In particular, existing laws may require amendment and/or supplement. Moreover, the responsibilities of the environmental agency and nuclear regulatory body, in environmental oversight of NPPs will need to be legally defined in order to prevent overlapping of responsibilities and to minimize the potential for project delay.
Trang 1Contents lists available atScienceDirect Progress in Nuclear Energy journal homepage:www.elsevier.com/locate/pnucene Review
Review of the environmental oversight framework in Kenya, in light of a
nuclear power programme
Diana Musyoka∗, Robert M Field
KEPCO International Nuclear Graduate School, Ulsan, Republic of Korea
A R T I C L E I N F O
Keywords:
Nuclear power plant
Environmental impact assessment
Environmental law
Environmental agency
Environmental regulations
Nuclear regulatory body
A B S T R A C T
By means of an Environmental Impact Assessment (EIA), environmental impacts associated with Nuclear Power Plants (NPPs) can be identified and evaluated International approaches and guidelines indicate that nuclear newcomer countries such as Kenya need to ensure that the national legal and regulatory framework for en-vironmental protection accounts for the unique safety and enen-vironmental aspects of such an endeavor In par-ticular, existing laws may require amendment and/or supplement Moreover, the responsibilities of the en-vironmental agency and nuclear regulatory body, in enen-vironmental oversight of NPPs will need to be legally
defined in order to prevent overlapping of responsibilities and to minimize the potential for project delay Case histories of countries with advanced nuclear power programmes were performed to identify strategies which align with best environmental management practices, as relevant to newcomer countries such as Kenya A re-view of the environmental assessment framework for United States and Canada indicates similar approaches whereby the nuclear regulatory body has the sole responsibility in EIA However, in Sweden, NPPs are required
to receive authorisation from the Radiation Safety Authority as well as from an environmental court Kenya has
an existing environmental protection framework, and as a standard requirement, a nuclear regulatory body will
be designated to regulate NPPs in order to ensure protection of people and the environment In light of a nuclear power programme, a review of the national legal framework in Kenya should be done in order to ascertain if amendment and/or supplement of the environmental law and supporting regulations is required Moreover, in order to ensure effective environmental regulation of NPPs, the responsibilities of the environmental agency and nuclear regulatory body need to be legally defined in order to prevent overlapping of responsibilities This paper also suggests two alternative structures for the EIA process and authorisation for NPPs in Kenya
1 Introduction
“Sustainable development” has been a global and national focus
over the past four decades A 1987 United Nations report, describes
sustainable development as “development that meets the needs of the
present without compromising the ability of future generations to meet their
own needs” (United Nations, 1987) Commensurate with this goal,
programmes and projects should be implemented and executed with
consideration of environmental protection
The concept of sustainable development includes the economic,
environmental, and social aspects of the programme or project
According to the International Atomic Energy Agency (IAEA), in the
environmental pillar, the sustainability issues of nuclear energy include
climate change, impacts on ecosystems, waste generation, and impacts
on water and land use (International Atomic Energy Agency (IAEA),
2016) In terms of climate change, nuclear energy is viewed as playing a
key role in mitigating greenhouse gas emissions The Intergovernmental
Panel on Climate Change (IPCC) states that:“the life cycle greenhouse gas emissions per kWh from nuclear power plants are two orders of magnitude lower than those of fossil-fueled electricity generation and comparable to most renewables Hence it is an effective GHG mitigation option, especially
by way of investments in the lifetime extension of existing plants” (Intergovernmental Panel on Climate Change (IPCC), 2001)
However, the impacts on ecosystems, land and water use, and waste generation remain a key challenge for nuclear energy requiring careful assessment of the environmental stresses associated with proposed projects Such issues are recognized with concerns that construction and operation of Nuclear Power Plants (NPPs) must be investigated to reduce, minimize, or eliminate potential impacts Environmental Impact Assessment (EIA) is crucial in the initial stages of a nuclear power programme Development of the EIAfirst requires determination
of the criteria and monitoring requirements for the plant lifecycle (i.e., construction, operations, and decommissioning) (Susanto Eko, 2013) The need for energy sufficiency especially in developing countries
https://doi.org/10.1016/j.pnucene.2018.05.005
Received 12 October 2017; Received in revised form 22 February 2018; Accepted 11 May 2018
∗ Corresponding author.
E-mail address: dmusyoka@nuclear.co.ke (D Musyoka).
Available online 26 May 2018
0149-1970/ © 2018 The Authors Published by Elsevier Ltd This is an open access article under the CC BY license
(http://creativecommons.org/licenses/BY/4.0/)
T
Trang 2has led to widespread consideration of nuclear electricity generation.
