July 2013 states that the spill, which
apparently stared on 9 July, was due to a 25 mm drill hole at the top of the pipe. However,
the close up photographs, reproduced below, do not show a drill hole. They show a spurting
leak point covered in mud, and then a cleaned-up segment of pipe with a wooden plug.
Accufacts commented that the plugged hole did not appear to be a drill hole. Amnesty
International asked Shell to explain why the drill hole was not photographed clearly. The
company did not respond.
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Shell's publication of photographs of oil spill sites is a positive development, and one which
other companies should follow. However, the recording of information remains problematic in
some cases.
PROBLEMS WITH OTHER METHODOLOGIES FOR ESTABLISHING CAUSE
While visual inspection of the oil spill site and leak point is the main method of establishing
the cause of an oil spill, both the oil companies and NOSDRA referred to other diagnostic
tools. Accufacts noted limitations with some of the other methods which the companies
referred to:
"For example, ultrasonic readings (UT) measurements do not eliminate the failure of a
pipeline from corrosion such as pitting that is more likely to be missed from UT readings.
How and where the UT measurements are taken can cause UT measurements to miss even
general corrosion.
The shape of a "hole" can also be misevaluated, though the shape is important to report.
Accufacts' extensive pipeline experience would verify that a round hole observation does not
eliminate corrosion as a possible failure cause, as certain types of corrosion can and often
represent themselves as round hole releases (e.g., pitting). Pitting corrosion is a special form
of selective corrosion that is harder to determine than general corrosion wall loss." 66
Amnesty International shared this view with Agip who clarified that: "The UT measurements
are only meant to exclude those corrosion mechanisms (i.e.: extended internal corrosion) not
assessable by visual inspection." 67
Accufacts was particularly concerned by NOSDRA's suggestion that the o'clock position was
a useful diagnostic methodology.
". . . the location of a failure on a pipe does not eliminate other possible causes currently being
used to subjectively determine failure causes on the J IV Report. Cause determinations
relying on o'clock position on a pipeline represents very poor science. " 68
This view was supported by Total, who rejected the o'clock position as a diagnostic
indicator 69 and by data on Shell's website, where several oil spills are attributed to sabotage
at the 6 o'clock position and conversely numerous corrosion spills are recorded as having
occurred at the 12 o'clock position.
However, Amnesty International and CEHRD are concerned that the o'clock position
influences the J IV process in the field. In June 2012, the organizations questioned Shell
when statements were made during a J IV processes at Bodo in Rivers State (see Case 3,
below) that the oil spill was sabotage because the hole was at 12 o'clock.
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CASE 3: BODO OIL SPILL, JUNE 2012
On or close to 21 June 2012 an oil spill was discovered in the Bodo creek area of the Niger Delta. The pipeline
at Bodo is the responsibility of Shell. The joint investigation was initiated on 30 June. Local people observing
the J IV became concerned when the regulators and Shell stated that the spill was probably due to sabotage
because the hole in the pipe was at the 12 o'clock position. 70
The J IV continued on 3 July and Shell told the community to bring an expert who could assess whether the pipe
was corroded. The community asked an engineer, Osita Kenneth, to accompany them to the site. He requested
further information from Shell, but said that, based on his experience gained over more than 10 years in the
pipeline industry, there was evidence of a corrosion failure. 71
As the J IV was proceeding people took photographs of the affected area of the pipe (see below). Amnesty
International shared the photographs with Accufacts, who also saw evidence of corrosion. Accufacts stated:
"This is apparently due to external corrosion. Notice the layered loss of metal on the outside of the pipe around
the "stick" from pipe wall loss (thinning) due to external corrosion. It is a very familiar pattern that we have
seen many times on other pipelines." 72
Amnesty International immediately sent this assessment to Shell. The company stated that it had not claimed
that the cause of the spill was sabotage and the joint investigation had not been completed. 73 However, Shell
could not explain the statements made to the community that the cause appeared to be sabotage because of
the position of the hole in the pipe at "12 o clock". Nor was Shell willing to make any comment about the
visible corrosion of the pipe. 74
Instead Shell told Amnesty International that they would take the affected length of pipe to a Shell facility for
testing. The community - as well as Amnesty International and CEHRD - expressed concern that this process,
which would be under the control of Shell, would not be transparent. Responding to these concerns Shell
stated: "SPDC has and will continue to involve the community throughout the joint investigation process as is
standard practise, and hopes to satisfactorily conclude the process in a timely way." 75
As of September 2013 - more than one year after the leak - Shell had yet to remove the affected area of the
pipe and the J IV was not complete. Shell explained the delay to Amnesty International saying that the work
"requires specialist support as the line at Bodo is at a low point, and long lead times are needed to do this
work in such a way as to prevent any further spill during the cut-out." 76
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In cases of sabotage, oil companies often claim that there are signs of prior excavation of the area
(suggesting that someone has tampered with the pipe). Video footage, which clearly shows the pipe had to be
excavated by Shell using a mechanical shovel, does not appear to show any signs of prior excavation.
This is the only occasion where Amnesty International and CEHRD have been able to intervene in a J IV as it
was occurring. There was evidence of bad practice - citing the o'clock position as verification of sabotage.
The two organizations were able to secure expert input to the process, which may have prevented the cause
being recorded as 'sabotage'. This is, as far as Amnesty International could discover, the only J IV that has
remained incomplete for such a long period.
This case underscores both the weaknesses in the field process and the lack of capacity of the regulators to
follow up on the JIV; the process is dependent on the oil companies despite the clear conflict of interest. In this
case, evidence that would point to a corrosion failure has been ignored and Shell appears to have complete
control over the investigation process and the timeline for completion.
CONCLUSION ON CAUSE OF OIL SPILLS
It is in the interest of oil companies like Shell to have oil spills attributed to sabotage and
theft - not only do they not have to pay compensation, they can deflect attention away from
the condition of their pipes and infrastructure and, as they have done extensively in the past
five years, use sabotage to deflect criticism from shareholders and the media. Given the way
Shell in particular has referenced sabotage in response to criticism of its environmental
impact in Nigeria, there should be far greater scrutiny of the basis on which Shell makes
these claims and the implication of inaccurate reporting.
Shell's more recent transparency around the investigative process is welcome but there
appears to ongoing problems with how sabotage is evidenced. In a context where regulators
have limited capacity, the system remains open to abuse, and there is evidence that it has
been abused.
In relation to the way cause is established during the JIV process, Accufacts concluded that:
"The JIV reports do not provide sufficient information to verify or properly support the
indicated determination of cause. Preconceptions (such as evidence of loose soil at the
release site, location of the pipe failure site - top of pipe is sabotage, while bottom of pipe is
corrosion, or hole appearance) introduce prejudiced and highly probable false conclusions as
to the real cause of the pipe's failure. Based on an Accufacts review of photographic
evidence of some of the claimed Niger Delta pipe failures, cause determinations based on the
information entered on current JIV reports can be very subjective, misleading, and downright
false. " 7J
2.4. ESTABLISHING THE VOLUME
Accurate measurement of the volume of oil spilt is important for two reasons: firstly, it can
affect assessment of damage done and therefore compensation people receive and the nature
of the clean up undertaken; secondly, it is the basis for the overall figures that companies
put into the public domain on volume of oil spilt due to operational failures versus sabotage
and theft.
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During the J IV process at oil spill sites the volume of oil spilt is recorded. According to
almost all sources interviewed the method used to calculate volume involves a visual
estimation of the area over which oil has spread multiplied by the depth of the spill, with
some consideration of issues such as the porosity of the soil.
In an interview with the Rivers State Zonal Director of NOSDRA in May 2013, he confirmed
that the volume is established by "estimation". 78 He said that the J IV team do not use
equipment, but do sometimes use a rod to dip in water to test the depth of the oil. This
approach (using a rod to gauge depth of oil) is not used on land, he said, "as land is
uneven". However, several individuals who had seen or participated in J IV processes said
they had seen oil company personnel and regulators dip a stick or a finger in oil spilt on land
and that this appeared to be the basis for estimating depth. 79
In June 2013, Amnesty International asked the Managing Director of Shell how the volume of
oil spilt was calculated. He explained that establishing volume is about the size of leak point
and the pressure of oil flowing through the [pipeline (oil per minute or second). 80 However,
Amnesty International noted that this methodology is not used in the field. Therefore it is not
the basis for whatever figure is recorded on JIVs and signed by the regulator and community.
When Amnesty International pressed Shell on this issue, the company confirmed that this
method was used after field investigations. Amnesty International has asked Shell: If the
volume is calculated in this way (size of leak point x pressure in pipeline x duration of spill)
then what is the relationship between this figure and the one recorded in the field? Based on
Shell's J IV forms, the field calculation would appear to be an assessment of area x depth.
Shell did not provide any clear explanation of the status of the figure obtained using the
calculation method its Managing Director in Nigeria claimed was the method Shell uses to
calculate volume of oil spilt.
Agip and Total confirmed that their approach to calculating oil spill volume in the field was
based on the surface area spread of oil multiplied by depth, with assumptions regarding
porosity of soil and oil on water.
All three companies noted that this method provided an estimate only, and was not exact.
Agip stated "In any case, the estimated volume is agreed among the J IV team members." 81
However, Total went on to explain that the volume estimated in the field is updated with a
more technical detailed value in a report known as a "Form B". There is no mention of Form
B or an alternative method for establishing volume spilt on the J IV reports. Form B is not
shared with the communities. This issue is addressed in more detail below.
There are other serious challenges with the volume data recorded on the J IV forms,
particularly those that are pre-2011. These include the following:
JIV forms without basic data: Despite the explanations given by the oil companies, several
pre-2011 JIV forms seen by Amnesty International did not include data on area, depth or soil
porosity - they merely give a total amount of oil spilt, which is not explained. In some cases
no volume is recorded and no explanation for non-recording is provided.
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For example, in 2009, the community at Edagberi (also known as Joinkrama 4 or JK4) was
asked to sign a J IV form on which most of the data was not filled in. Amnesty International
has obtained the J IV form which shows that key data had not been recorded. The volume of
oil spilt is recorded but none of the data for the calculation has been completed.
The absence of basic data used to calculate the amount spilt raises questions about exact
processes in the field and the extent to which regulators and community representatives are
aware of and can challenge what is written down. In some cases the "Quantity Spilled" field
is not filled in, but the J IV is signed by regulators. 82 For community members involved in
JIVs the focus of the process is often the cause of the spill, which people know affects
whether they get any compensation. As far as Amnesty International and CEHRD could
discover, community representatives may not pay attention to other information recorded on
the form, not realising the importance of the volume data. The regulators should be fully
aware of the importance of completing all data fields, yet regulators have signed off on JIVs
with missing data.
No disclaimer about estimate: Some of the forms, depending on the company, indicate the
spilled oil determination is a preliminary estimate. In other J IV Reports reviewed, no such
important disclaimer is provided and this lack of clarity can lead to much confusion,
especially if there is disagreement or if litigation is pursued as the J IV Report is often cited
as evidence.
No measurement of oil that moves downstream: There appears to be no means of establishing
- during the J IV field visit - the volume of oil that may have moved far downstream of the
original spill. This is a very important issue in the Niger Delta, given the number of creeks,
streams and rivers affected by oil spills.
Overall limitations of field observation: According to Accufacts, based on a review of JIVs and
company responses:
"Estimating the amount of oil spilled from a pipeline from field observations utilizing surface
area methods can be very poor at accurately arriving at a true final number for oil actually
released because of such factors as: 1) evaporation effects, 2) migration (both surface and
subsurface), as well as 3) errors/uncertainties in measurement/assumption. Surface area
approaches might be adequate for small rate (small hole/opening or crack releases of a short
duration) affecting a small area, but will most likely significantly underestimate oil released
for larger opening/much higher rate, longer duration releases, especially pipeline ruptures
over a widely dispersed area. 83 Accufacts' experience would indicate that, especially for large
oil spills, such as those associated with pipeline ruptures, the surface area approach can
seriously underestimate the volume of oil spilled. Surface area approaches can particularly
miscalculate spilled quantity if local environments can permit the rapid migration of oil in
land (hills) or water (such as moving water). " 84
The case of a 2008 oil spill at Bodo (described in detail in Chapter 3) underlines the
problem of field estimation in a context where there is no meaningful oversight. In this case
Shell recorded that 1,640 barrels of oil were spilt in total. However, when Accufacts
reviewed a video of the leak, they found that between 1 and 3 barrels of oil were leaking per
minute - this amounted to between 1,440 and 4,320 barrels of oil flooding the Bodo area
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each day. As the spill went on for some time, Accufacts estimate - based on the size of the
leak point and the rate of flow observed in the video - discredits Shell's estimate.
UNDER-RECORDING OF VOLUMES: SHELL
In reviewing JIVs and discussing them with affected communities Amnesty International and
CEHRD found numerous spill volumes that appeared improbably low, in light of other
evidence such as the area affected, the time period of the leak, and community descriptions
of what they witnessed at the time of the leak.
Time 07:38:42 (UTC)
Speed 1.31 kph
For example, Shell recorded an oil spill at Nembe Creek at Kenkiamabogo in Bayelsa state.
The start date of the spill is recorded as 29 August 2012. The J IV was done on 30 August
and 12 and 13 September. The J IV states that the first two attempts to ascertain cause were
inconclusive, and they could not ascertain the impacted area due to high tides (see above
image). When the J IV was completed on 13 September the spill was found to be due to a 40
millimetre corrosion tear. The volume of oil spilt is recorded as one barrel. Accufacts
reviewed the data and found that the recorded release of one barrel of oil from a large
"corrosion tear" failure on a 4 inch flow line was "an unrealistically low volume release
estimate for such a massive failure (40 mm long), raising serious questions as to the
appropriateness of the calculation method performed to estimate oil spill volume for this
release." 85
Amnesty International reviewed 536 J IV records on Shell's website and noted numerous
spills attributed to sabotage and corrosion where the spill volumes were very low - less than
five barrels. Very low volumes for spills recorded as sabotage and corrosion raise questions,
particularly where there is a gap of several days between the reported start date and the date
of the investigation. One question is how the leak was noticed (as such small leaks would not
show up on pressure monitors); another is whether the flow of oil was turned off and the line
de-pressured, and how much could have leaked before this was done.
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Amnesty International asked Accufacts to review a number of Shell JIVs where the volume
recorded as spilt appeared low compared with other data available on the spill.
For example, an oil spill at Ikarama reportedly began on 21 August 201 1. The J IV was
conducted on 27 August. The cause is stated as a hacksaw cut and, according to calculations
given on the J IV, 77 barrels of oil were spilt. The only photograph attached to the J IV is
above. It does not show the wider area affected and therefore provides no clarity on volume.
It does show oil still flowing from the pipe on 27 August, six days after the spill is reported to
have started. Shell later recovered 84 barrels of oil and recalculated the volume at 120
barrels.
In the case above the photograph is inadequate to verify the claim of hacksaw cut, and the
spill volume cannot be verified. In other cases photographs cast doubt on the claims made in
the J IV with respect to volume.
The photograph of an oil spill at Ogale in Rivers State, above, for example is of concern. The
spill reportedly began on 21 November 2011 and the J IV was conducted on 23 November. In
the photograph the oil is seen to be still flowing. Accufacts noted that the reported volume of
6.8 barrels was "unlikely, given spray pattern shown on 6 inch pipe."
A spill at Edagberi Betterland reportedly began on 12 February 2012. The J IV took place on
19 February, seven days later, and was completed on 9 March. According to Shell the initial
J IV on 19 February could not assess the spill point. A conclusive J IV was held on 9 March,
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almost two months later. No explanation is given for the long gap between JIVs. The cause of
the spill is given as corrosion.
A photograph (see below) taken on 9 March shows oil spilling from the site. According to
Shell the initial clean up was completed on 14 March and site remediation was completed by
August 2012. Amnesty International and CEHRD question how a leak so small as to result in
0.3 barrels of oil spilt was detected, why oil was leaking two months later and, if the spill was
so small, why it required remediation. Accufacts reviewed the data and concluded that the
reported volume released from a 12 inch pipeline rupture was "most unlikely" to be accurate
as such large opening failures release oil at substantially higher flow rates, much greater that
smaller hole leaks. Accufacts noted that it is "More likely a 95 cm manufacturing seam
rupture on 12-inch because of the flow pattern at the release site. The volume of oil spilt is
reported as just 0.3 barrels, which is a ridiculously low spill volume, given the length of the
pipe split, and its photographed flow pattern on a 12 inch pipeline."
