PROVISIONS WITH REGARD TO THE MANAGEMENT OF HAZARDOUS CHEMICALS THAT ARE PROVIDED IN ENVIRONMENAL MANAGEMENT AND COORDINATION ACT
The EMCA has introduced what is in effect is a parallel system for managing hazardous chemicals and hazardous waste. Section 91 provides the characteristics of hazard. The Act provides that hazardous waste and substances and chemicals shall not be imported into Kenya or exported from Kenya or transported through Kenya without a valid permit issued by the authority (NEMA). Where the wastes are being exported from Kenya the written consent of the receiving country must also be obtained. This is a requirement under the Basel Convention on the transboundary movement of hazardous waste, it is a 1989 convention and it imposes a system which is known as prior informed consent requirement. The requirement is a requirement that the importing country must give its prior consent before the import is undertaken. The catch is that the consent must be informed and for the consent to be informed the exporting country must disclose the nature of the substance being exported. (Kenya has not ratified the Basel Convention only 10 African Countries ratified this convention this is because African countries took the view that they will never get informed consent from the developed world and what they give will not be free consent, and even if informed consent is given, it will be too technical they will not understand it. Africans went ahead and signed the Bamako convention which says that hazardous material cannot be imported into African but they say it can be moved as between the African countries.
Under Section 93 the Act prohibits the discharge of hazardous substances or chemicals into any waters or other segments of the environment. A person who is responsible for the discharge shall pay the cost of removing the substance or chemicals including the cost incurred by the government in restoring the environment which has been damaged.
Under Section 94 the Authority is required to establish standards relating to pesticides and other chemicals and those standards shall define the concentration of pesticide residues in raw agricultural commodities, processed foods and animal feeds. Raw agricultural commodities include fresh foods and vegetables, eggs, raw milk, meat and other agricultural produce. At the moment in Kenya these standards have not been included in any statutes. It is important to establish standards and when the standards are established they shall be enforced by the Authority in respect of all produce. The Authority requires to constantly collect data on pesticide residues. At the moment there is not system for dealing with this problem.
Section 95 imposes a requirement for registration of pesticides and toxic substances and it says that any person who intends to manufacture, import or process a new pesticide or toxic must apply to the authority for registration. At the moment this registration process to be administered by NEMA is the exact parallel of the Pest Product Control Act so there is double registration requirement. In the end this should be resolved in favour of NEMA recognizing the registration that has been granted by the Pest Product Control Act.
Under the Act where pesticide is registered, it shall be registered for a period of 10 years. It is an offence to distribute, sell, import or receive any unregistered pesticide or toxic substances. A person who contravenes this section shall be liable to a fine of 1 million shillings or imprisonment for 2 years or both. Additionally the authority is allowed to seize the product and destroy it.
Finally the Act imposes a requirement with regard to the disposal of motor oil. Motor oil is another environmental problem. The mechanics tend to empty motor oil everywhere without a care while motor oil is an extreme pollutant. The Act provides that Motor Oil is to be treated as a hazardous substance and shall be disposed off through a licensed waste management facility. Basically the operator or owner of the motor vehicle or vessel from which the discharge of oil or a mixture containing oil into the environment occurs shall
1. Immediately give notice to the authority;
2. Immediately begin cleaning up using the best available cleanup methods and comply with directions given by the authority;
Where the owner or operator fails to take any of those steps, the authority may seize the motor vehicle and dispose of it to meet the cost of clean-up.