Table 1 identifies more than fifty (50) countries that have recently
expressed an interest in nuclear power development (i.e., as outlined by
the World Nuclear Association (WNA)) Table 1lists these countries,
which include front runners such as the United Arab Emirates (UAE),
Turkey, Belarus, and Poland (World Nuclear Association (WNA), 2017)
2 Background of Kenya nuclear power programme
The Kenya national development plan, termed‘Vision 2030’ for the
period from 2008 to 2030, outlines the long-term policy aims to
transform Kenya into a newly industrialized and middle-income
country, one which can provide a high quality of life to Kenyan citizens
The outlined strategy includes recommended development projects to
address increased national energy demand In particular it examines
diversification of the nation's energy mix (Government of Kenya, 2008)
Nuclear electricity generation has been proposed for inclusion in the
national energy mix in a decision based on projected long-term energy
demand in Kenya In order to implement a nuclear power programme,
the Kenya Nuclear Electricity Board (KNEB) was established as a
gov-ernment agency within the Ministry of Energy and Petroleum KNEB
serves the role of a Nuclear Energy Programme Implementing
Organization (NEPIO) as defined by theIAEA In order to execute the
nuclear energy programme, KNEB has adopted the Milestones
Ap-proach recommended by theIAEAwhereby there are three (3) phases
of development in the nuclear power programme as well as three
milestones to achieve In this approach, nineteen infrastructure areas
are recommended which are necessary for successful implementation of
a new nuclear power programme (IAEA, 2015) These areas are listed in
Table 2
TheIAEArecommends that a newcomer country should develop a
comprehensive plan to address the nineteen infrastructure areas in
order to support a new nuclear power programme
As part of implementing the nuclear power programme in Kenya, a
prefeasibility study was performed by KNEB In this study, the
gov-ernment agencies responsible for the nineteen infrastructure areas
listed above were involved This study evaluated the status of
devel-opment of the areas in Kenya, identified gaps, and recommended
strategies for improvement Additionally, in August 2015, international
experts from the nuclear industry conducted the Integrated Nuclear
Infrastructure Review (INIR) mission organized by theIAEA This re-view provided a number of expert recommendations for improving each
of the infrastructure areas in readiness for a nuclear power programme Relevant government agencies involved in the prefeasibility study also participated as correspondents to the INIR mission These agencies included: The Ministry of Environment, the National Environment Management Authority, the Ministry of Energy, the Radiation Protection Board, the Kenya Electricity Generating Company, the Energy Regulatory Commission, the National Commission for Science Technology and Innovation, amongst others (IAEA)
According to theIAEAMilestone Approach to implementing a nu-clear power programme, a newcomer country achieves thefirst mile-stone,‘Milestone One’, upon evaluation of the considerations needed in order to make a knowledgeable decision to introduce nuclear power (IAEA, 2015) The prefeasibility study and the INIR mission in Kenya were the principal Phase I activities whose major outcome was identi-fication of infrastructure areas in need of development to the level of supporting NPP construction and operation Subsequent activities have revolved around addressing the recommendations from the pre-feasibility study and the INIR mission As a result, Kenya can be termed
as being in Phase 2 of nuclear power programme implementation per theIAEAMilestones Approach This is termed as,‘Preparatory work for the contracting and construction of a nuclear power plant after a policy decision has been taken’ In this phase KNEB is collaborating with state and international organisations in activities to enable the country to be technically ready to procure, construct, and operate a nuclear power plant
In order ensure successful implementation of the nuclear power programme, Kenya continues to cooperate with theIAEAin developing the nineteen infrastructure areas Additionally, Kenya has entered into formal agreements with countries with advanced nuclear power pro-grammes as a way of enhancing its capabilities Kenya has collaborated with the Republic of Korea to build capacity building through training
of Kenya nationals in the area of nuclear engineering since 2012 Other countries that have entered into formal agreements with Kenya are China and Russia
3 Current environmental protection framework of Kenya
In Kenya, environmental protection is governed by the Environmental Management and Coordination Act (EMCA) The EMCA codifies requirements for protecting various aspects of the environment and also delineates responsibilities for fulfilling these requirements In addition, environmental regulations and guidelines have been devel-oped These include: i) Environmental Impact Assessment (EIA) reg-ulations, ii) water quality regreg-ulations, iii) air quality regreg-ulations, iv) wetland regulations, v) controlled substances regulations, vi) EIA guidelines, and vi) Strategic Environmental Assessments (SEA) guide-lines
In terms of environmental agencies, the National Environment Management Authority (NEMA) is the principal governmental agency responsible for regulating environmental protection It is established within the Ministry of Environment, Water and Natural Resources NEMA has a mandate to implement EMCA and to coordinate overall
Table 1
Emerging and prospective nuclear energy countries
Europe Italy, Albania, Serbia, Croatia, Portugal, Norway, Poland, Belarus, Estonia, Latvia, Ireland, Turkey.
Middle East and North Africa UAE, Saudi Arabia, Qatar, Kuwait, Yemen, Israel, Syria, Jordan, Egypt, Tunisia, Libya, Algeria, Morocco, Sudan West, Central and Southern Africa Nigeria, Ghana, Senegal, Kenya, Uganda, Tanzania, Zambia, Namibia.