An operational spill at Egbema in Imo state is reported to have started on 14 September
2012. A J IV was attempted on 20 September, six days later but community members
prevent the assessment, demanding compensation for past spills. The J IV was conducted on
29 September. The photographs, taken by Shell on 29 September (see below), show that oil
is leaking from the site at two weeks after the spill is believed to have started. The volume of
oil spilt is recorded as 155 barrels. Accufacts stated: Photo indicates typical pipe seam weld
failure on 16 inch. 155 barrels reported release is most likely under reported given the flow
pattern of the release and the high rate of release usually associated with such much larger
opening seam failures.
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Another spill took place at Ikarama on 24 May 2013. The J IV was done six days later on 30
May. Again, photos taken at the time show oil still flowing from the leak point on the date
the J IV was conducted (see photo on page 25). The cause of the spill was given as sabotage
because a hacksaw cut was seen on the pipe. The volume was given as 10 barrels. Accufacts
reviewed the photographs and found that the photo did not indicate a hacksaw cut. In
addition, based on the photographic evidence of the flow release, the volume of 10 barrels
reported as spilt is understated given the size of the opening and the expected pressure of
the pipeline at the time of failure.
CASE 4: 2004 JIV FOR G0l 8B
In September 2004, a leak occurred along the Trans-Niger pipeline, at a village called Goi. The pipe is the
responsibility of Shell.
Oil reportedly spurted into the air from the damaged pipe and flooded the land and creeks. Some of the oil
caught fire causing further damage. As with so many other spills, people lost fishponds and crops. The JIV,
which is just one page long, was conducted on 12 and 13 October. It found the spill was due to sabotage. This
JIV report was the basis of Shell's defence in a court action in the Netherlands, which concluded in January
2013 in defeat for the Nigerian farmer who brought the case with support from Friends of the Earth. The case
is under appeal. 87
The reliance placed on the JIV report in the Dutch court case is a matter of some concern, both in light of the
general weaknesses in pre-2011 JIVs and in light of the weaknesses observable in the specific JIV report itself.
The JIV also concluded that 150 barrels of oil had been spilt; however, there is no explanation of how this
figure was arrived at. Moreover, the JIV states that the spill point was an 18" cut. Descriptions of the spill
however indicate that far more oil was spilt at Goi than recorded on the Shell JIV. No community representative
signed the JIV form. Despite this the JIV form for Goi has been used as part of Shell's defence in a court action
in the Netherlands.
During the court action Shell produced a video of the JIV which the company has not made public. The court
records show that doubt was cast on the claim that the spill was due to sabotage; however, this doubt was
considered insufficient to outweigh the JIV claims. 88 The volume spilt did not receive particular attention
during the case, and no assessment of the volume was made.
UNDER-RECORDING OF VOLUMES: AGIP
During a research visit to Bayelsa state in April/ May 2013, Amnesty International was given
five NAOC JIV reports about which community representatives had questions, including about
the volume recorded. 89 The JIVs are short documents (1 -2 pages) and the volume recorded
as spilt is given as a figure with no explanation as to how the figure was calculated. Amnesty
International shared these with Accufacts, as well as later JIVs provided by Agip. Below is a
summary of Accufacts' assessment of these documents.
NAOC Spill (reported Date of Spill 12 July 2008)
The JIV report is one page long. The location of the spill is identified as on the 14-inch
Ogboinbiki/Tebidaba Pipeline at Ondewari 4. The failure is identified as a structural failure
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at a clamp of a previous repair point. The quantity of oil spilled is recorded as 20 barrels.
The start date of the spill is given as 12 July 2008, ten days prior to the J IV, which took
place on 22 July 2008. No detail is provided as to how the start date or the quantity spilled
was determined. According to the J IV, photographs were taken, but the photographs are not
included with the J IV report reviewed. No mention is made as to whether or when the 14-inch
pipeline may have been shut down or isolated to effect the repair.
Accufacts concludes that, absent additional evidence, 20 barrels appears to be a very low
estimate for the volume spilt given expectations about pipeline pressure, the nature of the
expected clamp failure on a 14-inch pipeline, and the time duration of over a week before
the J IV field investigation. Residual pressure within a pipeline can release oil at very high
rates, even through very small openings, during the time of pipe failure and its ultimate
shutoff and de-inventorying.
NAOC Spill (reported Date of Spill 13 October, 2009) 90
The J IV report is a one-page form signed by various parties on 26 October 2009, the date of
the J IV assessment. The report gives the start date of the spill as 13 October 2009, but
again no reason is given for how this date was established. The location of the spill is on the
14-inch Ogboinbari/ Tebidaba pipeline at Azuzus Kokokorosei. The quantity spilled is
indicated as 100 barrels. No information is provided to support this reported spill volume.
The form goes on to indicate that an irregular hole was observed in the 3 o'clock position.
The cause of the spill is identified as "others" but not specified even though the form calls
for that selection to be specified. The oil spilled off the company's Right of Way and into an
adjoining creek and vegetation. Although the J IV indicates that photographs were taken
during the assessment, these were not included with the J IV Report.
Accufacts concluded that "additional information, such as the size of the hole, the pressure
on the pipeline, and the extended time between the reported date of the spill and the JIV,
lead to the conclusion that the 100 barrel estimate is in all probability too low given
Accufact's investigative experience in dealing with pipeline failures and their release.
NAOC Spill (reported Date of Spill 15 June 2010) 91
The JIV report is a one page form signed by various parties on 16 June 2010. The form
indicates the Date of Spill as 15 June 2010 though no reason is identified for this date
determination. The failure is identified as a pinhole leak at the welded flange joint from
sand erosion on an Osiama ls/s flowline at the Osiama field. The quantity of oil spilled is
identified as two barrels at the time of the visit at 1620 hours on 16 June 2010. No detail
is provided as to how the two barrel spilled quantity was determined.
Without further evidence, such as sufficient photographs, Accufacts places an extremely high
probability that the oil release was much greater than the two barrels indicated on the JIV
form. Given the expected pressures, two barrels of oil can be released in an extremely short
period of time, even for very small openings in a pipeline and/or wellhead. Important
parameters that should be utilized to place a boundary condition on this release volume
would be the approximate wellhead pressure at the flange leak site, the type/gravity of the
crude, and an estimated area of the erosion hole.
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NAOC Spill (reported Date of Incident 26 March 2013) 92
This J IV report is three pages long and apparently a newer form format. This event was
reported as a gaseous emission release occurring on 26 March 2013 on the Taylor Creek 2L
flowline in the Ikarama community that was reported on 26 March 2013, with a J IV date of
27 March 2013. The incident was identified as caused by "Third Party Interference" and
reported as a hacksaw cut about 100 mm long, observed at the 9 - 3 o'clock position on the
flowline. The quantity of oil spilled is identified as nil. Comments indicate that at the time of
the J IV, while there was no crude oil spilled, there was an observed impact of oil stain on
vegetation within the right of way. Accufacts cannot find an operating scenario that would
explain the determination of a "nil" barrel release in a flow line, unless the line was shut
down and de-pressured. Further information is needed both on the line operation/pressure at
the time of the J IV report as well as cited photographs.
NAOC Spill (reported Date of Incident 3 April 2013) 93
This J IV report reflects an expanded three page form format. This event was reported as a
crude oil spill occurring on 3 April 2013 on the 6-inch Taylor Creek 2L flowline in the
Ikarama community reported on 4 April 2013, with a J IV date of 5 April 2013. A surface
area approach has been utilized in this J IV report to determine an estimated quantity spilled
as 25 barrels. The math is incorrect for the numbers indicated, as the spill should have been
calculated as 31 barrels. The report indicates this particular spill on land was caused by
sabotage from a release out of a regular hole geometry at the 9 o'clock position. Additional
description is provided that the release occurred because a shut-in well was reopened by an
unknown person after a J IV of a previous spill (Reference # 2013/LAR/059/114). There are
additional comments that there was evidence of a hacksaw cut on the flow line that is
inconsistent with the visual inspection as indicated under "Type of Incident" on this J IV
Report. It is worth noting that the report mentioned that photographs were taken during the
J IV. Proper photos should easily demonstrate what the failure cause actually was.
Coordinates of the spill point are also indicated.
Depending on the specific cause of the release, a 25-barrel estimate appears to be unusually
low for a spill, even a narrow hacksaw release or a hole, whatever the real cause of pipe
failure. Given the expected pressures even small hole openings can release considerable
volumes of oil over an extended period of time. Further investigation is warranted including
the critical photos, and identification of operating pressure at the release site during the
dates of concern.
Amnesty International shared Accufacts' assessments with Agip who stated: "We do not wish
to respond to the Al oil pipeline specialist statements at this time, however we don't believe
such statements are appropriate." 94
PROBLEMS WITH THE POST-JIV PROCESS FOR CALCULATING VOLUME
Although both Shell and Total told Amnesty International that they used a more technical
approach to calculate the volume of oil spilt, neither company clarified how this data is
recorded.
The fact that oil companies employ a more technical approach to calculate oil spill volumes
raises serious questions about the status of the volume recorded on J IV forms. None of the
communities to whom Amnesty International spoke were aware of another method of
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calculating oil spill volumes. Even when there is a dispute about the volume recorded on a
J IV - such as at Bodo in the case of a spill in August 2008, described in Chapter 3 - oil
companies have not, as far as Amnesty International could discover, presented an updated
figure on a Form B. 95
When Amnesty International asked Total for further information on this issue the company
said: "The spill volume estimate agreed by all parties during the J IV is inputted in Form B,
and submitted to the regulators as statutorily required." 96 This information is not consistent
with the information given by Total during an interview with Amnesty International in Port
Harcourt on 9 May 2013 when the company stated that a more technical calculation was
done and put on Form B. Amnesty International asked Total to explain where the more
technical data to which they had referred were recorded; the company had not responded at
the time of printing.
Total sent Amnesty International a copy of a Form B. The form goes to the Director of the
Department of Petroleum Resouces in Lagos, and not to NOSDRA. The volume is recorded as
"2 bbls based on the J IV report". 97
Agip, responding to Amnesty International queries on the same issue, also stated that the
volume recorded on Form B is "exactly the same quantity determined during the JIV." 98
Shell did not clarify where the more technical calculation of oil volumes was recorded or
reported, although the company made clear it used a different method to the one used during
JIV field investigations.
A critical element of this approach to establishing volume is the duration of the spill. As
noted earlier, the way the start date is established for some oil spills is based on when the
leak is reported rather than when it started. Only Total provided a direct response on how the
duration was established. The company said that in "estimating the duration of an oil spill,
we take the worst-case of scenarios from a review of all available data from process
monitoring, surveillance reports, witness statements and physical assessment of the spill
sites." 99
REBALANCING THE SYSTEM "INVENTORY"
Accufacts also noted that post-JIV volume calculation could involve an effort to determine oil
released by rebalancing the system "inventory" when such measurement detail is available,
once the pipeline system is restored and returned to service after the repair. Amnesty
International asked the oil companies about this approach but none responded. Accufacts
made the following observation on this approach, and why it might not be useful in the Niger
Delta.
"Where balancing may be utilized to measure oil within the system such as tank gauging
and/or metering, such as transmission pipelines or sometimes flowlines, oil released can best
be determined from various methods that attempt to establish the amount of oil to restore the
inventory balance (including adjustments for pumping time corrections) to pre-failure
conditions.
The balance approach should be considered a more technical correction method requiring
much more system information about the specific pipeline's design, tankage, placement,
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operation, and monitoring, than that provided during a JIV field investigation. This rebalance
or oil inventory approach will not work especially well for pipeline systems experiencing large
imbalances over long periods of time, or for more complex network systems. " 10 °
However, "large imbalances over long periods" appears to be a serious issue in Nigeria. A
report by the UK think tank, Chatham House, released in September 2013, looked at large-
scale oil theft in the Niger Delta. It noted:
"To steal oil, thieves tap into pipelines and other infrastructure in the Niger Delta. They then
pump the oil onto waiting barges and boats. . . There are also allegations that oil vanishes
from at least some of the country's roughly two dozen export terminals.
This narrative, while mostly correct, is oversimplified. Lines between legal and illegal
supplies of Nigerian oil can be blurry. The government's system for selling its own oil attracts
many shadowy middlemen, creating a confusing, high-risk marketplace. Nigeria's oil industry
is also one of the world's least transparent in terms of hydrocarbon flows, sales and
associated revenues.
Estimates of how much oil Nigeria loses to thieves vary widely. Fundamentally different
pictures of the trade emerge depending on which figures one accepts. The best available data
suggest that an average of 100,000 barrels per day vanished from facilities on land, in
swamps and in shallow water in the first quarter of 2013. This number does not include what
may happen at export points. It also assumes the integrity of some industry data. Factors that
confuse the issue include poor measurement practices; confusion over how much oil is stolen
as opposed to being spilled, and exported as opposed to being refined" 101
What the Chatham House report makes clear is that a lot of oil leaves the system in the Niger
Delta that is not spilt but stolen, and accurate and transparent measurement of oil within the
system apparently does not exist.
THEFT AND SABOTAGE
Oil companies claim that the majority of oil spilt in the Niger Delta is due to sabotage and theft. These two
terms are often used interchangeably; however, they are two different phenomena and the way they are
referenced can be very misleading.
Sabotage is a phenomenon that has been reported in the Niger Delta since at least the 1990s. In general this
involves damage to pipes or other oil infrastructure in order to cause leaks. In the 1990s, when Shell stated
that 28% of oil spills were due to sabotage 102 , sabotage was seen as a way to extract money from the oil
company, either directly as compensation or in the form of clean-up contracts. In the mid 2000s, certain acts
of sabotage were carried out by militant groups and these could be larger in scale involving explosives. Such
attacks on the pipes have reduced since the government established an amnesty for militants.
Theft of oil is a different phenomenon. Much of the theft reported in the Niger Delta is carried out by organized
groups with the equipment necessary to tap pipes and transport oil on boats to sell outside Nigeria. For
example, Shell claims that: "Most spills are caused by well-organized gangs who illegally tap into the
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from pipelines..." . 104
As Accufacts has noted, the aim of such oil theft operations is not to disrupt the pipeline operation in a
manner that can draw undue attention to the theft. While some oil is undoubtedly spilt during theft operations
- due for example to problems with the way the taps are welded to the pipes - thieves are unlikely to want to
draw the pipeline operator's attention to such illegal activities, and theft of oil does not automatically lead to
spills.
If much of the theft of oil is organized large-scale theft this raises questions about the extent of oil spills
attributed to theft. In the case of Shell, a key question is why the theft-related spills it records have on
average higher recorded volumes of oil spilt than either corrosion or sabotage. A major issue here is volume -
and the extent to which the volume of oil spilt due to various causes (corrosion, sabotage, theft, accidents,
etc) - is accurate. At present, the system for measuring volume appears unlikely to give correct estimates
and is open to abuse.
On 1 November 2013 Shell provided the following response to Amnesty International on this issue: "Your
document states that the Shell joint venture in Nigeria, SPDC, is exaggerating the impacts of crude oil theft
and sabotage so as to distract attention from its operational performance. We firmly reject this
unsubstantiated assertion. The Federal Government of Nigeria, respected think tanks and some NGOs are
increasingly pointing to the scale of theft and its human and financial consequences. Estimates of the
magnitude of criminal activity suggest that it is costing the nation billions of dollars of lost revenue. In
addition to the human and financial consequences, this external environment places understandable strain on
our staff. As we have outlined to you previously, two contractors were killed by armed individuals last year
while inspecting a site for remediation."
