There is more awareness today about the impact of human activity on the environment than there ever was in the history of mankind. The production, conversion and use of energy is recognized as one of the major contributing factors to environmental degradation, including atmospheric pollution, land degradation and global warming. To address these concerns, the Government of Kenya enacted the Environmental Management and Co-ordination Act, 1999, (EMCA 1999) which is framework legislation for the sustainable management of environmental and natural resources. The EMCA 1999 recognizes the role of lead agencies in protection of the environment. Lead agencies are defined as “any government ministry, department, parastatal, state corporation or local authority, in which any law vests the functions of control or management of any element of the environment or natural resource”. In this respect therefore the Energy Regulatory Commission (ERC) is a lead agency in the energy sector since the Energy Act No. 12 of 2006 empowers it in Section 6(c) to “formulate, enforce and review environmental, health, safety and quality standards for the energy sector, in coordination with other statutory authorities”.
The instruments for achieving this as envisaged in the Act are essentially “Command and Control” types such as Licenses, Permits e.g. for construction and Power Purchase Agreements incorporating conditions requiring operators to comply with environmental standards and regulations. In granting or rejecting applications for licences, the Energy Act No. 12 of 2006 in Sections 30 and 90 requires the Commission to consider among others, the need to protect the environment, conserve natural resources, and protect the health and safety of workers, service users and the public at large. In particular compliance with EMCA 1999, environmental regulations and other relevant legislation, e.g. on occupational health and safety is considered. Therefore in executing its mandate the Commission regularly monitors the performance of licensees vis-ŕ-vis the performance standards stipulated in their respective licenses.
Section 98(1) requires petroleum business operators to comply with the relevant Kenya Standard and in the absence of such standard any international standard approved by the Commission from time to time on environment, health and safety in consultation with the relevant authorities and in conformity with the relevant statute. Sections 40 and 99 require a licensee not to use or employ any mode, material or apparatus other than that which complies with specifications prescribed by the Kenya Bureau of Standards. Where no such standards exist, the Act specifies that any International Standard approved by Kenya Bureau of Standards, or any other prescribed by the Board may be used.
ERC is currently in the process of drafting regulations, rules, procedures and operational guidelines, for the energy sector through a consultancy supported by the Energy Sector Recovery Project funded by the World Bank. This will set the framework for the establishment of industry performance standards as well as enforcement mechanisms and appropriate penalties to ensure compliance.
Under the EMCA 1999, The National Environmental Management Authority (NEMA) has gazetted several regulations. These are Environmental (Impact Assessment and Audit) Regulations, 2003, Legal Notice No. 101, Environmental Management and Coordination (Water Quality) Regulations, 2006 Legal Notice No. 120, Environmental Management and Coordination (Waste Management) Regulations, 2006 Legal Notice No. 121, Environmental Management and Coordination (Conservation of Biological Diversity and Resources, Access to Genetic Resources and Benefit Sharing.) Regulations, 2006 Legal Notice No. 160. The Commission relies on these regulations and the Environment, Health and Safety Policy for the Electricity Sub sector to monitor operators’ performance with respect to environmental protection. The policy sets out monitoring protocols for different power generating technologies for the purposes of environmental protection. Where there are no regulations, rules, procedures, standards and operational guidelines such as on air quality ERC relies on alternatives as provided for in the Act. The main alternatives in use can be found in the guidelines provided in the World Bank’s Pollution Prevention and Abatement Handbook 1998: Toward Cleaner Production (I). This contains guidelines on such aspects as emissions and noise levels, among others. The Commission also relies on generally accepted international best practice in enforcing compliance. However, draft regulations on air quality and noise levels have been developed by NEMA through a consultative process and are now awaiting gazettement.
With respect to occupational health and safety, several regulations have been developed under the Factories and Other Places of Work Act Cap 514. This Act has since been repealed and replaced with the Occupational Safety and Health Act No. 15 of 2007. However, the regulations are still in force until specifically repealed under the new Act. The regulations which the Commission uses to assess compliance with regard to occupational safety and health of workers, include the Factories and Other Places of Work (Safety and Health Committee) Rules, 2004 Legal Notice No. 31, the Factories and Other Places of Work (Medical Examination) Rules, 2005 Legal Notice No. 24, the Factories and Other Places of Work (Noise Prevention and Control) Rules, 2005, Legal Notice No. 25, the Factories and Other Places of Work (Fire Risk Reduction) Rules, 2007 Legal Notice No. 59, the Factories and Other Places of Work (Hazardous Substances) Rules, 2007 Legal Notice No. 60.
In the year 2002, a study was
commissioned, which, among other things documented the environmental, health and
safety performance of the then existing power plants in