Central and South America Cuba, Chile, Ecuador, Venezuela, Bolivia, Peru, Paraguay
Central and Southern Asia Azerbaijan, Georgia, Kazakhstan, Mongolia, Bangladesh, Sri Lanka
South East Asia Indonesia, Philippines, Vietnam, Thailand, Laos, Cambodia, Malaysia, Singapore, Myanmar, Australia, New Zealand East Asia North Korea
Table 2
Nineteen infrastructure areas
IAEA Infrastructure Areas
1 Nuclear Safety 11 Stakeholder Involvement
2 Funding and Financing 12 Regulatory Framework
3 Radioactive Waste 13 Site and Supporting Facilities
4 National position 14 Industrial Involvement
5 Environmental Protection 15 Electric Grid
6 Radiation Protection 16 Nuclear Fuel Cycle
7 Emergency Planning 17 Procurement
8 Security and Physical Protection 18 Human Resources Development
9 Management 19 Legislative Framework
10 Safeguards
Trang 3matters relating to environmental protection with other government
agencies
Another environmental oversight body is the National Environment
Tribunal (NET) NET is headed by a chairman appointed by the national
Judicial Service Commission, and who is also qualified for appointment
as a judge of the High Court of Kenya Other members include an
ad-vocate of the High Court, a lawyer qualified in environmental law, and
two members who have academic competence in thefield of
environ-mental management By mandate, the NET reviews administrative
de-cisions of NEMA relating to licensing, and also provides legal opinions
to NEMA on complex matters (Government of Kenya, 2012)
Another body, the National Environment Council (NEC) is chaired
by the Cabinet Secretary (equivalent to Minister) of Environment This
body also includes the Permanent Secretaries responsible for matters
such as agriculture, economic planning and development, education,
energy, environment,finance, fisheries, foreign affairs, health, industry,
law or law enforcement, local government, natural resources, public
administration, public works, research and technology, tourism, and
water resources The Council also has representation from public
uni-versities, specialized research institutions, the business community, and
non-governmental organisations The key functions of the NEC are: (i)
formulation of policy and direction for the purposes of EMCA, (ii)
set-ting national goals and objectives for environmental protection, and
(iii) promotion of collaboration among government agencies and
non-governmental organisations involved in environmental protection
(Government of Kenya, 2012)
3.1 Environmental Impact Assessment Process
In conducting environmental assessments, EIA regulations,
guide-lines, and procedures specified under the EMCA are used NEMA
co-ordinates the EIA process and grants licenses to projects that can
de-monstrate that EIA requirements have been met The project
‘proponent’ prepares an Environmental Impact Assessment Study
Report (EIASR) outlining characteristics of the project such as project
activities, project design, potential environmental impacts, and
pro-posed mitigation measures On completion, the EIASR, is submitted to
NEMA Thereafter, NEMA provides copies to appropriate lead agencies
for comments within thirty days As part of decision making on the EIA,
EMCA requires public involvement with NEMA being responsible to
organise public hearings
The specified period for NEMA render a decision on the submitted
EIASR is three months from the time of receipt The decision is formally
issued incorporating comments of the lead agencies and results of
public hearings If NEMA approves the EIA, it will issue a license to the
proponent.Fig 1illustrates the EIA process in Kenya (NEMA, 2002)
3.2 Strategic Environmental Assessment (SEA)
Strategic Environmental Assessment (SEA) can be termed as the
documentation of the significant environmental issues likely to be of
interest in a particular project This is conducted at the level of policy,
plan, or programme development In Kenya it is a statutory requirement
for new policies, plans, and programmes to undergo the SEA process
This approach helps ensure that environmental protection is integrated
throughout the adoption of a plan, policy, or programme Therefore,
the proposed nuclear power programme is required to undergo SEA and
this is being conducted by KNEB in collaboration with NEMA so as to
meet the requirements of the EMCA This approach will also assist in
developing analysis of the environmental issues and concerns of the
nuclear power programme, and ultimately contribute to the
decision-making process
4 Environmental protection framework for nuclear energy programme
The IAEA considers environmental conservation to be of prime importance in the use of nuclear technology for electricity generation
As mentioned in Section2, one of the nineteen infrastructure areas for a nuclear power programme is‘Environmental Protection’ The purpose
of this infrastructure is to ensure the readiness of environmental pro-tection measures to be considered by a nuclear newcomer country This area addresses impacts on people and the environment from releases of radioactive effluents during nuclear power plant operation, as well as conventional environmental impacts
4.1 Systematic development of‘environmental protection’ infrastructure TheIAEAhas developed guidelines for systematic development of all infrastructure areas throughout the three phases of a nuclear power programme Activities related to environmental protection which should be addressed in Phase I include: i) consideration of radioactive release on land, water, and impacts on people and the environment, ii) review of suitability of the country's current framework for environ-mental protection, iii) collection and analysis of baseline environenviron-mental information on the sites selected, and iv) development of re-commendations related to augmentation of existing environmental laws, regulations and responsibilities (IAEA, 2015)
In Phase II, the organisations responsible for the nuclear power programme complete activities that lead up to contracting with a vendor to construct the nuclear power plant The following activities are essential for‘Environmental Protection’ infrastructure in this phase: (i) enhancements of existing environmental laws and regulations based
on recommendations identified in Phase I, (ii) building the capability of the environmental agency for the nuclear power programme, (iii) clarifying the interface between the environmental agency and nuclear regulatory body in environmental oversight of the nuclear power pro-gramme, and (iv) study of the potential environmental impacts as needed in the selection of preferred candidate sites to ensure com-pliance with the national laws and regulations on environment In Phase III, the owner/operator is expected to meet all licensing and approval conditions established by the environmental oversight agen-cies and an environmental monitoring programme should be im-plemented before the NPP is commissioned (IAEA, 2015)