Amnesty International has responded to Shell as follows:
The allegations that Shell is exaggerating the impact of theft and sabotage as causes of oil spills, far from
being unsubstantiated, are backed by evidence that the process for deciding on the cause and - critically -
the volume of oil spilt is deeply flawed and results in estimates that are incorrect. In addition, Amnesty
International has presented, on numerous occasions, to Shell the following: video footage of Batan oil spill
during which Shell clearly manipulates the process to record the spill as sabotage; the evidence of serious
under-recording of the volume of oil spilt at Bodo in 2008 when an accurate recording would increase the
operational volume for that year, and would therefore increase the percentage of oil spilt due to operational
problems in 2008; and most recently the evidence provided by Accufacts' review of Shell's post-2011 data.
Shell has provided no data to refute any of these cases.
Amnesty International accepts that theft of oil is a serious problem in Nigeria; addressing it requires much
greater transparency from Shell.
SUMMARY CONCLUSION OF VOLUME
The evidence and analysis above demonstrates that, prior to 2011, the recording of volume
of oil spilt during a J IV process was deeply flawed. Calculations were based on rough
estimates of area and depth which often were not explained. The level of oversight was poor,
and there is evidence that some J IV data was not recorded in the field. Although two
companies referred to more technical methods of calculating the volume of oil spilt, neither
has been able to clarify where these data are recorded and why they are not available for
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comparison with field records. Moreover, the basis for such cannot be assessed because the
parameters are not made public. Individual JIVs that have been reviewed by Accufacts appear
to include improbably low figures for volume spilt.
TURNING OFF THE PIPES: NO TRANSPARENCY
Over the past year Shell has claimed that it turns off oil flow during oil spills, thereby reducing the volume of
oil spilt. According to Shell Nigeria's Managing Director:
"for a big spill it will show on pressure regime. There is an inbuilt shutdown if the pressure is over a particular
threshold. We have a production control centre where this is all logged. The pressure profile will not be
affected by small spills. " m
However, Shell would not clarify how large a spill had to be before the inbuilt shutdown was activated.
Amnesty International asked Shell how long this system has been in force and was told that the system "has
always been in place" but "the threshold for shutdown was tightened" in 2009.
Statements on Shell's website refer to the issue somewhat differently. According to the website:
"SPDC's operators continuously monitor for leaks and respond to anomalies. In addition, any reports, either by
community surveillance teams under contract to SPDC or by the public, are responded to immediately. SPDC
first shuts down the flow of oil to the leak before steps are taken to verify other details about the incident in
preparation for the response, which starts with containment. By immediately shutting down pipelines or
flowlines that are damaged and containing the spills, we minimize the damage to the environment. "
This statement does not mention automatic shutdown of flow, but does say Shell always shuts down pipes
when the company is made aware of a spill.
Clearly shutting off oil flow or isolating part of the system when a leak occurs will help to reduce the impact.
However, the extent to which this is done systematically (or always) is unclear.
First, there is Shell's unwillingness to state what the threshold is to activate automatic shutdown measures.
There is no legitimate reason for this lack of transparency.
Second, it is not clear why, over decades of criticism by environmental and human rights groups about oil
spills, Shell's responses have not said it "immediately" shuts down pipelines or flowlines to "minimize the
damage to the environment".
Third, oil affected communities have reported how oil flows have continued until Shell came to clamp the leak
point. Up to now Shell has not contradicted these accounts. However, it is important to note that even if the
oil flow is turned off, oil can leak for some time afterwards because of the oil remaining in the pipes.
Nonetheless, it is not clear why communities would not be told that the flow was turned off.
Finally, Shell's reticence on the subject appears to have extended to UNEP, despite the fact that Shell was
funding the UN agency's study of oil pollution in Ogoniland. The 2011 UNEP report noted that:
"One observation made consistently through the entire survey was that there was always a time-lag between
the spillage being observed and dealt with. . . It was not possible to ascertain whether the source of the spill
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had been shut off or was continuing to leak oil. ..."
Amnesty International asked Shell why the UN was unable to establish whether the oil flow had been turned
off, if - as Shell claims - this is always done. Shell did not respond.
Agip also stated that it isolates or shuts the facilities involved when there is an oil spill. However, as with
Shell, there is no publically available, verifiable evidence to back up this claim. Shell and Agip's claims that
they isolate facilities or turn of the flow of oil should be independently verifiable, including by a review of
2.5. THE IMPACTED AREA
J IV forms also record the area impacted by the oil spill. This data can affect both the extent
of clean up and the amount of compensation communities received (assuming the cause is
operational).
Again, the methodology used to identify and record the impacted area is extremely weak.
According to NOSDRA, this is also "estimated and agreed" amongst the parties. However,
JIVs consistently fail to capture photos clearly displaying the real extent of the oil spill impact
areas. This is a serious concern as there is no record of the impact to challenge what is
recorded. Moreover, while "estimation" may capture the most obviously affected areas it will
likely fail to identify impacts not visible including the impacts on water systems and on
down-stream communities.
A review of how the impacted area is recorded on JIVs reveals serious weaknesses when
compared with other available data. For example, at Bodo Creek two spills in 2008 resulted
in widespread damage to the water system, mangroves and land. Amnesty International and
CEHRD recorded this damage, using pre and post spill environmental studies, video footage
and satellite images analysed by the American Association for the Advancement of
Science. 106 These data contrast sharply with the very limited indications of impact on the
J IV report; on the documents boxes are ticked to indicate that land, swamp and water were
affected but no details are provided on the scale or scope of impact.
2.6. COMMUNITY INVOLVEMENT IN JIVS
Oil companies claim that the involvement of community members in the J IV process is
intended to improve the credibility of the process. However, the lack of transparency in the
process means that, in practice, this involvement is relatively limited and tokenistic.
Moreover, very few member of the community are able to participate in the process; the oil
companies generally deal with chiefs - or those they designate - and youth leaders, who are
almost invariably male.
As noted earlier, community representatives have been asked to sign incomplete forms; in
such cases it is not clear if data is filled in later or not at all. Communities are frequently
denied a copy of the J IV form, even after signing it. At Bodo, the community was denied the
J IV form for the first oil spill and only got a copy when an influential member of the
community withheld the second spill J IV, insisting that he would not release the second J IV
report until the first J IV was given to them. 107
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Amnesty International also asked NOSDRA about this issue. According to the Zonal Director,
communities always get a copy of the J IV report in the field. When questioned about how
this was possible, he said carbon paper was used. However, community members involved in
JIVs said they had never seen carbon paper used. Amnesty International found evidence that
sometimes carbon is used to make copies of JIVs. Researchers also found clear evidence
that carbon copies are not made and that J IV documents are taken away and a photocopy of
the J IV is later given to the community representatives (if they receive a copy, which some do
not). All of the JIVs that Amnesty International and CEHRD have collected over a period of
six years have been photocopies and not carbons (or copies of carbons).
There is also anecdotal evidence of bad practice in securing community signatures. In one
case reported to Amnesty International, individuals were paid to sign a J IV. In another case,
a company contractor is alleged to have signed a J IV, even though he was not from the
community.
IMPLICATIONS OF EXCLUSION FROM KEY PROCESSES FOR WOMEN IN THE AFFECTED COMMUNITIES
In 2013, Amnesty International spoke to women in affected communities in Rivers and
Bayelsa states about the oil investigation and clean up processes. These interviews were
conducted in groups, as well as individually. All of the women we spoke to expressed their
frustration about the lack of information on the J IV process and their exclusion, which they
felt was perpetuated by the approach of the oil companies. In a focus group session at
Ikarama, one woman put it succinctly:
"We don't need a mediator. We want them to talk directly to us as we are the ones who have
to bear the pain of making sure that there is enough food for the family as our land has got
polluted after the oil spills and is no longer productive, and there is no more fish left in our
rivers to feed. " 10S
In the Niger Delta prevalent cultural norms reinforce patriarchal structures of power and
present men as primary decision-makers in family and community affairs. Women are
generally excluded from critical meetings with representatives of oil companies operating in
the area. Despite their exclusion from the key processes, women in the Niger Delta have
often been at the forefront of protest actions about the impacts of pollution.
A WALK IN IKARAMA
In Ikarama a group of women walked with Amnesty International researchers around the pollution-affected
areas and described the impact of the oil spills on their lives. They described in detail how the polluted creeks
and rivers were no longer usable and that they had difficulty sourcing clean water. Many of them were
farmers who despaired about the reduced yields from the oil-contaminated soil. Some women spoke of how
they used to collect shellfish to sell but the water is now polluted and there is no longer enough fish to sell and
make a living. These women believe the oil industry has made them poorer - while their livelihoods and the
basis for family food have been damaged or destroyed, they almost never get access to compensation paid by
companies.
Gender disaggregated data on the impacts of pollution does not exist in the Niger Delta. However, as various
systems are improved - as companies promise - it is vital that the different ways that oil processes affect
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The exclusion of women from the J IV process not only means they lack information - it can
affect the extent to which impacts of oil spills on women's lives are recorded and addressed.
When a community is affected by an oil spill, compensation is often negotiated with male
community representatives, as an overall "package". The damage done to individuals can be
lost in the course of these negotiations, and more powerful members of the community may
benefit while others, including women, lose out. While communal negotiation may be the
choice of a community, full and effective reparations should include measures to address the
damage both to the community and to the individuals within it.
Companies frequently fail to conduct a full assessment of the damage caused to individual
property, and the overall '"package" agreed by the community leaders is often not enough to
repair all individual properties. Moreover, the negotiation process with the community leaders
is open to abuse. This includes reports of benefit capture by those negotiating with the
company, which can leave many people affected by oil pollution without any effective
remedy.
The informal compensation system can place women at a particular disadvantage. Most
"negotiations" are carried out by chiefs and youths, who are almost always male, even when
women's activities in agriculture and fisheries are affected by oil industry damage.
CASE 5: THE JOINT INVESTIGATION AT ORUMA
In June 2005 an oil spill occurred at Oruma in Bayelsa State. In May 2013 Amnesty International interviewed
community leaders and a man who has sued Shell over the impact of the spill. Amnesty International has also
reviewed the J IV form for this spill. The J IV was done on 7 July 2005. The J IV report is just one page long.
The start date: The spill was discovered by surveillance contractors some time in June; they reported it to
Shell. 109 According to the JIV report the spill was reported on 26 June 2005. The J IV does not give a start date
for the spill. However, during a court action in the Netherlands the start date of the spill was given as 26
June. 110
The volume: The spill was some distance from the main village; according to one man interviewed by Amnesty
International, who went with Shell to the spill site, a huge amount of oil had leaked and the leak point was not
visible. The volume of oil spilt is recorded on the JIV as 400 barrels. However, no explanation is given for this
number.
The cause: The JIV claims there was a drill hole and tool marks on the pipe. However, no cause was
established in the field; Shell reportedly said that they wanted to do computer analysis. It was never made
clear what the computer analysis would look at. Shell reportedly said the results of the analysis would be ready
a week later. No details of any computer analysis appear on the JIV document. Nor does the JIV explain why
computer analysis was required.
Who signed? The JIV form is signed by Shell and the regulators, but not by the community.
The JIV described above was used by Shell as the factual basis for the company's defence in a court action in
the Netherlands when members of the Oruma community attempted to sue for compensation for the impact of
the Oruma spill, which, they claim, was never properly cleaned up. The court accepted the JIV document, and
was also shown a video made during the JIV, which has not been made public. Accufacts provided an opinion
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on the video footage for the court case, raising doubts about the stated cause of the spill. However, the court
found this created only "general doubt" and was not specific enough to refute Shell's claims. 111
The use of incomplete, brief documents, compiled after a questionable process, in court actions is a matter of
some concern. Affected individuals and communities are at a distinct disadvantage if the J IV process is
assumed to be correct unless they can prove otherwise. In Amnesty International's view JIVs should not be
relied upon by courts and associated data, such as photographs and video footage, should be subjected to
independent scrutiny, without an a priori assumption that such evidence shows what the J IV report claims it
2.7. CONCLUSIONS ON JIV PROCESS
The foregoing sections of this report have examined the JIV process and reports that have
been - until very recently - the only known basis for establishing the cause of oil spills, the
volume spilt and area affected. These forms are used in court cases, and Shell has publically
used the documents in defending its oil spill record.
However, the JIV process itself is deeply flawed, and Shell has claimed spills are due to
sabotage, without evidence, when they are not. The process is open to manipulation, and has
been manipulated.
Accufacts summed up its assessment:
"It should be obvious that simple one or two page JIV forms appear to be serving another
alternative agenda, more driven by politics and related pressures than pipeline forensic
science. The JIV Report forms are incomplete, appear to be subjective, not factual in nature,
and fail to clearly identify that field observations serve only as preliminary observations.
Clear technical, observable factual information that can be defended and proven repeatedly
to any party who may challenge the finding needs to be incorporated into the JIV Report
form. While recent updated, longer JIV Report forms are an improvement, even these forms
are technically incomplete. Cause determinations based on location on the pipe, or
identification of previous possible excavation, should play a highly limited role in cause
determinations. Cause of failure determinations are best supported by close up color photos
of failure sites that should be included in the JIV Report." 122
Responding to the assessment of the JIV process Shell's only response was: "the process is a
federal process that SPDC cannot unilaterally change." 113
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SHELL'S BUREAU VERITAS PROCESS
Following criticism of the oil spill investigation process in the Niger Delta, Shell announced in 2011 that it had
hired a company called Bureau Veritas to verify the oil spill investigation system. 114 Despite repeated requests
by Amnesty International and others for information on what exactly Bureau Veritas has verified or will verify,
and whether Bureau Veritas will be allowed to consider evidence provided by communities and NGOs, Shell has
refused to respond.
The value of the Bureau Veritas process, and the extent to which it addresses any of the long-standing
problems with the oil spill investigation process, will depend on the parameters of its verification
methodology. In the absence of a transparent process, there is serious concern that the Bureau Veritas
initiative is a public relations response to mounting criticism of Shell's impact in the Niger Delta.
During a research visit to the Niger Delta in May 2013, Amnesty International interviewed a man who had been
party to a J IV process where Bureau Veritas had been present. The man [name withheld] was later invited to a
debriefing session at Shell's offices in Port Harcourt, during which, he reports, Bureau Veritas raised some
concerns about Shell's J IV process, and specifically the process for calculating the volume spilt.
In June 2013 Amnesty International asked Shell Nigeria's Managing Director about the Bureau Veritas process,
specifically about any feedback Bureau Veritas had given to Shell on the J IV process. Mr Sunmonu responded;
"I have not seen any comment of materiality from Bureau Veritas". Amnesty International asked what
improvements have been made on the basis of Bureau Veritas recommendations. According to Mr. Sunmonu,
the main improvement has been managing conflict with communities over the cause of spills.
Amnesty International asked whether Shell would publish the Bureau Veritas recommendations to Shell. They
will not.
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CHAPTER 3: THE AUGUST 2008 BODO
OIL SPILL INVESTIGATION: MULTIPLE
PROBLEMS
On 28 August 2008 a fault in the Trans-Niger pipeline caused a significant oil spill into
Bodo Creek in Ogoniland. The pipeline is the responsibility of Shell. The spill, which was due
to equipment failure, resulted in tens of thousands of barrels of oil polluting the land and
creek surrounding Bodo, killing the fish that people depend on for food and livelihood. 115
Amnesty International and CEHRD have investigated this spill and published several reports,
including a detailed report in November 201 1 (which also described a second spill at Bodo
in December 2008). 116 The 2011 report included photographic and satellite evidence
showing the scale of the environmental impact of the 2008 oil spills, and exposed Shell's
failure to clean up the pollution, despite the requirements of Nigerian oil industry
regulations.
In 2011, after years of trying to get Shell to clean up and pay compensation, the people of
Bodo began a court action in the United Kingdom (UK) - this court action is ongoing. 117
Shell has stated that current oil pollution at Bodo is not due to the two major 2008 spills,
but to other oil pollution which occurred before and afterwards. 118 This claim does not stand
up to scrutiny, both because of serious flaws in the oil spill investigation conducted by Shell
in November 2008, and because the data on other oil spills in the area are not consistent
with Shell's assertions.
3.1. DATA ERRORS ON THE AUGUST 2008 BODO OIL SPILL INVESTIGATION
FORM
INCORRECT START DATE
Shell claims the oil spill started on 5 October. The community state it began on 28 August.
