…. As Environmental Permit Rubbishes Kosmos’ Response to 400bn Fine

Kosmos Energy, one of the operators in Ghana’s oil fields, has been exposed in a cover-up of its negligent spill of a total of 706 barrels of toxic substances into the country’s marine waters, which instigated the government of Ghana to impose a fine of GH¢40 million (¢400 billion) on the company.

But the American oil giant has since rubbished the fine as “totally, unlawful, unconstitutional, ultra vires and without basis” in an audacious letter to the government, even though the permit issued by the government to Kosmos to work in the country’s oil fields indicates that fines will be imposed in the event of negligence and violation of the permit’s conditions.

Kosmos, in its bid to conceal evidence of its negligent spill of toxic substances into the country’s marine waters, deliberately and almost immediately took water column samples to the USA for testing when there are science laboratories in the country which have the capacity to do same. Additionally, the samples were taken in the absence of officials of the Environmental Protection Agency (EPA).

According to Kosmos, the results of its independent testing in the USA showed that what was spilled by the company did not contain toxic substances that could harm the environment. However, the ministerial committee tasked to investigate the spill rejected Kosmos’ claims.

Subsequently, Kosmos elected to have SGS Laboratory, based here in the country, carry out test on water column samples one month after the spill occurred on December, 26, 2009 when the company was very much aware that the appropriate samples for the test should have been sediments.

It is pertinent to note that, at the time the SGS Laboratory carried out its test on January 22, this year, the appropriate sample should have been from sediments, and not the water column, since the insoluble heavy metals would have settled to the sea bed through the water column.

Dr. Elvis Nyarko, a marine pollution and chemical oceanography expert of the Department of Oceanography and Fisheries of the University of Ghana, further exposed Kosmos’ deliberate concealment of evidence in its negligent spill of toxic substances into the country’s marine waters.

Speaking in an interview with The Enquirer, Dr. Nyarko, who made a presentation to the committee on trace metals concentration in deep sea sediments from the Jubilee oil field, noted that the company’s methodology for the test was procedurally and scientifically flawed.

He noted that the right thing for Kosmos to have done was to take replicate samples of both water columns and sediments, some of which should have been given to the EPA for analysis, while the company does its analysis on the same sample.

Dr. Nyarko said, “If indeed they wanted to be transparent or allay our fears, they should have given replicate samples to the EPA and the Oceanography and Fisheries Department, who have the capabilities to assess chemical contamination in the marine environment.” Further, he pointed out that Kosmos did not clarify where the company picked its water samples from, that is whether it was from the surface, middle or bottom of the ocean, saying that the source of the sample is vital to the outcome of the laboratory analysis.

He continued that for nothing at all, the taking of samples for analysis, should have most importantly included sediment samples which normally will store contaminants after they have fallen onto the sea bed through the water column. But Kosmos ignored this, knowing very well that is the best practice which is internationally accepted.

In a related development, Kosmos, in order to guarantee that the Aban Abraham rig that was involved in the spill is not physically inspected, ensured that the vessel vacated the shore of Ghana immediately after the incident. In spite of this blatant cover-up, Kosmos, in a letter to the government, a copy of which The Enquirer intercepted from the offices of the lawyers of the company, Bentsi-Enchill, Letsa & Ankomah, asked the Attorney-General to use her “best offices and endeavours to halt a process that legally and procedurally is fatally flawed.”

It also stated that “we hope that upon all due consideration of these legal flaws, you will intervene decisively and bring this lawless procedure to an end.”

Kosmos’ daring letter was in response to a letter written by the Minister of Environment, Science and Technology (MEST), dated August 3, 2010, to the company, imposing the ¢400 billion fine on it, for ‘negligently’ spilling toxic substances into the marine waters of the country.

Though Kosmos has rubbished the authority of the minister and for that matter the government, for imposing such a fine on the company, it cooperated with the work of the committee that recommended the fine, and admitted wrong doing before the committee and even apologized. One wonders when Kosmos learnt that the committee has no legal basis to impose a fine.

Kosmos stated in its letter that “The Minister has no power under the constitution or any other law of Ghana to impose a fine on any person in the event of an oil spillage. Under the constitution, Ministers of the Republic of Ghana are officers appointed by the President to exercise executive authority on his behalf. Penal measures are not within their province in the absence of express provisions of law.”

It added, “There is no Ghana law that confers powers of conviction and punishment for environmental offences upon the minister.” Within a period of five months, between December 2009 and May 2010, Kosmos, on three different occasions, discharged Low Toxicity Oil Based Mud (LTOBM) into the marine waters of Ghana. The first incident occurred on the Aban Abraham Rig, the second and the third incident occurred on the Atwood Hunter Rig. On December 26, last year, the Aban Abraham drilling rig, working for Kosmos Energy HC, spilled an estimated 698 barrels of the toxic during transfer of drilling fluid to a support vessel offshore in the Gulf of Guinea. A second discharge of drilling fluid involving seven barrels occurred on the Atwood Hunter on March 23, this year. The Minister of Environment, Science and Technology set up a committee per letter No. MEST/GA/16, dated 30th March, 2010 to, inter alia, investigate the two incidents. While the committee’s work was in progress, a third spill occurred at the Atwood Hunter on May 26, this year. According to Kosmos, the rig spilled an estimated one barrel of LTOBM fluid from the split joint packer at the moon pool area of the rig.

The committee, chaired by the Deputy Minister of Environment, Science and Technology, Dr. Edward Kofi Omane Boamah, made findings that the Aban Abraham incident was attributable to negligence.

Also, it noted that the first Atwood Hunter incident was due to negligence because of Kosmos’ failure to adhere to planned preventive maintenance. In conclusion, the committee cited management lapses, coupled with negligence on the part of Kosmos Energy, as being responsible for the Aban Abraham incident, adding that the handling of matters related to the Aban Abraham incident by the company amounted to concealment.

The committee continued that Kosmos Energy was in breach of its obligation to ensure that the right procedure and necessary safeguards were in place to minimize any risk of accidental spillage of this magnitude.

It said Kosmos Energy was liable, as due care was not taken to avoid such a huge discharge at this early stage of commercial drilling in Ghana.

“The first Atwood Hunter incident occurred as a result of Kosmos Energy deferring their preventive maintenance schedule,” the committee noted in its report, a copy of which is in the possession of The Enquirer.

Finally, the committee recommended that Kosmos Energy should pay a fine of GH¢40 million (¢400billion).

It added that proceeds from the fine should be allocated as follows: Coastal Zone Development Programme - 50%; Environmental Protection Agency-20%; Ministry of Environment, Science and Technology - 10%; Ghana Maritime Authority -10%; and Research -10%.