Fig 2indicates a summary of the phased approach to address en-vironmental issues in new nuclear power programmes as outlined by theIAEA(IAEA, 2014) As shown in the diagram, towards the end of Phase II, the owner/operator should conduct an environmental impact assessment of the preferred NPP candidate site The EIA report is an important document to be included in the NPP bid invitation package 4.2 Environmental and nuclear law
Nuclear law and environmental law make up the legal framework for environmental protection as related to NPP operation Nuclear law covers radiological impacts while environmental law covers non-radi-ological and parts of radinon-radi-ological impacts of NPP construction and operation In a newcomer country, existing environmental law will likely need to be supplemented, or new regulations developed, in order
to adequately address NPP projects According to theIAEA, additional environmental laws are required even though nuclear laws are expected
to cover radiological impacts of a nuclear power plant This must be reflected in EIA laws, noting that while most countries have EIA laws and regulations, they may lack the detail to assess impacts of large scale (major) projects In this case, separate laws are used to fully implement EIA requirements These laws should be in place or under development before making a decision to embark on a nuclear power programme (IAEA, 2014)
Once legislation is established, regulations and associated
Trang 4guidelines follow Regulations set requirements on how to comply with
the laws while guidelines are used to identify acceptable means for the
proponent to meet established requirements EIA regulations address
issues such as the EIA process and methodology, and interface with
other laws In order to minimize the potential for regulatory delay of
the NPP, ambiguities between nuclear and non-nuclear related
en-vironmental laws should be explicitly identified and clarified (i.e., to
prevent conflicting or duplicate legal requirements) This will also
provide NPP investors with a clear understanding of expectations
(IAEA, 2014)
4.3 Uniqueness in environmental assessment
The process of environmental assessment of the impacts of NPPs is
similar to that for other industries However, nuclear power technology
is characterized by unique aspects that may affect the environment
According to theIAEA, routine and accidental radiological releases to
air and water is one part of these aspects, as is radioactive waste and
spent fuel management
Thermal pollution of waterways is also an impact of specific concern
of nuclear power plants due to the large thermal discharge TheIAEA states“depending on the type of plant cooling system, thermal discharge limits set to protect the environment typically have an impact on the cost efficiency of the plant, and therefore they are subject to intense interest” Depending on the design of the cooling system, large intakeflows may result in significant entrainment and impingement of aquatic organisms and may constitute major concerns related to NPP operation Nuclear power plant environmental impact assessments are also unique due to international and public interest and concerns Owing to this, newcomer countries should expect to spend significant resources
in assessment of impacts of NPPs on the environment (IAEA, 2014)
4.4 Interfaces in environmental oversight TheIAEArecommends that in the initial stages of implementing the nuclear power programme, the capability of organisations should be Fig 1 Environmental impact assessment process in Kenya
Trang 5assessed, and an Action Plan developed to resolve deficiencies In the
case of the EIA, the NEPIO, the nuclear regulatory body, and the
en-vironmental agency should be involved in this review and planning
The Action Plan should delineate the responsibilities in developing and
implementing the overall environmental requirements and also address
issues of independence and procedural organizational relations In
particular, the IAEA states that: “a fully implemented organizational
structure to address the nuclear power facility EIA is likely to require
modifications to the environmental protection authority structure, capacity
and implementing procedures to provide appropriate coverage for
radi-ological environmental protection However, clear distinctions should be
made with the nuclear regulatory body to avoid duplication of authority and
effort” (IAEA, 2014)
In order to counter any conflicts in the conduct of NPP
environ-mental assessment, theIAEArecommends formal agreements be made
(e.g., using Memoranda of Understanding (MoU)), between the
orga-nisations involved These should clearly define the structure and
re-sponsibilities in conducting the EIA In particular, delineation of roles
and responsibilities are critical in situations where the nuclear
reg-ulatory body and environmental agency are assigned duties related to
nuclear law and environmental law, respectively
The need to have a well-defined and functional process of EIA is also
key to NPP project execution since submittal of the EIA report is an
early step Therefore, timely initiation of the EIA plays a crucial role in
progress of other project activities (e.g., construction and equipment
procurement) These activities typically require significant lead time
and are contingent upon regulatory approval (e.g., site permits) to
proceed (IAEA, 2014)
A well-defined environmental oversight structure for NPPs will also
play a key role in countering challenges faced in the midst of project
execution such as the potential for public opposition due to
environ-mental concerns For example, such opposition was experienced at
Kaminoseki, Japan, a biodiversity hotspot Although the national
Japanese government approved the project in July 2001, and the permit for reclamation of the sea was given to in 2008, the construction works have been at a standstill owing to many obstacles, including local landowners who have not agreed to sell their land and afishing co-operative that has refused to accept compensation for the possible loss
of theirfishing rights (Ankei)
5 NPP environmental oversight case studies
In order to develop structural approaches to environmental review and oversight in Kenya, a brief overview of the environmental impact assessment framework was completed for selected countries with well-established programmes, both nuclear and environmental protection (specifically Sweden, the United States, and Canada)
5.1 Sweden
In Sweden, the Nuclear Activities Act requires an Environmental Impact Statement (EIS) as part of NPP licensing The purpose of the EIS
is to assess the effects of the planned NPP operation on human health and the environment In addition, an ordinance, ‘Ordinance on Environmental Impact Assessments’ directs that nuclear reactors and installations for the storage of nuclear waste and spent fuel must always