In 2011 Amnesty International contacted the National Oil Spill Detection and Response
Agency (NOSDRA), and - under Nigeria's freedom of information law - the agency confirmed
in writing that the spill started on 28 August 2008. 119 In May 2013 Amnesty International
researchers visited the offices of NOSDRA in Port Harcourt and were given access to their oil
spill database; researchers reviewed all spills listed for the Bodo area from 2007 to date. A
spill was listed for 28 August with all the same parameters as the one Shell has claimed
started on 5 October. There is no spill listed for 5 October, or indeed for October at all.
Amnesty International then went to a separate regulatory agency - the State Ministry of
Environment. Their hand-written records also show the 28 August start date. 120 Amnesty
International has asked Shell to explain why it recorded the date as 5 October. Shell has not
responded.
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Shell appears to have used the date they recorded they were first informed of the spill as the
start date. In 2008, a BBC journalist who came across the Bodo spill case put questions to
Shell, specifically about the issue of the start date and why Shell said 5 October despite the
community claim of 28 August. At that time Shell stated:
"...the information about the spill reached us on October 5; the official Joint Investigation
Team incl people of the Bodo community found on November 7 that the reason for the spill
was a weld defect. Without clear evidence about who detected the leakage, when and
reported to whom it is difficult to continue this part of the discussion..." 121 (emphasis
added)
Despite the statement by Shell above, three separate sources record 28 August as the start
date (the testimony of those living at Bodo, the NOSDRA database and the State Ministry of
Environment's hand-written records); these is no evidence whatever that it began on 5
October, which Shell's email, quoted above, acknowledges when it says "information about
the spill reached us on October 5."
SIGNIFICANTLY UNDER-ESTIMATED VOLUME
Shell's J IV report claims only 1,640 barrels of oil were spilt in total. However, in April 2012
Amnesty International obtained an independent assessment of the rate of oil flowing from the
affected area of the pipe on the date when the oil spill investigation took place, which was 7
November 2008, 72 days after it began. This assessment, by US-based firm, Accufacts, was
based on video footage of oil gushing from the leak point on 7 November. 122
Shell does not dispute the video footage or the date on which it was recorded. The Accufacts
assessment found that between one and three barrels of oil were spilling per minute at Bodo
(this means between 1,440 and 4,320 barrels of oil were flooding the Bodo area each day).
This assessment discredits Shell's figure of 1,640. Shell has confirmed its figure was
recorded during the J IV process 123 - which means it was based on a field estimation, which,
as discussed in earlier sections of this report, has significant limitations.
In late 2012 Shell stated publically that the volume was not this high because it had turned
off supply to the affected pipe. 124 There are a number of problems with this claim.
1. Shell's responses to the BBC in December 2008, and Amnesty International in 2009,
201 1 and 2012 make no mention of turning off the flow of oil to reduce damage
In responding to the BBC journalist who asked Shell about the delay in stopping the spill
Shell stated:
"...SPDC did not get permission to pass through the K-Dere community to access the site
until 7 November..." Shell went on to state: "Had SPDC been granted immediate access the
volume of oil spilled and the subsequent environmental damage would have been
significantly reduced. Immediate reporting and access to spill sites is an ongoing issue in the
Delta - sometimes the consequence of delays is that the size of the spill increases with a
resultant increase in impact and higher subsequent compensation claim. " 125
In email correspondence with the BBC in 2008, speaking directly about the issue of the
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time-frame of the oil spill, Shell did not mention turning off supply to the pipes. This
omission is significant. Moreover, Amnesty International and CEHRD - both organizations
that regularly travel from Port Harcourt (where Shell's headquarters in Niger Delta are
located) to Bodo - have repeatedly noted that there is no need to pass through K-Dere. The
direct route to Bodo from the Saakpenwa-Bori road is the trans-Gokana road from Kpopie
junction, not through K-Dere. Amnesty International has asked Shell to explain its statement
to the BBC but the company has offered no explanation.
Amnesty International has raised the case with Shell since early 2009 when the organization
published a wider report on the impact of the oil industry on human rights. In none of the
responses to Amnesty International did Shell mention turning off oil flow to the affected area.
Even when, in April 2012, Amnesty International published the Accufacts estimate of the
volume of oil flowing at Bodo, the company response again made no mention of turning off
the flow of oil. Nor did Shell, at this time, offer any explanation for the figure of 1,640
barrels. 126
2. Shell's first public claim about turning off the pipes only comes in 2012
As far as Amnesty International is aware it was only in late 2012, after Amnesty International
had exposed how much oil was flowing from the leak point at Bodo, that Shell made its claim
about turning off the pipes. 127
But there are other problems with Shell's claim.
3. The oil is seen as still flowing in the 7 November 2008 video
If Shell turned off the oil flow, then how is it that oil is clearly seen still flowing in video
footage taken on 7 November? The fact that the oil was flowing is not disputed. Shell has
not explained this.
4. Shell's new claims about the spill volume rely on the discredited start date
Shell has continued to assert that only 1,640 barrels of oil were spilt at Bodo. The company
now claims, without explanation, that the oil flowed for just three or seven days (Shell has
said that for the two Bodo spills, the one in August referred to here, and another in December
2008, the oil flowed for just three and seven days but it is not clear to which of the spills
these dates apply). This claim is based on a start date of 5 October, which - as noted above -
is discredited by the data held by both State and Federal regulatory agencies and the
community itself, and for which Shell has (to date) provided no explanation.
Moreover, even if Shell did turn off flow on the affected area of the Trans Niger Pipeline, for
some period of time, as its October 2012 statements appears to suggest, the pressure in the
line would mean oil would continue to flow for some time. Accufacts, in assessing the 7
November video footage, noted "once the leak started, the leak rate would not decrease for
some time, until the operator discovered the release and substantially evacuated the pipeline
to reduce the pressure with the pipeline at the leak site." 128
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Even accepting Shell's statement that it turned off the flow of oil flowed at Bodo, the total
volume of oil spilt from 28 August to 5 October (the logical assumption being Shell cannot
have turned off flow before it claims - wrongly - the spills started) would be substantially
greater than 1,640 barrels. 129
Finally, Amnesty International has looked for contemporaneous evidence to support Shell's
claim it stopped the flow of oil at Bodo, but found none. In order to match Shell's claim that
oil flowed at Bodo for only three or seven days between 5 October and 7 November (first
spill) and 7 December and 21 February 2009 (second spill), this would mean some part of
one of the two Trans-Niger Pipelines (there are two: a 24" and a 28") would have been shut
off or isolated for approximately three months in a five month period. However, as far as
Amnesty International could discover Shell did not make any public disclosure about this at
the time.
In summary, an oil spill began on 28 August 2008 and there is irrefutable evidence it was
flowing on 7 November 2008. If Shell turned off the flow the company needs to explain
when it did so and why it turned it back on again before the spill site was made safe. The
company must also acknowledge that even if its - thus far unsubstantiated - claims about the
number of days oil flow was turned off are correct, considerably more than 1,640 barrels of
oil leaked from the pipes at Bodo.
LACK OF TRANSPARENCY
Communities are supposed to be involved in the J IV investigation. However, people in Bodo
claim that when Shell eventually arrived on 7 November to clamp the leak and conduct the
J IV the company did not engage with them. The community claim they only participated in
the joint investigation because they saw that it was taking place. "When they came, they did
not inform the king, the chiefs or the youth," the President of the Bodo Youth Council told
Amnesty International in 2011. "That first day, the spill was so serious that they could not
stop it. The next day they came again, with NOSDRA." 130
The Bodo community was initially denied a copy of the J IV report for the August 2008 spill.
According to community members, Shell claimed the J IV report was company property and
that the community was not entitled to a copy. Shell declined to comment on this allegation.
They only obtained the J IV after a second spill occurred (in December 2008), at which point
the community demanded a copy of the first J IV report before they would sign the second
one. Shell met this demand in February 2009.
FAILURE TO CLEAN UP
Shell has claimed it cleaned up at Bodo. An investigation by Amnesty International and
CEHRD, published in 2011, found Shell had not cleaned up. This investigation was based
on a review of existing and new evidence, including satellite images, video and photographic
evidence and community testimony. 131
Shell's statements about clean up at Bodo and access to Bodo are inconsistent and raise
serious questions. Below, in date order, are statements Shell is known to have made about
clean up at Bodo.
In an email to the BBC on 15 December 2008, Shell stated that "Clean up and recovery of
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oil is on-going."
However, Shell later claimed that it did not have access to the area to stop a second oil spill
at Bodo that began on 7 December 2008. 132
When Shell's Chief Executive Officer (CEO), Peter Voser, claimed, during the 2012
Shareholder meeting, that Bodo had been cleaned up, Amnesty International pressed the
company to say when this alleged clean-up occurred. Shell responded that: "Initial clean up
(which term includes containment and recovery) started about 30 October 2008 and was
completed in December 2009. " 133
This extremely broad timeframe - for a process that should be done in a matter of days or
weeks - is not credible. It suggests that a clean up began before the J IV was conducted. It
also raises questions about why Shell is unable - or unwilling - to be more precise. It is also
inconsistent with at least two other pieces of information. Amnesty International asked Shell
to clarify the dates but had not received a response at the time of printing.
Shell has claimed publically that it did not have access to Bodo to conduct investigations
into a second major spill which began on 7 December 2008 - the J IV was done on 21
February 2009. Yet Shell told the BBC on 15 December 2008 that "Clean up and recovery
of oil is on-going." The company cannot claim to be cleaning up since October 2008 (to
Amnesty International) and during December 2008 (to the BBC) and yet not to have had
access to do the second J IV until February 2009.
Moreover, a series of letters from the regulator NOSDRA to Shell, which CEHRD and Amnesty
International obtained copies of, also raise questions about Shell's claims. NOSDRA wrote to
Shell on 12 May and 9 June 2009, after meeting Shell on 23 April 2009. The letters asked
the company to "accelerate your plans for further consultation on the interpretation of section
19(1) of the NOSDRA Act and inform it soonest so that the above damage assessment could
commence". Section 19(1) refers to assessing "any damage caused by an oil spillage".
NOSDRA further stated that "the Agency considers as unacceptable the continuous delay in
the conduct of the damage assessment". NOSDRA noted that this situation had resulted in
"the continuous devastation of the environment". There is no reference in these letters to
issues of other spills or of denial of access. It is reasonable to assume that letters from the
regulator to Shell, based on meetings with Shell, would acknowledge legitimate difficulties
faced by Shell in accessing the site, if such difficulties existed.
The claims Shell has made about the time frame in which it alleges it did a clean up and the
lack of access to do JIVs raise serious questions about the extent to which the company is
simply giving itself sufficient space to make - and adjust - its claims about the Bodo case.
The clean up that Shell claims occurred at Bodo has not been certified by the regulators.
Notwithstanding the fact that regulatory certification of clean up in the Niger Delta is a
completely discredited process, with regulators certifying polluted sites as clean (see next
section), Shell's failure to secure the relevant document also raises questions.
In a letter to Amnesty International activists in 2012 Shell stated that: "recovery of free
phase oil and primary cleanup, which involves removal of impacted vegetation and gentle
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flushing of the impacted mangrove forest, was completed by community nominated
contractors in December 2009. However, this was not certified by the authorities because
the site was re-impacted by non-operational spills, including those from sources other than
SPDC pipelines." 134
Shell is therefore claiming that it did a clean up some time in 2009 but that before the clean
up could be certified there were other spills. However, the spills recorded for Bodo on the
NOSDRA database contradict this statement: there is only one spill recorded for Bodo for
2009 and that was in April, and only 13 barrels are recorded as spilt. This small spill
occurred during the period Shell claims it cleaned up, so logically, it would have been
addressed as part of the wider clean up. The next spill listed for Bodo is in 5 May 2010, five
months after Shell claims it cleaned up Bodo. If Shell cleaned up Bodo between October
2008 and December 2009, there were no spills - operational or otherwise - in the records
that occurred or could cause the site to be re-impacted before regulatory certification was
obtained, as Shell claims.
In a letter to the UK Financial Times on 22 March 2012, the Managing Director of Shell in
Nigeria stated: "In the case of Bodo it is deeply regrettable that both before and since those
two operational spills occurred much more oil has been spilt as a result of illegal activity -
sabotage, illegal refining and theft - which blights the Delta generally." 135
As with other claims Shell has made about clean up, these statements are not supported by
any evidence; on the contrary, the evidence that exists contradicts the assertions made by
Shell Nigeria's Managing Director.
1. Ecological studies of the area before 2008 spills
Ecological studies were carried out in the area from 2005 to 2008 by a number of Nigerian
and international scientists. 136 These studies show that the Bodo area was not polluted prior
to the two 2008 spills; on the contrary the area was considered pristine.
2. Satellite images of the area in 2006, 2009 and 2011
In 201 1 Amnesty International and CEHRD worked with the American Association for the
Advancement of Science (AAAS) to obtain and analyse satellite images of the Bodo area. 137
An image taken on 4 December 2006 shows Bodo town and the intertidal zone and adjacent
waterways. In this false-colour image, healthy vegetation appears bright red. This image
confirms what the ecological studies show - that the area was healthy.
A similar false-colour satellite image was taken on 26 January 2009 and contrasted with the
2006 image. It shows how large swathes of vegetation near Bodo's riverbanks have turned
from bright red to black, the latter colour indicating plant death. A third image was taken on
8 January 2011. The areas with dead vegetation still appear black, with little visible recovery.
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Satellite images of Bodo and the intertidal zone (top right) and adjacent waterways, Nigeria, taken on 4 December 2006 (left) and
26 January 2009 (right), © 201 1 DigitalGlobe, Inc, produced by the American Association for the Advancement of Science (AAAS).
3. The evidence contained in the National Oil Spill Database
The satellite images confirm the extent of damage in early 2009, following the August (and
December) 2008 spills at Bodo. If Shell's claim that the area was cleaned up between
October 2008 and December 2009 is accurate, then there would have to be an explanation
for the very visible oil damage in the same area on 8 January 201 1 satellite image (and later
in 201 1 videoed and photographed by Amnesty International). Shell claims this is from
other oil spills. Although Shell made this claim to Amnesty International in 201 1, the
company would not provide JIVs or any other data to support its statement.
In May 2013 Amnesty International reviewed all oil spills recorded in the NOSDRA database
for Bodo. The volume of oil recorded as spilt during 2010 cannot explain the scale of
pollution visible at Bodo and recorded on photos, video and satellite images. According to
the NOSDRA database, the total oil spilt from 1 January 2010 (after clean up, according to
Shell) to 8 January 2011 (the date of the satellite image) is 178 barrels. The scale of
pollution shown on the January 201 1 satellite image cannot therefore come from later oil
spills at Bodo (regardless of the cause of the spills), as all later spills combined cannot
account for the pollution that has been documented through satellite (and later video)
evidence in 201 1.
The claim that the area was polluted before the spills is contradicted by a combination of the
2006 satellite image (showing a pristine area) and the various ecological studies, which
confirms the area was unpolluted. In any case, Shell claims it cleaned up in 2009.
The claim that the pollution that is still visible at Bodo is due to later spills is also
inconsistent with the data. The pollution visible in 2011 (recorded by satellite and, in
April/May 2011, by Amnesty International on video and in photographs) cannot be due to oil
spills that happened after 2009 as the total volume recorded by NOSDRA cannot account for
the scale of the pollution; 178 barrels of oil is a relatively small amount.
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Therefore there is a significant gap between Shell's claim about other sources of pollution
and the actual data. The site has not been re-impacted by spills due to sabotage or theft in
any timeframe that is consistent with the physical evidence. That leaves only illegal refining.
However, any claims by Shell that the pollution recorded consistently since 2008, including
by satellite images, could be due in part to illegal refining must be backed up by
independently verifiable evidence to break Shell's pattern of unsubstantiated statements
about Bodo.
The physical evidence referred to above is not the only evidence that contradicts Shell's
claims. Between 20 and 29 April 2011, Shell sent a team to Bodo to produce a "Pre-
cleanup and Field Assessment Report". Amnesty International obtained a copy of this report.