be considered to have significant impact on the environment Another law, Ordinance on Environmentally Hazardous Activities and Health Protection, states that a nuclear activity should not be carried without a permit issued under the Environmental Code These two ordinances require that nuclear related operations require two permits, one under the Environmental Code, and the other under the Nuclear Activities Act (Organisation for Economic Co-operation and Development (OECD),
2008)
In the EIA structure, an EIA report is submitted to the Radiation Safety Authority as part of application for a permit to conduct nuclear Fig 2 Phased approach to address environmental issues in new nuclear power programmes
Trang 6activities A similar copy is submitted to an environmental court for
consideration under the Environmental Code Thereafter the
applica-tion is handed over to the government which assesses its permissibility
under Chapter 17 of the Environmental Code (Organisation for
Economic Co-operation and Development (OECD), 2008).Fig 3
sum-marises the NPP licensing process in Sweden (IAEA, 2017)
5.2 United States of America
The United States (US) National Environmental Policy Act (NEPA)
of 1969, as amended, expresses the US national environmental goals
This act requires the Federal Government to develop plans, functions,
and programs aimed at protecting the environment Specifically,
Section 102 (2)(a) directs that,“all agencies of the Federal Government
shall utilize a systematic, interdisciplinary approach which will ensure the
integrated use of the natural and social sciences and the environmental
de-sign arts in planning and in decision-making which may have an impact on
man's environment” (Department of Energy, 2017) The United States
Nuclear Regulatory Commission (US NRC) implements the
require-ments of NEPA Section 102 (2) through the environmental regulations
for NPP licensing, Part 51 of 10 CFR (code of federal regulations)
Therefore, in order to ensure that the issuance of a construction permit
or operating license for an NPP is consistent with NEPA, the US NRC
assesses the potential environmental effects of the facility by requiring
each licensee to submit an EIA report (Nuclear Regulatory Commission
(NRC), 1976)
In some cases, the US NRC has overlapping responsibilities with
other Federal Government agencies regarding licensing of NPPs and
related facilities Therefore, to coordinate and effectively implement
certain requirements in NPP projects, and to avoid conflict and
dupli-cation of efforts related to environmental protection, the NRC has
en-tered into formal agreements with other federal agencies For example,
the mandate of the US NRC under the NEPA is affected by the Federal
Water Pollution Control Act (FWPCA) Amendments of 1972 The
FWPCA gives the United States Environmental Protection Agency (US
EPA) the authority to regulate discharge of pollutants to waters from
NPPs Therefore, the US NRC may require license applicants to submit
information needed by the US EPA for enforcing the FWPCA However,
the information needs imposed by the two organisations may be similar
in the area of impacts on water quality and biota In light of this, the responsibilities of US EPA and the US NRC as affected by the FWPCA are subject to a“Memorandum of Understanding and Policy Statement Regarding Implementation of Certain NRC and EPA Responsibilities” This Policy Statement serves as the legal basis for the US NRC to make decisions on licensing matters under NEPA and the FWPCA (Nuclear Regulatory Commission (NRC), 1976)
In another area of overlapping responsibilities, both the US NRC and the United States Army Corps of Engineers have responsibilities in en-vironmental impact regulation of NPPs on coastal and inland navigable waters The two organisations have a duty to ensure that the facilities are built and operated safely and with minimum environmental impact
In order to avoid conflicting direction and duplication of effort in en-vironmental protection, the two agencies have entered into an MoU (40
FR 37110; August 25, 1975) Under this MoU, the US NRC has the primary role in environmental reviews and preparation of environ-mental statements for NPPs On the other hand, the United States Army Corps of Engineers will contribute in preparing the environmental im-pact statements by drafting material for evaluating coastal erosion and other shoreline modifications, siltation and sedimentation, dredging activities, and the location of structures in or affecting navigable waters (Nuclear Regulatory Commission (NRC), 1976)
5.3 Canada
In Canada, in accordance with paragraph 15(a) of the Canadian Environmental Assessment Act (CEAA) 2012, the Canada Nuclear Safety Commission (CNSC) is the sole federal authority responsible for conducting an environmental assessment for designated projects regu-lated under the Nuclear Safety and Control Act (NSCA) The environ-mental assessment is carried out under the NSCA, or under the CEAA Environmental assessments under CEAA are used as planning tool to minimize or avoid adverse environmental effects before they occur, while environmental assessment under NSCA is a technical assessment
on the licensee's intention to protect the environment This serves as a continuous improvement tool that CNSC uses to assess environmental protection measures of the licensee (Canada Nuclear Safety Commission (CNSC), 2016)
The CNSC also cooperates with other government agencies in Fig 3 Licensing process for a new nuclear facility in Sweden
Trang 7environmental protection activities through formal agreements in order
to increase the effectiveness of environmental protection activities and
eliminate overlapping of responsibilities CNSC has entered into MoUs
with Federal agencies such as Fisheries and Oceans Canada (DFO) and
Environment Canada (EC) The DFO and the CNSC MoU outlines areas
for cooperation regarding administration of the Fisheries Act In this
agreement, the CNSC reviews impacts to the environment, fish and
their habitat, and makes recommendations to the DFO However, the
Minister of Fisheries and Oceans remains accountable for decisions
under the habitat provisions of the Fisheries Act (CNSC, 2017a)
In the MoU between the EC and the CNSC, areas of mutual interest
in which the two organisations will cooperate are outlined While the
mandate of the CNSC is derived from the NSCA, and that of EC from the
Canadian Environmental Protection Act, both organisations are
ob-ligated to protect the environment by ensuring compliance with a
number of Federal Acts and regulations in relation to NPPs The MoU
outlines cooperation between the two entities with an aim to avoid
duplication of effort (CNSC, 2017b)
6 Discussion
Nuclear power is one of the most rigorously regulated industrial
activities in the world as safety is fundamental in NPP operations In
addition, there is significant public interest in NPPs due to pre-existing
perceptions of NPP risks as conditioned by past accidents at Three Mile
Island, Chernobyl, and Fukushima Daiichi As a result, regulatory
power and public interest is significant, and concerns can delay or halt
nuclear plant construction or operations Environmental protection for
NPP projects should therefore be pursued through a regulatory
en-vironment that provides rigor, transparency, and predictability (World
Nuclear Association (WNA), 2012)
As mentioned in Section2, theIAEAconducted an INIR mission for
Kenya in August 2015 As related to environmental protection, the INIR
mission report indicates that the national environmental agency, NEMA
is assigned environmental oversight for the planned NPP in accordance
with the current national framework for environmental protection
(IAEA) In this case, NEMA would have the central role in conducting
the EIA as coordinated with the nuclear regulatory body as the lead
agency in evaluating radiological impact of NPPs
However, following internationally accepted procedures, the
nu-clear regulatory body has a significant role in regulating the NPP to
ensure protection of people and environment Consequently, this body
has responsibility in framing and enforcing environmental regulations
on NPPs Therefore, absent a clearly defined statutory interface, there is
the likelihood of conflicting responsibilities in relation to the nuclear
power programme between NEMA and the nuclear regulatory body
Regulations set requirements on how to comply with the established
law while guidelines are used to provide acceptable approaches to meet
set requirements In Kenya, the Environmental (Impact Assessment and
Audit) Regulations, address EIA scope, process and methodology and
interfaces with other laws Other regulations include water quality
regulations, air quality regulations, wetland regulations, and controlled
substances regulations As there are no published plans for modification
of the environmental law, or creation of nuclear specific environmental
oversight regulations, it is presupposed that the environmental
assess-ment of NPPs will be conducted in accordance with the current EIA
regulations However, the reality is that the current environmental laws
and regulations lack the level of detail needed to assess the full range of
NPP impacts to the environment
Case reviews were completed for three countries with advanced
nuclear power programmes, specifically for Sweden, the United States,
and Canada Of these, the United States and Canada share a similar
process for environmental assessment whereby, the nuclear regulatory
body has the sole responsibility for coordinating the process This is
done in conjunction with the environmental agency through formal
agreements intended to eliminate overlapping of responsibilities The
advantage of this approach is that the burden on the NPP owner of duplicate requirements from the two agencies is eliminated
This approach also acts to mitigate the risk of project delay due to inconsistent or conflicting licensing requirements A newcomer country that would choose this approach must however ensure there is a syn-chronization of the existing environmental requirements and nuclear safety requirements
On the other hand, the approach in Sweden exhibits a different procedure of licensing new nuclear projects whereby, new nuclear projects require an independent review of the requirements of en-vironmental protection and nuclear safety by both the enen-vironmental court and nuclear regulatory body The challenge of this system is the burden of NPP owner in meeting the requirements of the two institu-tions of authority on information which may be similar, and which may result in project delay The approach is intended to ensure that the environmental agency and nuclear regulatory body carry out their statutory duties without interference from the other
7 Conclusion recommendations
As mentioned in Section3.1, the EIA report is one of the funda-mental documents used in preparation of the NPP bid invitation
spe-cification In addition, it is also linked to other permits for the NPP project such as siting and construction Therefore, a delay in EIA per-mitting may result in significant project schedule delays On the other hand, historically NPPs have faced controversy and major challenges in implementation
In consideration of these factors, it is important to ensure that the NPP environmental assessment process and structure for Kenya is de-signed to consider this past history and to ensure rigor, transparency, and predictability in authorisation of the project
At the same time, the environmental assessment process for the NPP must not compromise environmental integrity Therefore, new systems and regulations developed specifically for NPP environmental assess-ment should reflect best practices to ensure that the environment is adequately protected Such practices are as recommended by the IAEA standards, guidelines and, technical documents as well as the countries with advanced nuclear power programmes This will serve to ensure that the goal of sustainable development is achieved
There are a number of actions that are needed in order to ensure a robust environmental assessment framework for NPP projects in Kenya The responsibilities of NEMA and the nuclear regulatory body should be clearly defined well in advance This will ensure a robust yet pre-dictable licensing process that avoids duplication of efforts or bureau-cracy which may inordinately affect project cost and schedule The areas of regulatory overlap should be identified and working arrange-ments agreed upon through a legal mechanism such as MoU The nuclear regulatory body and NEMA should collaborate in re-viewing the current environmental laws and making amendments that are needed to address significant environmental impacts associated with NPPs The amendment of the environmental law should include relevant government policy bodies such as National Environment Council which has representation from various government sectors as described in Section 2.1 Stakeholder forums to collect views, and ap-proval by the relevant committees in parliament will also be crucial in this process
Based on global precedent, it is recommended that the mandate of the nuclear regulatory body be expanded from that of lead agency in radiological impacts during EIA, to responsibility for review of com-pliance with environmental regulations at the licensing stage To best serve this role, it is then expected that the nuclear regulatory body will finalize national regulations and guidelines on environment protection based on international guidelines such as published by theIAEA, and the International Commission on Radiological Protection
The environmental agency has a significant role to play in Kenya's nuclear power programme Therefore, NEMA should be actively
Trang 8involved where applicable in nuclear programme capacity building
activities in order to establish the technical capability of the staff in NPP
regulation In particular, NEMA staff responsible for compliance and
enforcement should be trained in general NPP engineering areas in