The assessment of the damages to the local environment was very vague. For example, its
general observations included that "numerous" mangroves were "withered/burnt, oil stained".
It concluded that a clean-up was required. Shell has never explained why it would send a
team to the area to do pre-clean up and compensation assessment when the area was,
according to other statements made by the company, already cleaned up.
3.2. CONCLUSION ON BODO JIV
The JIV conducted for the August 2008 spill at Bodo is deeply flawed. A disputed start date
is recorded for which no substantiating evidence is provided. The volume of oil spilt likewise
does not correspond with any other available date and is also not backed up by an
explanation. The failures of the JIV were followed by failure to clean up the area, despite
claims to have done so. Bodo remains highly polluted; the company has provided no evidence
that any clean up ever occurred and its claims about other pollution do not square with the
evidence.
Claims that the company was denied access to Bodo are also inconsistent both with available
evidence and with Shell's various statements. Firstly, Shell said to the BBC that it was
cleaning up on 15 December 2008 - either this statement was incorrect or the company had
access. Therefore why could Shell not conduct the JIV for a 7 December spill before
February 2009?
Shell had access to the site in February 2009 to do another JIV and in May 2009 when they
sent a small package of relief materials to the community. The letters from the regulator
NOSDRA - described above - also raise questions about Shell's claims. There is no
suggestion in these letters to Shell that the company has reported to NOSDRA its difficulty
accessing the area.
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CHAPTER 4: OIL COMPANIES
RESPONSIBILITY FOR SABOTAGE
4.1. THE CASE OF SHELL
The data in the previous Chapter discredits the system which Shell relies upon to make
claims about the proportion of oil spilt as a result of sabotage and theft. However, there is
another problem with the company's approach to these matters. While Shell is quick to point
to sabotage and theft, the company has failed to take effective action to prevent such
interference with its infrastructure. However, international oil industry standards require oil
companies do just this; moreover additional protective requirements should apply in Niger
Delta.
Nigerian law requires oil companies to ensure "good oil field practice" and to comply with
internationally recognized American Petroleum Institute (API) and American Society of
Mechanical Engineering (ASME) standards. 138
Much of the oil infrastructure in the Niger Delta runs close to homes, farms and water
sources of the Niger Delta communities. More than 60 per cent of the Niger Delta's
population has a significant dependence on the environment for food, water and income. 139
According to Professor Richard Steiner, who has examined oil pollution in the United States
of America (US) and Nigeria, the Niger Delta can be regarded as a High Consequence Area
(HCA) for oil spills. HCAs are defined by a set of criteria under the US regulations on Pipeline
Integrity Management in High Consequence Areas (49 CFR 195.425), which can be
considered a global standard for pipeline safety and integrity. The criteria include it being a
populated area, drinking water area or productive ecosystem - all of which apply to the Niger
Delta. As an HCA, the Niger Delta should require additional risk reduction measures from oil
companies in line with US Integrity Management standards. These standards are codified by
API, and consequently considered international 'good oil field practice,' and are thus
required of operators by Nigerian law. 140 According to Professor Steiner, acting on these
standards should include implementing damage prevention best practices and use of the best
available technology.
In addition to being a HCA, the Niger Delta is an area susceptible to damage from third
parties (sabotage, illegal bunkering). The API has developed guidelines to protect operators
from the risk of terror attacks and vandalism. These additional sabotage prevention measures
should include such things as more robust Design Factors including sabotage resistant pipe
specifications, thicker walled pipe, reduced D/t ratio (pipe diameter / pipe wall thickness),
higher grade steel, pipe-in-a-pipe or pipe-bundle technology, amongst other things measures;
alternate choices for routing pipelines away from high-risk areas; deeper burial of
underground pipeline segments; concrete casements around pipe; more rigorous and frequent
inspection protocols; enhanced Leak Detection Systems with greater sensitivity; better
community engagement; and other traditional security techniques. A review of the available
evidence (some of which is contained in next section) shows that Shell is not operating to
these international standards.
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Evidence of Shell's failure to properly secure its infrastructure was included in the 2011
UNEP report on oil pollution in Ogoniland, Rivers State. 141 Although no oil production has
taken place in Ogoniland since 1993, oil pipelines carrying oil produced in other parts of
Nigeria still pass through the area. When Shell left Ogoniland it did not properly
decommission its facilities, leaving them open to interference, and communities exposed to
the associated risks. This is completely contrary to international oil industry standards as well
as international standards on business and human rights, both of which require that Shell
exercise adequate due diligence in relation to prevention of sabotage, theft and the
associated human rights and environmental risks.
UNEP made the following observations:
"UNEP's reconnaissance routinely came across oilfield resources which had evidently been
abandoned in an uncontrolled fashion. This varied from pipelines left open and lying in
trenches (possibly deserted midway through pipe laying operations), to oil facilities left
standing but without subsequent maintenance. The bottom line is that the current state of
the abandoned facilities of oil field structure in Ogoniland do not meet with international best
practices. " 142
UNEP went on to note the implications in relation to interference by third parties:
"The control and maintenance of oilfield infrastructure in Ogoniland is clearly inadequate.
Industry best practice and SPDC's own documented procedures have not been applied and as
a result, local communities are vulnerable to the dangers posed by unsafe oilfield
installations. The oil facilities themselves are vulnerable to accidental or deliberate
tampering. Such a situation can lead to accidents, with potentially disastrous environmental
consequences. " 143
The report expressed particular concern about one area:
"Visits to a number of facilities confirmed this understanding. Most alarming was the
situation at Bomu flow Station in K-Dere. When the UNEP team first visited this location, the
fences (since fixed) were broken and oil contamination was visible within the site. Given that
the area around this facility is densely populated, this is a very serious situation from the
point of view of both community safety and security of the facility. Conditions such as these
at oilfield facilities indicate a lack of control on the part of the operators. In a properly
maintained facility, a flow station should be secure, with no oil on the ground and minimal
fugitive emissions. " 144
In responding to the UNEP report, Shell has claimed that the reason that it never properly
decommissioned its Ogoniland facilities and made them safe over the last 18 years was lack
of access. This is not the case. Shell has had access to Ogoniland over the last 18 years,
including to carry out the highly inadequate clean-ups that UNEP documented. Shell's
access to Ogoniland is undoubtedly restricted at times, but Shell cannot defend its failure to
properly decommission facilities in Ogoniland over 18 years by reference to problems of
access.
Although international standards and best practice require Shell to do more to protect its
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infrastructure for interference, the company has not been held to account for its failures in
Nigeria.
As victims of environmental abuse increasingly look to foreign courts, however, there is
increasing potential for civil litigation over oil companies' failure to prevent sabotage. In
January 2013 a Dutch court found in favour of a Nigerian farmer who has sued Shell over
damage to his property. Shell claimed the spill was due to sabotage. The Court found that
Shell Nigeria had breached its duty of care in that case by failing to take reasonable action to
prevent third parties tampering with oil wells and causing oil spills.
This ruling should have wider ramifications for Shell's Nigeria operations. The extent to which
the company has acted to prevent sabotage must now be closely monitored, with particular
scrutiny given when oil spills are attributed to sabotage.
Shell has appealed the decision.
4.2. THE CASE OF AGIP
Agip's claims about sabotage have received less scrutiny than those of Shell. This is in part
because Shell is the main on-land operator and therefore a greater number of communities
are affected and, by extension, more people raise concerns. However, the huge number of
spills recorded for Agip within its relatively smaller area of operation merit further
investigation. Agip claims that the vast majority are due to sabotage and theft. This claim is
unsubstantiated. Moreover, even if true it would be completely indefensible. In 2013 Agip
stated that it planned to spend "another 200 million USD. ..in the period 2013-15, including
the implementation of advanced anti-bunkering technologies." 145 The company also stated
that "Innovative techniques are being tested by ENI, aimed at enhancing the early detection
of leakages along the lines (use of fibre optics, hydrophones) and discouraging oil theft
activity (use of chemicals/mechanical barriers)." 146
While Agip's commitment to take more action to address sabotage and theft is welcome, it is
a matter of some concern that a company that has had almost 500 leaks in the last nine
months - and more than 1,500 since 2010 - has not take the proposed action much sooner.
LAW ON SABOTAGE MUST CHANGE
There is an urgent need for amendments to Nigeria's legislation in respect of sabotage and other third party
interference with oil infrastructure. Presently the operating oil companies have almost no legal obligations to make
their facilities safe; and they do not do so. They do not have to pay compensation to affected people, regardless of
how negligent they may have been in terms of preventing the release of hazardous material from their operations.
The current legal situation in Nigeria is inconsistent with the country's human rights obligations and with
international oil industry standards. Although Nigerian law requires companies to uphold international standards,
the way the law has been interpreted fails to consider whether the oil companies have taken reasonable precautions,
in line with industry standards, to avoid sabotage and theft. This leaves the victims of oil spills that are attributed
to sabotage and theft without access to an effective remedy when their rights to food, water and livelihood are
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The apparent reason for this legal provision is that if compensation were paid for oil spills due to sabotage this
would encourage sabotage. This logic is flawed because it fails to require operators to make their infrastructure
4.3. CONDITION OF PIPES NOT DISCLOSED: WHY NOT?
Although numerous spills are due to corrosion of the oil infrastructure in the Niger Delta,
Shell refused to make public the age or condition of its oil pipeline. Agip has made some
information available (discussed below).
In the mid-1990s Shell appeared to recognize that its own operations were contributing to at
least part of the oil pollution problems in the Niger Delta, stating: "The company recognises
the gap between its intentions and its current performance. It is working hard to renew
ageing facilities, reduce the number of oil spills in the course of operations, the amount of
gas that is flared, and to reduce waste products." 147
Shell established a programme to replace and upgrade ageing facilities and pipelines, and
improve the way the company operated and maintained facilities and responded to spills. 148
However, only a limited amount of work was done to fulfil this objective, and many pipelines
were not in fact replaced. Instead, between 2003 and 2005, Shell switched to a Pipeline
Integrity Management System. This involves checking the condition of pipes and replacing
them on the basis of condition rather than age. The results of the full asset integrity review
(which examined the condition of Shell's pipelines) have never been made public.
According to Shell, during 2005 the company completed all the higher risk integrity activities
identified by their asset integrity review, representing some 1,500 action items. However,
some significant operational spills occurred after the asset integrity review and the initiation
of the Pipeline Integrity Management System. Shell has confirmed that there were delays in
carrying out its asset integrity work. In 2007, Basil Omiyi, then Country Chair for Shell
companies in Nigeria, said, "We do, however, have a substantial backlog of asset integrity
work to reduce spills and flaring. This backlog is caused by under-funding by partners over
many years, operational problems and, more recently, the lack of safe access to the
facilities." 149
During a court action in the Netherlands it was revealed that some of the higher risk work
may not have been done. In relation to one trunkline that was very vulnerable to corrosion,
the court documents reveal the following assessment made in October 2004 by Shell:
"SPDC proposes to replace the 20" Trunkline with carbon steel pipeline due to corrosion.
The corrosion was deemed "unmanageable" by a recent engineering study carried out on the
line in 1 999. The fact that the line is likely to leak before the year 2003/2004 informed the
decision to replace the line with carbon steel pipes with adequate provision for frequent
pigging and biocide injection. Considering the rate of corrosion observed in the old pipelines
proposed for replacement, if the replacement is not carried out, then there would be a very
high risk of leakage which will result in oil spill and consequent contamination. " 150
Despite the fact that the engineering study was carried out in 1999, the observations above
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were made in 2004, five years later and the pipe had not been replaced.
Evidence of serious problems with Shell's infrastructure has been mounting. A US diplomatic
cable from 2008, recently published by wikileaks, stated that a contractor with many years'
experience of laying pipelines in the Niger Delta told the US consulate in Nigeria that "73
per cent of all pipelines there are more than a decade overdue for replacement. In many
cases, pipelines with a technical life of 15 years are still in use thirty years after
installation". The cable continued: "because the equipment is corroded and relatively close
to the surface, making it more vulnerable to intentional and unintentional damage from
natural and human causes, spills occur daily, and it often takes many hours to find the
location of the spill and deploy the necessary clean-up equipment." 151
The contractor reportedly suggested that pipelines be replaced with "new, concrete-encased
pipes that are placed three to four meters underground" which would reduce spills caused by
both bunkering and equipment failure. The US cable concludes that this "assessment of the
current state of pipelines has been confirmed by other of our interlocutors."
Without independent assessment there is no way of confirming the scale and extent of poor
pipeline maintenance and integrity in the Niger Delta. However, by Shell's own admission,
the situation prior to the 1990s was poor, a pipeline replacement programme was ended
before many pipes had been replaced, and the subsequent Pipeline Integrity Management
System was, as of 2007, under-funded and behind schedule. Shell's own admissions from
2007 and the statements made to the US Ambassador in 2008 appear to reflect a similar
picture.
Shell's failure to be transparent about the condition of its infrastructure has exacerbated
community tensions around the oil spill investigation process. In the absence of
transparency on the state of oil infrastructure there is concern that - at least in some parts of
the Niger Delta - pipes in poor condition are the reason for the high number of oil spills.
In 2010 Friends of the Earth conducted an assessment of the oil pipelines traversing
Ogoniland, one part of the oil producing areas. Based on publically available information they
concluded that the 24" and 28" pipelines leading from Bomu to Bonny were laid 46 to 50
years ago. Friends of the Earth reviewed all available evidence on pipeline replacement and it
would appear that the Bomu-Bonny pipelines have not been replaced since the early 1960s.
There has been a replacement of the Trans-Niger pipeline in the period 1992-1994, but this
replacement stretched from Rumuekpe to Bomu and did not include the Bomu-Bonny
pipelines. Oil pipelines today are generally designed for a lifetime of about 40 years. 152 Pipes
laid in the 60s would probably have had a lifespan of 15 years. The Bomu-Bonny pipelines,
which are likely to be 46-50 years old, have been exposed to the challenging coastal
environment of the Niger Delta. 153
As noted by UNEP, the pipelines running through Ogoniland have not been "maintained
adequately". The combination of these factors - old pipes, not properly maintained, and in
an environment that would expose them to corrosion - raise very serious questions about
Shell's due diligence in preventing harm to the environment and human rights.
Amnesty International also asked Agip about the age of its infrastructure. In response Agip
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referred to a table presented in the context of its 2013 shareholder meeting. Of 14 pipelines
mentioned in that table, more than half date from the 1970s and four are 40 years old,
dating from the early 1970s. 154 Agip did not give information.
SHELL CONTRACTORS INVOLVED IN OIL THEFT?
A major fire that forced Shell to close its Trans Niger Pipeline in June 2013 raised serious questions about the
way the Shell and its contractors are operating. The fire broke out following an oil spill on 11 June in an area
where Shell contractors were working on maintenance and repairs. The area was guarded by security forces
and local residents who attempted to visit the site to asses the scale of the spill were turned back. In the days
leading up to the fire Nigerian security forces prevented anyone other than Shell's contractors going near the
area of the spill. From the shore people saw barges being loaded with oil and taken away from the site.
Shell said the fire was caused by theft of oil. Eight Shell contractors were arrested by Nigerian security
services, on suspicion of involvement in activities that led to the fire. The facts, detailed above, make it
difficult to see how anyone other than Shell's contractors were in the vicinity in the days leading up to the fire.
Nigerian and international NGOs called for a transparent investigation into the events leading up to the fire
and the role of the Shell contractors. For years, there have been allegations that individuals connected with
Shell are involved in oil theft but there has never been any hard evidence to substantiate this.
A J IV was conducted and concluded the problem was theft. Shell also established a committee to investigate
the spill incident.
Once again, the control that Shell has over what should be an investigation led by regulators is of serious
concern. To date there are no clear answers on the role of the contractors.