relation to environmental protection In this way, there will be a clear
understanding by the agency of the standard requirements in NPP
regulation which will translate into development of appropriate
reg-ulatory procedures
As described in Section3.1, the EIASR review involves lead agencies
which are required to give expert input in respective aspects of the
environment However, in this type of working arrangement, it may be
difficult to control the timeliness of delivering the comments by these
lead agencies As a result, a centralized team should be formed
com-prised of representatives from the lead agencies with a legal obligation
to give input in the EIA
In this study, case reviews were done on the environmental
reg-ulation framework for nuclear power plant projects in Sweden, the
United States, and Canada The EIA process and structure in these
countries provides valuable insights on different models that could be
considered for adoption in Kenya case Compliance with nuclear safety
regulations is a responsibility of the nuclear regulatory authority, with
the natural alignment for environment protection related to
radi-ological effect also rests with the nuclear regulatory body Conventional
environmental protection, such as related to air and water quality, more
naturally aligns with NEMA expertise and responsibilities Therefore, a
decision on assignment of environmental regulation responsibilities for
the case of NPPs is required In the case of the United States, the nuclear
regulatory body has the central responsibility in environmental
as-sessment of NPPs A similar approach is used in Canada whereby the
environmental law clearly delegates the NPP EIA to the nuclear
reg-ulatory body
In Kenya a similar approach can be adopted by delegating
en-vironmental protection regulation and oversight to the nuclear
reg-ulatory body In this case, the regreg-ulatory body would adopt the current
national EIA regulations as well as develop environmental regulations
and guidelines specific to NPP projects This will eliminate any
dupli-cation of effort since the principles of environmental protection in a
nuclear power plant is closely related to those related to nuclear safety
Table 3summarises a suggested action plan for enhancing the
na-tional environmental framework to ensure it is effective and sufficient
to regulate NPPs
7.1 Proposed structure for NPP environmental assessment review and
oversight in Kenya case
In consideration of thefindings of this study, the structure for
en-vironmental permitting for NPP siting, construction, and operation was
developed Two models are suggested
7.1.1 Model 1
In this model, the current EIA process is assumed whereby the
en-vironmental agency, NEMA, has the sole responsibility for coordinating
the EIA and authorising the NPP project The NPP project owner
conducts the EIA and submits the EIASR to NEMA for review As mentioned in Section 2.2, in the current EIA review process, NEMA submits the EIASR to relevant lead agencies for comments However, the NPP project is multidisciplinary in nature and there is a probability that multiple lead agencies will be involved in EIASR review As pre-scribed in Section 61 of EMCA,‘NEMA can set up a Technical Advisory Committee to advise it on environmental impact assessment related report’ Therefore, in this model it is proposed that in order to minimize the risk
of project delay due to lead agency feedback, a NPP EIA review com-mittee should be established In this model this is termed as NPP EIA Technical Advisory Committee and is comprised of lead agency re-presentatives which will include the nuclear regulatory body This committee will perform its duty within an established schedule and reporting format.Fig 4summarises the Model 1 NPP EIA structure The major assumption in this model is that the current EIA reg-ulations will be amended as necessary and nuclear specific regulations developed This structure of environmental impact assessment over-sight will clearly delineate responsibilities between NEMA and nuclear regulatory body and eliminate the need for the NPP project Owner to report and respond in parallel to separate agencies
7.1.2 Model 2
In this model, the nuclear regulatory body has sole legal authority over the review of the environmental assessment report for the NPP project The nuclear regulatory body receives the EIASR from the NPP project Owner (a.k.a., proponent) and has lead andfinal review re-sponsibility for the EIASR The nuclear regulatory body also issues environmental impact authorisation amongst other authorizations such
as site preparation and construction, dependent on the NPP licensing requirements.Fig 5provides a summary of the proposed structure of Model 2
In this structure, the EIA is conducted in accordance with NPP specific EIA regulations that integrate the principles of nuclear safety and environmental law In addition, it is assumed that the nuclear regulatory body and NEMA will have entered into formal agreements whereby, the nuclear regulatory body commits to implement the EIA requirements stipulated in the EMCA Additionally, mutual agreements are also entered by all statuary agencies that regulate various aspects of the environment and whose responsibilities may overlap with those of the nuclear regulatory body These include the Kenya Wildlife Service, Kenya Forest Service, and Kenya Fisheries Service which are govern-ment organisations in charge of wildlife, forestry, and fisheries, re-spectively In the agreement, the various sector regulations on en-vironmental protection are also integrated into nuclear safety laws and regulations
In order to ensure public confidence in the robustness of the NPP environmental assessment, an independent appraisal committee is re-commended In India, a similar body known as Expert Appraisal Committee (EAC) is in place to review the rigor of an EIA, and also to recommend clearance of the EIA against requirements According to Ramana and Rao,“Having a mixed and balanced EAC composition would ideally promote a more methodical process of scrutinizing the EIA and re-ports of the public consultation to decide about the project's clearance” Table 3
Action plan for enhancing the environmental protection framework for NPPs in Kenya
Action Responsible Organisations Verification
1 Review environment protection legislation KNEB, Nuclear Regulatory Body,
and NEMA
Amendment of EMCA to include comprehensive regulation of NPPs
2 Identify areas of overlap in environmental regulations KNEB and NEMA Formal agreement (MoU)
3 Delineation of mandate of nuclear regulatory body and NEMA KNEB, Nuclear Regulatory Body,
and NEMA
Ordinance, gazette notice in place
4 Capacity building KNEB and NEMA Tailored IAEA Training Program
5 Benchmark regulations and programs of countries operating NPPs and those in
Phase II of nuclear programme implementation
KNEB and NEMA Technical cooperation Agreements
Trang 9(Ramana and Rao, 2010).