Shortly after the fire at Bodo, a spokesperson for the President of Nigeria raise the issue of multinational oil
companies' complicity in the increased rate of crude oil theft in the Niger Delta. 155 The Special Assistant to the
President on Amnesty, Kingsley Kuku, is reported to have said that highly placed individuals and groups were
sponsors of those stealing the nation's crude oil. He said the process of illegally extracting crude oil from the
pipelines in the coastal areas require highly technical and mechanical expertise which ordinary Nigerians or
residents of the oil producing communities do not have. He also specifically pointed to the issue on
contractors saying that almost every oil company has pipeline protection and surveillance contractors, and
that the same people who are meant to be securing these pipelines participate in oil theft. He urged the oil
multinationals to look at their contracting process. 156
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CHAPTER 5: CLEAN UP AND
REMEDIATION
Following an oil spill - including spills that are attributed to theft or sabotage - the company
is obliged to contain (limit the spread of), clean-up and remediate (return the area to its prior
state) the affected area. Under Nigerian regulations, the operating oil company is
responsible for the clean-up of oil spills, and clean-up is supposed to be both swift and meet
good practice standards. According to the Environmental Guidelines and Standards for the
Petroleum Industry in Nigeria clean-up should commence within 24 hours of the occurrence
of the spill. These government guidelines also stipulate that for all waters "there shall be no
visible sheen after the first 30 days of the occurrence of the spill no matter the extent of the
spill." 157
5.1. REGULATORY CERTIFICATION IS MEANINGLESS
In 2011 the UN Environment Programme published a major scientific study on oil pollution
in Ogoniland. As well as confirming that the area was heavily polluted, the study exposed
numerous serious failures by Shell to clean up oil spills. The UNEP report revealed serious
weaknesses in Shell's clean up and remediation processes; how the company had declared
sites clean which were not; and how regulators had certified sites as cleaned up when they
were still heavily polluted. Amongst the findings of fact in the UNEP report were the
following:
"It is evident from the UNEP field assessment that [the Shell Petroleum Development
Company's] post-oil spill clean-up of contamination does not achieve environmental
standards according with Nigerian legislation, or indeed SPDC's own standards." 158
"Ten out of the 15 investigated sites which SPDC records show as having completed
remediation, still have pollution exceeding the SPDC (and government) remediation closure
values." At eight of these sites the contamination had migrated to groundwater." 159
At 22 out of 33 sites along Shell's pipeline, soil contamination exceeded limits set by
Nigerian law. At five of the sites hydrocarbons were detected in the drinking water of nearby
communities. 160
The clear conclusion of the UNEP report is that Shell has, for years, not cleaned up oil
pollution properly. As a consequence hundreds of thousands of children, men and women
have been exposed to a sustained assault on their human rights to food, water, health and
work, amongst others.
The problem does not appear to have been addressed. In January 2013 an IUCN Panel that
had been asked by Shell to review environmental issues in the Niger Delta found that, once
again, regulators had signed off on a site as cleaned up that was still polluted:
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"in a recently concluded remediation site in Soku, the [Chemicals of Special Concern] levels
were far higher than standards of EGASPIN (2002), even though all the authorities had
signed off on the certificate for a clean bill of health for that site. " 161
In January 2013 that Panel reported on its conclusions which included:
"Based on the observations by the Panel, the current remediation practices in oil impacted
areas in the Niger Delta are not satisfactory. Oil spill responses and remediation are not
implemented fast enough and the methods and regulatory standards for biodiversity and
habitat rehabilitation have not been adequately established. Some of the issues that are not
properly addressed in the current context need a different approach consistent with best
practice in the industry. " 162
The panel also noted that:
"in a recently concluded remediation site in Soku, the [Chemicals of Special Concern] levels
were far higher than standards of EGASPIN (2002), even though all the authorities had
signed off on the certificate for a clean bill of health for that site. " 163
CASE 6: OYA LAKE
On 7 December 2008 there was a major oil spill near Oya Lake in Bayelsa state. The J IV was conducted on 15
and 16 January 2009. 164 Shell has not explained why there was such a long delay in conducting the JIV. The
spill occurred on the same date as another major spill at Bodo in Rivers State - in this case Shell did not
conduct the JIV until February 2009. Again, there is no explanation for the undue delay.
The cause of the spill was recorded as a "hacksaw cut" and the volume of crude oil spilled was recorded as
1,133 barrels. 165 Shell has provided no evidence to substantiate either of these statements.
Amnesty International visited the area in May 2013 with partner NG0, Shareholders Alliance for Corporate
Accountability (SACA) 166 , who have been working with the affected people to get Shell to conduct a clean up at
Oya lake, which remained polluted more than four years later. Researchers interviewed the owner of Oya Lake,
a fisherman whose livelihood was destroyed by the spill. He described how the lake was unusable since the
2008 spill, and how he had struggled to get Shell to clean up. 167
Amnesty International asked Shell to explain why the site was not cleaned up. Shell responded that
remediation work was carried out from 19 March to 4 May 2010, and that the site was certified by regulators
on 31 May 2010. 168
Researchers went to the point where the spill began, which is short walk away through swamp from Oya Lake.
According to men from the community there was a very limited clean up in the immediate vicinity of the spill
point, but that clean up did not reach Oya Lake, despite the fact that the oil had reached the lake. Video
footage of the leak point - taken on an unknown date in January 2009 by a local environmentalist - shows the
oil flow and how it is spreading away from the leak point. 169 US pipeline specialist Accufacts reviewed the
footage and made the following observation: "It is hard to estimate release in flowing water but a more
detailed review of a picture of the failed pipe and an estimate of the time this release was flowing would in all
probability indicted a release much higher than the 1,333 barrels." 170 Amnesty International and SACA are
now requesting the official video footage from Shell.
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Community members say the scope of the clean up only covered the first lake in the vicinity of the spill point,
called Obrun Lake. However, it appears Shell was alerted to the fact that the spill had reached well beyond
this point. Neighbouring communities sent a letter to Shell's offices in Port Harcourt, dated 17 January 2009,
informing them the same spill that polluted Obrun and Oya lakes had reached their swamp, called Ekpeseda.
As far as Amnesty International and SACA are aware these communities did not receive a response.
In February 2013, after pressure from SACA, Shell came to the area to assess Oya Lake for clean up. SACA
reported on this as a positive development on their website. However, when Amnesty International put this to
Shell, the company claimed the February 2013 assessment at Oya Lake was to assess damage caused by other
oil spills. Shell did not specify which spills it meant.
Shell went to Oya Lake in August 2013 and spent a month with swamp buggies cleaning up an area impacted
around the vicinity of the Lake and including the lake itself.
The case of Oya Lake raises serious questions about how clean up is managed in the Niger Delta. Amnesty
5.2 SHELL REDEFINING CLEAN UP?
Shell's website contains the following statements on clean-up of oil spills: "After the J IV,
SPDC's spill response team makes the necessary repairs and recovers as much of the spilled
oil as possible. This is called the clean-up. "171
Amnesty International is concerned that Shell is redefining clean up to mean containment
and recovery, which is only one element of clean up. Amnesty International asked Shell to
explain the information now on its website but the company did not respond.
Amnesty International also asked Agip and Total to explain what they mean by clean up.
Total stated: "In Total E&P Nigeria, our oil spill clean-up process involves the removal of the
free-phased oil in the impacted environment, removal of the contaminated soil /vegetation,
carrying out soil and water analyses to check the level of [hydrocarbon] contamination, and
based on the analyses results launch remediation / treatment of the residual oil in the
impacted area, to achieve the target level of [hydrocarbon] content as specified in the DPR's
EGASPIN 2002 (revised) and the NOSDRA guidelines." 172
Agip stated: "Methods of clean up include manual cleaning, use of mechanical equipment,
low pressure wash, use of sorbents, vacuum skimming as well as deployment of containment
booms, when needed, as safe guard measure during the clean up job. After clean up, a Post
Clean Up Inspection (PCI) is carried out..." 173
Shell's statements on clean up appear therefore to be inconsistent with those of other oil
companies and would appear to suggest the company is re-defining clean up to cover only
minimal action. Amnesty International questioned why Shell has redefined clean up to mean
contain and recover but the company did not respond on this point.
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5.3. REMEDIATION - ANOMALIES IN THE DATA
In addition to the serious issues raised by UNEP, Amnesty International has also assessed
Shell's claims about the number of sites certified as remediated between 1999 and 2006.
This assessment, detailed below, raises serious questions with respect to Shell's claims about
certification of remediation.
Between 1999 and 2006, Shell claimed to have identified 1,516 sites requiring
remediation, and to have remediated 1,338. According to Shell, during 2006, 715 sites were
certified as remediated by the joint certification team, comprising the Federal and State
Ministries of Environment (the procedure before the National Oil Spill Detection and
Response Agency was established). 174 This works out at approximately three certifications per
working day, every day of the year. Amnesty International questioned the credibility of the
figure presented by Shell, given the restrictions on movement in the Niger Delta and Amnesty
International's own interviews with Ministry of Environment officials, during which officials
repeatedly underlined their lack of resources to make site visits.
Although, during an interview at their headquarters in The Hague on 15 September 2008,
Shell conceded that the figure of 715 certification visits by a joint certification team was
questionable, the company declined to provide any explanation. It would appear that the
figure of 715 certifications represents an administrative process, where data submitted to the
regulator is "certified", and the field visits may have taken place in a previous year.
However, even if the 715 visits were made over the preceding three years (2004, 2005 and
2006), the figure is still questionable. It would mean an average of one site visit for every
single working day of each of those three years. Shell has additionally reported that: "[a] joint
certification team comprising the Federal and State Ministries of Environment inspected and
certified 154 sites in 2005, " 175 and "[a] joint certification team comprising the Federal and
State Ministries of Environment inspected and certified 231 sites in 2004. " 176 Given the
limitations of the regulators in the Niger Delta noted above, of which Shell is fully aware, the
number of regulatory certification visits implied by the 2004, 2005 and 2006 figures
(totalling 1,100 over three years) does not seem probable. Amnesty International is
concerned that the certification of remediation of Shell sites may not have involved a site
level inspection and scientific analysis by the regulators in all cases. If this were the case, it
would further underline the major regulator gap in the Niger Delta, and would mean that
communities have no way of checking or receiving assurance that oil companies adequately
clean up pollution. Amnesty is concerned that some of these polluted sites have not been
adequately treated.
Amnesty International also raised with Shell the apparent difference in access to pollution-
affected sites, which their information on remediation implies. Shell has frequently said that
they have difficulty in gaining access to oil spill sites because communities block access.
However, based on their figures for 2000-2006 on sites assessed for remediation (2,699 by
2005), sites actually remediated (1,338) and sites certified (1,126), they appear to have
few, if any, problems accessing sites impacted in the past. Shell did not provide any
explanation for this discrepancy. 177
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CASE 7: THE 2006 SPILL AT I KARA MA
On 31 March 2008, Amnesty International visited Ikarama, to investigate reports of a 2006 oil spill near family
homes that had not been cleaned up. Researchers found that the site resembled a lake of oil and water, and
nearby palm trees appeared to have been badly affected. Researchers took photographs of the site (see
photo). However, when Amnesty International raised the issue of the spill with Shell they said: "without any
shadow of doubt ... the 2006 spill was cleaned". 178
Shell also stated that the 2006 spill had been certified by the government as such. Although Amnesty
International confronted Shell with the photograph seen here the company has never explained how the site
could be classified as cleaned up. This lack of clean up was of particular concern given its proximity to homes
and to children playing. No efforts had been made to secure the site or prevent accidents.
The impact of a 2006 oil spill near Ikarama, taken on 31 March 2008 © Amnesty International
SPILLS AT IKARAMA
At least 100 oil spills have occurred at Ikarama in Bayelsa state since 2007 - from both Agip
and Shell facilities. The impact on local livelihoods is devastating. Women and men
interviewed by Amnesty International in 2013 spoke about the lack of proper clean up, the
damage to their livelihoods and an overall lack of transparency in how oil companies deal
with communities. An NGO based in Bayelsa state has been trying to work with local
communities and oil companies to improve relations. Oil companies frequently claim they
are looking for solutions and dialogue on the problems in the Niger Delta. However, on the
ground, local NGOs and communities can have a hard time getting access to the companies.
In 2013 SACA invited Agip to a stakeholder meeting - the company did not turn up.
Amnesty International has asked Agip why it is not engaging with SACA over the oil pollution
issues at Ikarama. To date Agip has not responded. The failure of companies to engage with
NGOs based in the Niger Delta undermines their claims that international oil companies want
to find solutions to the challenges facing the oil industry in Nigeria.
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CONCLUSIONS AND SOLUTIONS
There are systemic flaws in the system for investigating oil spills in the Niger Delta. As a
result, the outcome of these investigations lacks credibility. Individual cases investigated by
Amnesty International and CEHRD reveal serious discrepancies between the evidence and
the oil companies' claims.
Regulatory certification in relation to oil spill investigations and clean up is all but
meaningless - regulators have certified sites that are polluted as clean, and have signed off
on investigation reports containing incorrect or incomplete data. There is no meaningful
check on the oil companies' operations.
The human rights consequences are serious: thousands of people may have been denied a
just remedy for the impacts of oil spills. Moreover, the lack of transparency around the oil
spill investigation process is one of the factors that contribute to heightened tensions in the
Niger Delta.
With regard to Shell, reviewing all available data this report has built up a picture of a
company whose claims about its environmental impact in the Niger Delta are frequently
untrue. Shell has claimed that the oil spill investigations are sound when they are not, that
sites are cleaned up when they are not, and that the company is transparent when, in reality,
it maintains very tight control over every piece of information - deciding what to disclose and
what to withhold.
This report has also raised serious concerns about the scale of oil spills from Agip's facilities,
which suggest the company is not in control of its operations in the Niger Delta. No company
can defend more than 400 oil spills a year by referring to sabotage and theft.
The existence of serious problems, including oil theft, in the Niger Delta is being used -
primarily by Shell - to divert attention away from the pollution that is due to the aged pipes
and poor maintenance.
Investors need to examine these issues more closely. They need to require verifiable
evidence of the claims being made by companies. They also need to look at the long-term
liability of a company's failure to take more effective action to prevent theft and sabotage.
Nigeria must amend its legislation to address the fact that oil companies face no sanctions
for oil spills so long as they are attributed to sabotage or theft. This situation has permitted a
range of highly damaging practices.
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RECOMMENDATIONS
TO THE GOVERNMENT OF NIGERIA
Substantially strengthen the capacity of NOSDRA, including by providing an increased
budget for its operations.
Amend the law to ensure that individuals and communities receive compensation for oil spills
caused by third party actions in all cases where the operators have not taken effective
measures to prevent such interference with their infrastructure.
Officially confirm the Niger Delta as a High Consequence Area.
Require NOSDRA to establish, as a matter of urgency, a dialogue involving all stakeholders in
the J IV process, to develop a comprehensive and transparent system and uniform reporting
format that takes into account the perspectives of all actors.
Implement the 2012 ECOWAS Court judgement, the recommendations of the 2011 UNEP
report and the 2002 ACHPR recommendation as a matter of urgency.
Take urgent steps to address gender discrimination, including the following:
Explicitly recognise that oil pollution affects different members of the community
differently.
Ensure NOSDRA offices in the Niger Delta are instructed to ensure that women in oil-
affected communities are informed about J IV and clean up processes and enabled to
participate. This will require training and support for NOSDRA field officers.
Ensure processes to identify impacted areas and take full account of who uses the land
and water and for what purposes; this data should inform clean up and compensation
processes.
TO THE NATIONAL ASSEMBLY
Include specific provisions on transparency of oil operations in the Petroleum Industries Bill,
including the following:
■ All JIVs and associated photographs and video footage to be published. Companies
should be required to provide clear, close-up photographs of spill points, clean photographs
of the affected area, and video footage of any oil release. In the event that the company fails
to provide the required basic evidence, financial penalties should be imposed.
■ All certificates of clean up and underlying data to be published.
■ All companies to publish, annually, asset integrity data and to disclose age of
infrastructure and all repairs and replacements.
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■ Companies to take effective action to prevent sabotage and theft with effective penalties
for failure to do so.
Ensure the Petroleum Industries Bill is amended to reflect in full the 2012 ECOWAS court
judgement, the 2011 UNEP recommendations and the 2002 ACHPR recommendations.
End the Department of Petroleum Resources' involvement in all aspects of environmental
oversight of the oil industry.
TO THE OIL COMPANIES
If the international oil companies are committed to finding solutions to the issues in the
Niger Delta they must enable all stakeholders to engage on the issues with the same level of
information. Therefore they should:
Publish all JIVs and associated photographs and video footage; ensure photographs are clear
and provide verifiable evidence of the cause and impacted area; ensure video footage will
enable independent verification of the rate of oil flowing at the time of the J IV where
possible; and publish details of how and when oil flow is stopped or isolated.
Ensure that JIVs are not signed unless all data fields are filled in.
Overhaul the way the volume of oil spilt is calculated, including through the use of best
available technologies and the publication of verifiable evidence.
Ensure that oil flow is always turned off and publish verifiable confirmation that this is done.
Disclose the following information:
Age of all oil infrastructure
Asset integrity status for all infrastructure
All JIVs and associated photographs and video footage for spills since 2000
Significantly improve security monitoring of oil infrastructure to prevent sabotage and theft
and commit to implementing best available technology to prevent spills in the Niger Delta.
As a matter of urgency publish all steps taken, or planned, to prevent sabotage and theft of
oil from facilities.
ADDITIONAL RECOMMENDATIONS TO SHELL
In its response to Amnesty International on 1 November 2013, Shell stated that it "will
continue to find ways to enhance communications and transparency". This commitment is
welcomed and the recommendations above, and below, would greatly aid Shell in fulfilling
this objective. Amnesty International and CEHRD call on Shell to:
Provide verifiable proof when citing illegal refining as a cause of pollution in any specific area
or case. This can include photographs which show when and where refining was taking place
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and the coordinates.
Publish the terms of reference for Bureau Veritas's engagement and details of what Bureau
Veritas has audited, the number of JIVs it has monitored and the recommendations it has
made to Shell. Make the reports that Bureau Veritas compiles when they attend oil spill
investigations public or request Bureau Veritas to do this.
Make public the J IV forms signed during field investigations for comparison with the J IV
forms Shell puts on its corporate website.
Conduct a thorough clean up at Bodo, which is certified by independent evaluators in
agreement with the community and ensure their right to effective remedy is fully respected.
TO INVESTORS IN SHELL
Solutions to oil pollution in the Niger Delta can only be approached meaningfully if all
stakeholders are operating on a level playing field. All stakeholders must have access to the
same information and the ability to challenge past bad practice that undermines trust and
the formulation of future solutions. Investors should ask Shell to:
Implement the recommendations above.
Agree to a joint project with Amnesty International to review all JIVs and associated video
footage and photographs since 2000 with a view to:
Increasing transparency and public trust
■ Identifying and remedying any past inaccuracies and injustices
Clarifying the underlying problems and developing solutions
TO INVESTORS IN ENI/AGIP
Ask the company to:
Act, with urgency, to address the huge number of spills from its infrastructure.
Implement the recommendations above.
Agree to a joint project with Amnesty International to review all JIVs and associated video
footage and photographs since 2000 with a view to:
Increasing transparency and public trust
■ Identifying and remedying any past inaccuracies and injustices
■ Clarifying the underlying problems and developing solutions
TO THE GOVERNMENTS OF THE UK, NETHERLANDS, FRANCE AND ITALY
Increase engagement with and support of the government of Nigeria to ensure independent
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oversight of the oil industry and better access to effective remedy for people whose rights are
adversely affected by oil operations in the Niger Delta.
Offer to assist the government of Nigeria to implement the UNEP report recommendations.
Consider international cooperation to identify and address key obstacles to the
implementation of the UNEP recommendations and pro-actively engage with the government
of Nigeria and oil companies to overcome these obstacles.
Require by law that extractive companies that have their headquarters or are domiciled in
their country undertake human rights due diligence measures in respect of their global
operations, with particular attention to high-risk areas such as the Niger Delta.
TO THE GOVERNMENTS OF THE NETHERLANDS AND ITALY
Convene a review of the operations of Shell and Agip in Nigeria, through a parliamentary or
similar process, which should be public.
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END NOTES
1 Oil spill figures based on data obtained from the National Oil Spill Detection and Response Agency
(NOSDRA) database, Port Harcourt, Nigeria; viewed by Amnesty International delegates on 7 May 2013,
as well as reported data from Shell and Agip. The impact of oil spills on the environment and human
rights is documented in Amnesty International's report, Petroleum, Pollution and Poverty in the Niger
Delta, 30 June 2009, Amnesty International Index: AFR/44/017/2009.
2 Shell claims that both the majority of oil spills and majority of oil spilt (by volume) are due to sabotage
and theft. For example, Shell's 2010 Sustainability report stated: "Sabotage and theft together
accounted for more than 80% of the spill volume from SPDC facilities in 2010." Shell's 2009
Sustainability report stated: "The great majority of oil spills in Nigeria are the result of sabotage or are
caused when thieves drill into pipelines or damage wellhead equipment to steal oil and natural gas
liquids. In 2009 the volume of such spills ... was almost 14,000 tonnes, accounting for 98% of total
SPDC spills volume during the year Shell's Sustainability Reports are available at:
http://www.shell.com/global/aboutshell/investor/financial-information/annual-reports-and-
publications/archive.html .
3 Nigeria Oil Pipelines Act, 1990, Clause 11 (5); See also: The Environmental Guidelines and Standards
for the Petroleum Industry in Nigeria (EGASPIN) Part 8 (B) 8.20.
4 Shell's data is available at: http://www.shell.com.ng/environment-societv/environment-tpkg/oil-
spills.html . The Italian company ENI, whose subsidiary the Nigerian Agip Oil Company, operates in the
Niger Delta, has said it will publish investigations from 2014.
5 An independent oil spill specialist, Accufacts, reviewed the photographic evidence attached to post-
201 1 JIVs and concluded there were weaknesses. This assessment is presented in Chapter 2.The fact
that Shell completes the forms after the field investigation was confirmed by Shell in an interview with
Amnesty International which took place on 7 June 2013 at Shell's London offices.
6 Shell's website states: "Criminal activities including sabotage, oil theft and illegal refining are causing
huge environmental damage in the Niger Delta. From 2008 to 2012, these activities accounted for
around 76% of the oil that escaped from SPDC facilities." See: http://www.shell.com/global/environment-
societv/societv/nigeria/spills.html (last accessed 29 October 2013).
7 Steiner, R. "Double standard: Shell practices in Nigeria compared with international standards to
prevent and control pipeline oil spills and the Deepwater Horizon oil spill", November 2010
8 See for example: UNEP, Environmental Assessment of Ogoniland, August 2011, ISBN: 978-92-807-
3130-9, p 99
9 See: Stakeholder Democracy Network at: http://www. stakeholderdemocracv.org/cgblog/536/89/Are-
Niger-Delta-pipelines-safe-to-operate-Press-statement-on-recent-oil-spill-and-explosion-at-Bodo.html .
Also: Amnesty International and NACGON, Wider investigation into Shell's Nigeria operation needed after
arrest of contractors, 26 June 2013 at: http://www.amnestv.org/en/news/wider-investigation-shells-
nigeria-operation-needed-after-arrest-contractors-2013-06-26 .
10 NOSDRA database, viewed by Amnesty International researchers on 7 May 2013.
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11 Steiner, R. "Double standard: Shell practices in Nigeria compared with international standards to
prevent and control pipeline oil spills and the Deepwater Horizon oil spill", November 2010.
12 See Chapters 2 and 3 of this report.
13 Amnesty International has reviewed JIVs Ikarama, July 2002, SPDC; Kolo Creek, June 2005, SPDC;
Ogboinbari, October 2009, NA0C;0siama, June 2010, NAOC; Ogboinbiki, July 2008, NAOC; Bodo,
August (October) 2008, SPDC; Bodo, December 2008, SPDC; Okordia/lkarama, June 2006, SPDC;
Adibawa/lkarama, June 2006, SPDC; Adibawa/lkarama, July 2006, SPDC; Nkupoku/Kira, May 2007,
SPDC; Mogho, October 2004, SPDC ; Bomu Manifold, April 2009, SPDC; Kira Tai, 2008 SPDC, Oruma,
June 2005, SPDC; Goi, September 2004, SPDC.
14 Amnesty International researchers were allowed to view the NOSDRA database on 7 May 2013. These
data are for oil spills reported and for which a joint investigation was done. The NOSDRA database also
recorded 1 spill for Addax, 13 spills from Chevron, seven for NDPR and one for PPMC.
15 Written response from Agip received on 30 October 2013.
15 Based on data on Shell's website at: : http://www.shell.com/global/environment-
societv/societv/nigeria/spills.html (last viewed on 28 October 2013).
17 Shell, Nigerian Environment Brief, 1995
18 Shell states on its website: Over the past five years, from 2008 to 2012, just under a quarter of the oil
that escaped from SPDC facilities was due to operational causes such as human error or equipment
failure. Criminal activities including sabotage, oil theft and illegal refining are causing huge
environmental damage in the Niger Delta. From 2008 to 2012, these activities accounted for around
76% of the oil that escaped from SPDC facilities. See: http://www.shell.com/global/environment-
societv/societv/nigeria/spills.html (last viewed on 28 October 2013)
19 Nigeria's Department of Petroleum Resources (DPR) has reported that 4,835 oil spill incidents were
recorded between 1976 and 1996, with a loss of 1.8 million barrels of oil to the environment. These
data are based mainly on what companies report to the DPR. According to UNDP, more than 6,800 spills
were recorded between 1976 and 2001, with a loss of approximately 3 million barrels of oil. NOSDRA
has recorded almost 3,000 oil spills in the period between 2007 and 2012.
20 Niger Delta Natural Resources Damage Assessment and Restoration Project, Phase I Scoping Report,
May 2006, conducted by Nigerian Conservation Foundation, WWF UK and International Union for
Conservation of Nature (IUCN), Commission on Environmental, Economic and Social Policy, with Federal
Ministry of Environment (Abuja).
21 For a full discussion on the human rights impact of oil pollution in the Niger Delta, see Amnesty
International's report, Petroleum, Pollution and Poverty in the Niger Delta, 30 June 2009, Amnesty
International Index: AFR/44/017/2009.
22 African Commission on Human and Peoples' Rights, Decision on communication of The Social and
Economic Rights Action Center and the Center for Economic and Social Rights/Nigeria (155/96), para
70. Decision made at the 30th ordinary session of the African Commission of Human and Peoples'
Rights, Banjul, 13-27 October 2001, available at http://wwwl.umn.edu/humanrts/africa/comcases/155-
96b.html
23 African Commission on Human and Peoples' Rights, Decision on communication of The Social and
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Economic Rights Action Center and the Center for Economic and Social Rights/Nigeria (155/96),
decision made at the 30th ordinary session of the African Commission of Human and Peoples' Rights,
Banjul, 13-27 October 2001, available at http://wwwl.umn.edu/humanrts/africa/comcases/155-
96b.html
24 This is documented in detail in Amnesty International's report, Petroleum, Pollution and Poverty in the
Niger Delta, 30 June 2009, Amnesty International Index: AFR/44/0 17/2009.
25 See: UNEP, Environmental Assessment of Ogoniland, 2011.
26 See: Amnesty International, Petroleum, Pollution and Poverty in the Niger Delta, 30 June 2009,
Amnesty International Index: AFR/44/017/2009; Amnesty International and Centre for Environment,
Human Rights and Development, The True Tragedy: Delays and Failures in Tackling Oil Spills in the
Niger Delta, November 2011, AFR/44/018/2011
27 See: http://www.reports-and-materials.org/Complaint-to-ECOWAS-Court-re-Nigeria-oil-pollution-25-Jul-
2009.doc
28 This is sometimes referred to as the Joint Investigation Team (JIT) report.
29 Oil Pipelines Act, 1990, Clause 11 (5). Also, the Environmental Guidelines and Standards for the
Petroleum Industry in Nigeria (EGASPIN) state: "A spiller shall be liable for damages from a spill for
which he is responsible" (Part 8 (B) 8.20).
30 The Oil Pipelines Act of 1990 provides for compensation based on negotiation between the oil
company and individuals or communities affected by oil spill. This practice is extremely problematic - a
fuller discussion is contained in Amnesty International's report, Petroleum, Pollution and Poverty in the
Niger Delta, 30 June 2009, Amnesty International Index: AFR/44/017/2009
31 Based on the dates recorded on most J IV forms seen by Amnesty International; companies often refer
to delays in access to sites caused by communities. However, other evidence calls this claim into
question, including the interaction witnesses by Amnesty International in the Rivers State NOSDRA
office, where the text message received by the NOSDRA Director made no reference to access issues.
This was also noted by UNEP in its Environmental Assessment of Ogoniland, August 201 1, ISBN: 978-
92-807-3130-9, p 151.
32 Department of Petroleum Resources, Environmental Guidelines and Standards for the Petroleum
Industry in Nigeria (EGASPIN), revised edition 2002, pl48, para 2.6.3.
33 UNEP, Environmental Assessment of Ogoniland, August 2011, ISBN: 978-92-807-3130-9, p. 139.
34 Interview with NOSDRA Zonal Director, Rivers State, at NOSDRA offices, 7 May 2013. In an interview
with Total at their offices in Port Harcourt on 9 May 2013, company staff stated that the o'clock position
was not a reliable tool.
35 Interview with representative of Rivers State Ministry of Environment, 7 May 2013.
36 See: https://adam. amnesty. org/asset-bank/action/viewAsset?id=82268
37 World Bank, Defining an Environmental Development Strategy for the Niger Delta, 25 May 1995, Vol
II, Industry and Energy Operations Division West Central Africa Department; UNDP Niger Delta Human
Development Report, 2006; UNEP, Environmental Assessment of Ogoniland, August 2011, ISBN: 978-
92-807-3130-9.
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38 Niger Delta Human Development Report, 2006
39 UNEP, Environmental Assessment of Ogoniland, August 2011, ISBN: 978-92-807-3130-9, p 140.
40 UNEP, Environmental Assessment of Ogoniland, August 2011, ISBN: 978-92-807-3130-9, p 139.
41 Based on interviews with Total, 9 May 2013 in Port Harcourt, Shell on 7 June 2013 in London and
written responses received from NAOC on 26 June 2013.
42 This was described by spill-affected communities, by Shell contractors interviewed by Amnesty
International and by regulators. Interviews conducted in April 2008 and April/May 2013
43 Interview with the Managing Director of Shell Petroleum Development Company of Nigeria, Shell
Headquarters, London, 7 June 2013.
44 Report prepared by Accufacts for Amnesty International, September 2013.
45 Report prepared by Accufacts for Amnesty International, September 2013
46 Interviews with oil-affected communities and with NGOs working on oil pollution in the Niger Delta,
April 2008 and May 2013.
47 Interview with River State Zonal Director of NOSDRA, Port Harcourt, Nigerian, 7 May 2013.
48 Amnesty International viewed the electronic record of the Bodo spill at the NOSDRA office on 7 May
2013 and the written records at the Rivers State Ministry of Environment, also on 7 May 2013. Both
give 28 August as the date the spill began. NOSDRA's database shows no spill on 5 October.
49 Interview with man present when spill occurred; interview conducted in Yenagoa, Bayelsa, 8 May
2013.
50 Forms can be seen at: http://www.shell.com.ng/environment-society/environment-tpkg/oil-spills.html
51 Interview with the Managing Director of Shell Petroleum Development Company of Nigeria, Shell
Headquarters, London, 7 June 2013.
52 Interview with the Managing Director of Shell Petroleum Development Company of Nigeria, Shell
Headquarters, London, 7 June 2013.
53 The letter is seen on the video documentary, which can be viewed at https://adam.amnestv.org/asset-
bank/action/viewAsset?id=82268
54 Interviews with Father Kevin O'Hara, who worked at that time with the Center for Social and Corporate
Responsibility in Rivers State at that time, 6 and 9 April 2009.
55 G. J. Frynas, "Legal Change in Africa, "Evidence from oil-related litigation in Nigeria", Journal of
African Law, Vol 43, No. 2 (1999), pl28.
56 Shell v. Isaiah, (1997) 6 NWLR (pt. 508) 263.
57 Interview with River State Zonal Director of NOSDRA, Port Harcourt, Nigerian, 7 May 2013.
58 Written response from Agip to Amnesty International, received on 26 June 2013.
59 Interviews with Total on 9 May 2013 in their offices in Port Harcourt, Rivers State, Niger Delta and
with Shell on 7 June 2013 in their London offices.