A similar body is also included in the US NRC decision making
process on NPP authorisation The United States Advisory Committee
on Reactor Safeguards is a government body structured to provide an
avenue for various technical experts to offer independent advice that is
factored into the NRC decision-making process (NRC, 2017) The
composition of the independent appraisal committee should therefore
be diverse and not be solely comprised of members from nuclear related
industries In order to ensure the independence of the appraisal com-mittee, it should report directly to the Director General of the nuclear regulatory body
8 Conclusions
As mentioned in Section3.1, the EIA report is one of the funda-mental documents used in the preparation of the NPP bid invitation Fig 4 Model 1 of Structure for NPP environmental impact oversight
Fig 5 Model 2 of Structure for NPP environmental impact oversight
Trang 10specification In addition, it is also interconnected with other permits
for the NPP project such as for siting and construction Therefore, a
delay in EIA permitting may result in significant project schedule
de-lays On the other hand, NPPs are considered as controversial due to
public opposition and may face major challenges during initial
im-plementation In consideration of these factors, it is important to ensure
that the NPP environmental assessment process and structure is robust,
transparent, and predictable in order to help minimize controversies
and to ensure the timeliness in authorisation of the project Of equal
importance in ensuring a robust environmental assessment process, is
environmental protection from the impacts of NPPs Therefore, new
regulations and systems developed should ensure that the goal of
en-vironmental protection is not compromised
The independence of the nuclear regulatory body is a fundamental
requirement In regards to regulatory independence, in the‘Handbook
on Nuclear Law’, Stoiber C et al (2010) states that:
“an essential first step in determining the best approach is a careful
as-sessment of the regulatory body's independence of judgement and decision
making in the safety area A sound regulatory structure presupposes
legis-lation covering both the powers and capabilities of the regulatory body and
also its relationships with other governmental bodies, the regulated industry
and the public” (Stoiber et al., 2010)
Therefore, as in all other regulatory functions of the nuclear
reg-ulatory body, the agency should also conduct the NPP environmental
assessment independent of the inappropriate influence from other
government agencies Thus, the formal agreements with affiliated
agencies should be established prior to the start of any such reviews
(see Section7.1)
In selecting the appropriate reactor technology, a newcomer
country should select criteria for reactor design evaluation These
cri-teria include environmental impacts of the reactor design Therefore, as
part of developing the environmental assessment framework for NPP
projects in Kenya, robust environmental impact requirements should be
developed which are applicable to proven reactor designs as well as up
to date with advances in the reactor technologies (e.g., First-of-a-Kind,
or‘FOAK’)
This study has primarily focused on the appropriate environmental
assessment process for Kenya'sfirst nuclear power project However,
certain unique aspects of a NPP environmental assessment should be
considered These are the predictability of the environmental
assess-ment process and public involveassess-ment In Canada it takes approximately
thirty-six months (3 years) for environmental assessment and licensing
to prepare a siteCNSC, 2008 This is a period longer than what the
current EIA regulations in Kenya have stipulated and also what
con-ventional projects take
The other unique environmental assessment aspect is public
in-volvement through public hearings According to Section 17 (2) (c) of
the Kenya EIA regulations the proponent shall:
“hold at least three public meetings with the affected parties and
com-munities to explain the project and its effects, and to receive their oral or
written comments”NEMA, 2003
However, for the case of a NPP project a number of public meetings
may be needed because of the increased public interest This aspect
should be considered in the decision making in developing an effective
environmental assessment framework for Kenya's NPP project
9 Follow-on
As a follow-on to the ideas presented here, two areas are suggested:
1) Review the suggested regulatory structures with the identified
par-ties in a series of‘round table’ sessions Solicit input and identify
actions to proceed to consensus for recommendations to present to
legislative committees
2) Identify whether environmental regulation can follow the path of the concept of ITAAC, or ‘Inspections, Testing, Analysis, and Acceptance Criteria’ used in nuclear regulation in the United States While not a model which can be directly incorporated into en-vironmental permitting, the concept of‘Owner’ commitments to verifiable criteria may remove uncertainty from both sides of the process (i.e., regulator and proponent) This approach to regulation can reduce uncertainty in the permitting process
Acknowledgements This research was supported by the 2017 Research Fund of the KEPCO International Nuclear Graduate School (KINGS), Republic of Korea We would also like to thank Ali Mwanzei, John Kweku Avor, and William Nyaga Kanyange, for input to this paper
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