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60 Ikarama, July 2002, SPDC; Kolo Creek, June 2005, SPDC; Ogboinbari, October 2009, NAOC ; Osiama,
June 2010, NAOC; Ogboinbiki, July 2008, NAOC; Bodo, August (October) 2008, SPDC; Bodo,
December 2008, SPDC; Okordia/lkarama, June 2006, SPDC; Adibawa/lkarama, June 2006, SPDC;
Adibawa/lkarama, July 2006, SPDC; Nkupoku/Kira, May 2007, SPDC; Mogho, October 2004,
SPDC ; Bomu Manifold, April 2009, SPDC; Kira Tai, 2008 SPDC, Oruma, June 2005, SPDC; Goi,
September 2004, SPDC.
61 Accufacts review of Shell JIVs commissioned by Amnesty International, October 2013.
62 JIV reference: 810919
63 Accufacts review of specific post-2011 JIV documents, prepared for Amnesty International, October
2013.
64 JIV reference: 981063
65 Accufacts review of specific post-2011 JIV documents, prepared for Amnesty International, October
2013.
66 Accufacts report on JIV process, prepared for Amnesty International, September 2013.
67 Written response from Agip received on 30 October 2013.
68 Accufacts report on JIV process, prepared for Amnesty International, September 2013.
69 Interview with Total, Port Harcourt, Niger Delta, 9 May 2013.
70 Reported to Amnesty International by witnesses who were at the site at the time, July 2012.
71 See: Amnesty International and the Centre for Environment, Human Rights and Development
(CEHRD), Another Bodo Oil Spill, Another Flawed Oil Spill Investigation in the Niger Delta (Index: AFR
44/037/2012)
72 Email communication with Accufacts, 9 July 2012
73 Email communication with Shell, 10 July 2012
74 Footnote to the emails to and from Shell
75 Email from Shell to Amnesty International, 12 August 2013.
76 Email from Shell dated 12 August 2013.
77 Accufacts report on JIV process, prepared for Amnesty International, September 2013.
78 Amnesty International interview with Rivers State Zonal Director of NOSDRA, 7 May 2013, Port
Harcourt.
79 Interviews with oil-affected communities, Niger Delta between 2008 and 2013 conducted by Amnesty
International and CEHRD; interviews with NGOs working with oil-affected communities, May 2013.
80 Interview with the Managing Director of Shell Petroleum Development Company of Nigeria, Shell
Headquarters, London, 7 June 2013.
81 Written response from Agip to Amnesty International, received on 26 June 2013.
82 In the more recent (post 2011) JIV reports, greater detail is included including GPS coordinates.
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83 Not all J IV reports provide sufficient detail as to how the volume of oil spilled was determined, both on
the surface, as well as in the ground or underwater. Depending on the surface terrain, the depth of the
oil on the ground surface can be off by a very wide margin. For oil that has penetrated the soil,
considerable oil can be below the surface depending on the soil average assumed porosity. For spills
involving water, especially flowing water, a water emulsification factor, akin to a depth guestimate or
assumption, can also cause considerable variation in quantity spilled estimates.
84 Ruptures tend to be larger opening higher rate oil releases whose large openings (occurring in
microseconds) are usually influenced by the defect size and pipe stress levels. Leaks tend to be much
lower rate releases whose openings (holes or cracks) stay relatively fixed upon failure.
85 Accufacts report prepared for Amnesty International, September 2013.
86 This case has been reported on by Friends of the Earth Netherlands. See:
http://www.milieudefensie.nl/english/shell/oil-leaks/courtcase
87 See: http://www.milieudefensie.nl/english/shell/oil-leaks/courtcase
88 District Court of the Hague, C/09/337058 / HA ZA 09-1581
89 Each of these JIVs is available at [add web link].
90 Reference # 2004/SAR/163
91 Reference # 2010/SAR/082
92 Reference # 2013/LAR/059/1 14
93 Reference # 2013/LAR/076
94 Written response from Agip received on 30 October 2013.
95 Shell has confirmed that the Bodo volume is the number recorded in the field. See: Nigeria: Shell
Responds to Al's Criticisms Over Niger Delta Oil Spills allafrica.com/stories/201204240911.html.
95 Email from Total to Amnesty International, 17 October 2013.
97 From B, sample shared by Total in an email to Amnesty International on 23 May 2013.
98 Written response from Agip received on 30 October 2013.
99 Email from Total to Amnesty International, 17 October 2013.
100 Accufacts report on J IV process, prepared for Amnesty International, September 2013.
101 Katsouris, C. and Sayne, A. Nigeria's Criminal Crude: International Options to Combat the Export of
Stolen Oil, Chatham House, September 2013, ISBN 978 1 86203 295 8.
102 Shell, Nigerian Environment Brief, 1995
103 Email from Shell to Amnesty International, 1 November 2013.
104 ENI, Answers to the questions received prior to the Shareholders' Meeting, pursuant to art.l27-ter of
Italian Legislative Decree n. 58/1998, p. 19
105 Interview with the Managing Director of Shell Petroleum Development Company of Nigeria, Shell
Headquarters, London, 7 June 2013. Mr Sunmonu stated that "stations producing into the line shut
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Oil spill investigations in the Niger Delta
down; the 'whole line' shuts. There are also "false shutdowns" due to theft - i.e., where the pressure
drops because oil is being siphoned off (Crude oil thieves)."
106 Amnesty International and CEHRD, The True Tragedy, Delays and Failures in Tackling Oil Spills in
the Niger Delta, November 2011. Amnesty International Index No: AFR/44/018/2011.
107 Fuller details on this issue are contained in Amnesty International and CEHRD, The True Tragedy,
Delays and Failures in Tackling Oil Spills in the Niger Delta, November 2011. Amnesty International
Index No: AFR/44/018/2011.
108 Interview with a group of women living in oil-impacted villages in Ikarama, Bayelsa State, 8 May
2013.
109 Interview with Oruma community leaders, 8 May 2013.
110 District Court of the Hague, Final Judgement C/09/337058 / HA ZA 09-1581 and C/09/365482 HA
ZA 10-1665.
111 District Court of the Hague, C/09/337058 / HA ZA 09-1581
112 Accufacts report prepared for Amnesty International, October 2013.
113 Email from Shell to Amnesty International, 1 November 2013.
114 See: http://reports.shell.com/sustainabilitv-
report/2011/ouractivities/deliveringenergyresponsiblv/nigeria.html (last accessed on 28 October 2013)
115 This oil spill is described in detail in a joint report by Amnesty International and CEHRD, The True
Tragedy, Delays and Failures in Tackling Oil Spills in the Niger Delta, November 201 1. Amnesty
International Index No: AFR/44/018/2011.
116 Amnesty International and Centre for Environment, Human Rights and Development, The True
Tragedy: Delays and Failures in Tackling Oil Spills in the Niger Delta, November 201 1 ,
AFR/44/018/2011.
117 Leigh Day, "Litigation continues as 'deeply disappointing' Nigerian oil spill talks collapse", 13
September 2013. See: http://www.leighdav.co.uk/News/2013/September-2013/Shell-Litigation-
continues
118 Letter from Managing Director of SPDC to the UK Financial Times on 22 March 2012. See:
http://www.shell.com.ng/environment-society/our-response/mutius-letter.html
119 Amnesty International wrote to DPR and NOSDRA on 14 July 2011, requesting a reaction by 30 July
2011. Two reminders were sent on 10 August and 12 September 2011. NOSDRA replied on 16
September 2011; the DPR did not reply. Under the Freedom of Information Act, a reaction should be
given within seven days; if the DPR refused to give access to information or needed more time, it should
have given notice.
120 Three Amnesty International delegates reviewed the hand-written ledger at the State Ministry of
Environment offices on 7 May 2013.
121 Email communication with Sue Lloyd Roberts of the BBC who covered the case in a report on the
Niger Delta in 2008.
122 Amnesty International Press Release, Shell's wildly inaccurate reporting of Niger Delta oil spill
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Oil spill investigations in the Niger Delta
exposed, 23 April 2012. See: http://www.amnesty.org/en/news/shell-s-wildly-inaccurate-reporting-niger-
delta-oil-spill-exposed-2012-04-23.
123 Email communication with Sue Lloyd Roberts of the BBC who covered the case in a report on the
Niger Delta in 2008.
124 Shell statements made during a TV debate on the issues in Norway on the NRK channel on 21
October 2012.
125 Email communication with Sue Lloyd Roberts of the BBC, who covered the case in a report on the
Niger Delta in 2008. The emails quoted from Shell are from December 2008.
126 Email from Shell! to Amnesty International, 20 April 2012.
127 The first time this claim was made to Amnesty International was during a televised debate in Norway
on NRK on 21 October 2012 (debate aired on 22 October).
128 Accufacts assessment of Bodo August 2008 oil flow video, prepared for Amnesty International on 11
March 2012.
129 Calculations based on days of full oil flow between 28 August and 5 October and three further days of
flow which is based on Shell's statements. Additionally, even when the oil flow is turned off, it would
continue to flow for some time and these figures do not include this flow so would underestimate the
total.
130 Interview with Kpoobari Patta, President of the Bodo Youth Council, May 2011.
131 Amnesty International and Centre for Environment, Human Rights and Development, The True
Tragedy: Delays and Failures in Tackling Oil Spills in the Niger Delta, November 201 1 ,
AFR/44/018/2011.
132 Communication from Shell's International Relations Manager to Amnesty International Italy, 16
February 2012.
133 Email from Shell to Amnesty International on 30 May 2012
134 Communication from Shell's International Relations Manager to Amnesty International Italy, 16
February 2012.
135 Letter from Managing Director of SPDC to the UK Financial Times on 22 March 2012. See:
http://www.shell.com.ng/environment-society/our-response/mutius-letter.html
136 Water quality of Bodo Creek in the lower Niger Delta Basin, Advances in environmental Biology
(2008) 2, 132 -136, ; Population structure, biomass and production of West African lucinid Keletistes
rhixoecus (Bivalvia, Mollusca) in Sivibilagbara swamp at Bodo Creek, Niger Delta, Hydrobiolgia (2010)
645: 193-203.
137 These images and the other satellite images referred to in this report were obtained by Amnesty
International and analyzed by the Geospatial Technologies and Human Rights Project of the American
Association for the Advancement of Science (AAAS).
138 Mineral Oils (Safety) Regulations 1962, Regulation 7.
139 United Nations Development Programme (UNDP), Niger Delta Human Development Report, 2006,
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Oil spill investigations in the Niger Delta
p74.
140 Steiner, R., report on behalf of Friends of the Earth Netherlands "Double standard, Shell practices in
Nigeria compared with international standards to prevent and control pipeline oil spills and the
Deepwater Horizon oil spilT, November 2010, < http://milieudefensie.nl/publicaties/rapporten/double-
standard .
141 UNEP, Environmental Assessment of Ogoniland, August 2011, ISBN: 978-92-807-3130-9, pp 99-
100.
142 UNEP, Environmental Assessment of Ogoniland, August 2011, ISBN: 978-92-807-3130-9, p 99.
143 UNEP, Environmental Assessment of Ogoniland, August 2011, ISBN: 978-92-807-3130-9, p 100.
144 UNEP, Environmental Assessment of Ogoniland, August 2011, ISBN: 978-92-807-3130-9, p 99.
145 ENI, Answers to the questions received prior to the Shareholders' Meeting, pursuant to art.l27-ter of
Italian Legislative Decree n. 58/1998, p. 17.
146 Written response from Agip received on 30 October 2013.
147 SPDC, Nigeria Brief, The Environment, 1995.
148 SPDC, Nigeria Brief, The Environment, 1995.
149 An interview with Nigeria Country Chair, Basil Omiyi by Roger Hammond. See:
http://sustainabilitvreport.shell.com/2006/workinginchallenginglocations/nigeria.html
150 District Court of Amsterdam, C/09/337058 / HA ZA 09-1581 and C/09/365482 HA ZA 10-1665
151 Nigeria: Pipeline Expert Says 73 Percent Of Niger Delta Pipelines Need Replacement, Cause Spills,
Consulate Lagos (Nigeria), 17 December 2008
152 See for example: BP, "the Baku-Tbilisi-Ceyhan (BTC) pipeline",
< http://www.bp.com/sectiongenericarticle.do?categorvld=16002865&contentld=7020378 >
Norwegian Petroleum Directorate, "Pipelines and onshore facilities",
http://www.npd.no/en/Publications/Facts/Facts-2010/Chapter-15 .
Andrew Palmer, research professor in petroleum engineering at Cambridge University, quoted in 2004
Christian Aid, report "Behind the mask, The real face of corporate social responsibility", January 2004,
<http://www.scribd.com/doc/38236692/Behind-the-Mask>
153 "As a result of deterioration in the integrity of the existing trunkline, occasioned by the harsh Niger
Delta environment, vandalisation and severe age-related deterioration, the project was initiated to
improve, modernize and restore the technical integrity of the facilities." Source, website content
contractor Nestoil as quoted in the following report: Richard Steiner, report on behalf of Friends of the
Earth Netherlands "Double standard, Shell practices in Nigeria compared with international standards to
prevent and control pipeline oil spills and the Deepwater Horizon oil spill", November 2010,
< http://milieudefensie.nl/publicaties/rapporten/double-standard >
Information is no longer on the website of Nestoil, but similar sentences can be found in: Pipelines
International, "Maintaining Nigeria's pipeline integrity", December 2010,
< http://pipelinesinternational.com/news/maintaining nigerias pipeline integritv/053581 >
154 ENI, Answers to the questions received prior to the Shareholders' Meeting, pursuant to art.l27-ter of
Italian Legislative Decree n. 58/1998, p. 18
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155 This Day, "Presidency Accuses lOCs of Complicity in Oil Theft", 18 July 2013.
156 This Day, "Presidency accuses lOCs of Complicity in Oil Theft", 18 july 2013.
157 Department of Petroleum Resources, Environmental Guidelines and Standards for the Petroleum
Industry in Nigeria (EGASPIN), revised edition 2002, pl50, para 2.11.3 (i).
158 UNEP, Environmental Assessment of Ogoniland, August 2011, ISBN: 978-92-807-3130-9, p 150.
159 UNEP, Environmental Assessment of Ogoniland, August 2011, ISBN: 978-92-807-3130-9, p 12.
160 UNEP, Environmental Assessment of Ogoniland, August 2011, ISBN: 978-92-807-3130-9, p 112.
161 A report by the independent IUCN - Niger Delta Panel (IUCNNDP) to the Shell Petroleum
Development Company of Nigeria Ltd (SPDC), January 2013, p 4.
162 A report by the independent IUCN - Niger Delta Panel (IUCNNDP) to the Shell Petroleum
Development Company of Nigeria Ltd (SPDC), January 2013, p 4.
153 A report by the independent IUCN - Niger Delta Panel (IUCNNDP) to the Shell Petroleum
Development Company of Nigeria Ltd (SPDC), January 2013, p 4.
164 Email from Shell to Amnesty International, 12 August 2013.
165 Email from Shell to Amnesty International, 12 August 2013.
166 See http://www.shareholdersalliance.com/projects.
167 Interview with fisherman at Oya Lake, 8 May 2013.
168 Shell email to Amnesty International, 12 August 2013.
169 Available on YouTube: http://www.voutube.com/watch?v=xdOvsAwlsEA
170 Email correspondence with Accufacts, 3 November 2013.
171 Shell website at: http://www.shell.com.ng/environment-societv/environment-tpkg/oil-spills.html (last
acessed on 3 November 2013)
172 Email from Total to Amnesty International, 17 October 2013.
173 Written response from Agip to Amnesty International, 30 October 2013.
174 SPDC, People and the Environment Report, 2006.
175 SPDC, People and the Environment Report, 2005.
176 SPDC, People and the Environment Report, 2004.
177 Interview with Shell representatives, Shell Headquarters, The Hague, Netherlands, 15 September
2008.
178 Interview with Shell representatives, Shell Headquarters, The Hague, Netherlands, 15 September
2008
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