Review of the environmental oversight framework in Kenya, in light of a nuclear power programme

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.

Progress in Nuclear Energy 108 (2018) 89–98 Contents lists available at ScienceDirect 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 T Diana Musyoka∗, Robert M Field KEPCO International Nuclear Graduate School, Ulsan, Republic of Korea A R T I C LE I N FO A B S T R A C T Keywords: Nuclear power plant Environmental impact assessment Environmental law Environmental agency Environmental regulations Nuclear regulatory body 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 environmental protection accounts for the unique safety and environmental aspects of such an endeavor 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 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 review 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 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 EIA first 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 Corresponding author E-mail address: dmusyoka@nuclear.co.ke (D Musyoka) 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 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/) Progress in Nuclear Energy 108 (2018) 89–98 D Musyoka, R.M Field Table Emerging and prospective nuclear energy countries Region Countries Europe Middle East and North Africa West, Central and Southern Africa Central and South America Central and Southern Asia South East Asia East Asia Italy, Albania, Serbia, Croatia, Portugal, Norway, Poland, Belarus, Estonia, Latvia, Ireland, Turkey UAE, Saudi Arabia, Qatar, Kuwait, Yemen, Israel, Syria, Jordan, Egypt, Tunisia, Libya, Algeria, Morocco, Sudan Nigeria, Ghana, Senegal, Kenya, Uganda, Tanzania, Zambia, Namibia Cuba, Chile, Ecuador, Venezuela, Bolivia, Peru, Paraguay Azerbaijan, Georgia, Kazakhstan, Mongolia, Bangladesh, Sri Lanka Indonesia, Philippines, Vietnam, Thailand, Laos, Cambodia, Malaysia, Singapore, Myanmar, Australia, New Zealand North Korea Infrastructure Review (INIR) mission organized by the IAEA This review 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 the IAEA Milestone Approach to implementing a nuclear power programme, a newcomer country achieves the first milestone, ‘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 identification 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 prefeasibility study and the INIR mission As a result, Kenya can be termed as being in Phase of nuclear power programme implementation per the IAEA Milestones 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 the IAEA in developing the nineteen infrastructure areas Additionally, Kenya has entered into formal agreements with countries with advanced nuclear power programmes 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 has led to widespread consideration of nuclear electricity generation Table 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 lists these countries, which include front runners such as the United Arab Emirates (UAE), Turkey, Belarus, and Poland (World Nuclear Association (WNA), 2017) 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 government agency within the Ministry of Energy and Petroleum KNEB serves the role of a Nuclear Energy Programme Implementing Organization (NEPIO) as defined by the IAEA In order to execute the nuclear energy programme, KNEB has adopted the Milestones Approach recommended by the IAEA whereby 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 The IAEA recommends 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 government agencies responsible for the nineteen infrastructure areas listed above were involved This study evaluated the status of development 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 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 developed These include: i) Environmental Impact Assessment (EIA) regulations, ii) water quality regulations, iii) air quality regulations, iv) wetland regulations, v) controlled substances regulations, vi) EIA guidelines, and vi) Strategic Environmental Assessments (SEA) guidelines 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 Nineteen infrastructure areas IAEA Infrastructure Areas 10 Nuclear Safety Funding and Financing Radioactive Waste National position Environmental Protection Radiation Protection Emergency Planning Security and Physical Protection Management Safeguards 11 12 13 14 15 16 17 18 19 Stakeholder Involvement Regulatory Framework Site and Supporting Facilities Industrial Involvement Electric Grid Nuclear Fuel Cycle Procurement Human Resources Development Legislative Framework 90 Progress in Nuclear Energy 108 (2018) 89–98 D Musyoka, R.M Field Environmental protection framework for nuclear energy programme matters 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 advocate of the High Court, a lawyer qualified in environmental law, and two members who have academic competence in the field of environmental management By mandate, the NET reviews administrative decisions 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 universities, 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) setting national goals and objectives for environmental protection, and (iii) promotion of collaboration among government agencies and nongovernmental organisations involved in environmental protection (Government of Kenya, 2012) The IAEA considers environmental conservation to be of prime importance in the use of nuclear technology for electricity generation As mentioned in Section 2, 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 protection 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 The IAEA has 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 environmental protection, iii) collection and analysis of baseline environmental information on the sites selected, and iv) development of recommendations 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 programme, and (iv) study of the potential environmental impacts as needed in the selection of preferred candidate sites to ensure compliance 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 agencies and an environmental monitoring programme should be implemented before the NPP is commissioned (IAEA, 2015) Fig indicates a summary of the phased approach to address environmental issues in new nuclear power programmes as outlined by the IAEA (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 3.1 Environmental Impact Assessment Process In conducting environmental assessments, EIA regulations, guidelines, and procedures specified under the EMCA are used NEMA coordinates the EIA process and grants licenses to projects that can demonstrate 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 proposed 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 illustrates the EIA process in Kenya (NEMA, 2002) 4.2 Environmental and nuclear law 3.2 Strategic Environmental Assessment (SEA) 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-radiological and parts of radiological 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 the IAEA, 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 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 decisionmaking process 91 Progress in Nuclear Energy 108 (2018) 89–98 D Musyoka, R.M Field Fig Environmental impact assessment process in Kenya spent fuel management Thermal pollution of waterways is also an impact of specific concern of nuclear power plants due to the large thermal discharge The IAEA 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 intake flows 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) guidelines 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 environmental 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 the IAEA, routine and accidental radiological releases to air and water is one part of these aspects, as is radioactive waste and 4.4 Interfaces in environmental oversight The IAEA recommends that in the initial stages of implementing the nuclear power programme, the capability of organisations should be 92 Progress in Nuclear Energy 108 (2018) 89–98 D Musyoka, R.M Field Fig Phased approach to address environmental issues in new nuclear power programmes 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 a fishing cooperative that has refused to accept compensation for the possible loss of their fishing rights (Ankei) assessed, and an Action Plan developed to resolve deficiencies In the case of the EIA, the NEPIO, the nuclear regulatory body, and the environmental 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 radiological 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 environmental assessment, the IAEA recommends formal agreements be made (e.g., using Memoranda of Understanding (MoU)), between the organisations involved These should clearly define the structure and responsibilities in conducting the EIA In particular, delineation of roles and responsibilities are critical in situations where the nuclear regulatory 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 environmental concerns For example, such opposition was experienced at Kaminoseki, Japan, a biodiversity hotspot Although the national 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 wellestablished 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 93 Progress in Nuclear Energy 108 (2018) 89–98 D Musyoka, R.M Field Fig Licensing process for a new nuclear facility in Sweden 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 environmental 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 environmental 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 environmental statements for NPPs On the other hand, the United States Army Corps of Engineers will contribute in preparing the environmental impact 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) activities A similar copy is submitted to an environmental court for consideration under the Environmental Code Thereafter the application 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 summarises 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 design 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 requirements 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 duplication of efforts related to environmental protection, the NRC has entered 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 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 regulated under the Nuclear Safety and Control Act (NSCA) The environmental 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 94 Progress in Nuclear Energy 108 (2018) 89–98 D Musyoka, R.M Field 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 synchronization 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 environmental protection and nuclear safety by both the environmental court and nuclear regulatory body The challenge of this system is the burden of NPP owner in meeting the requirements of the two institutions 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 environmental 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 obligated 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) Conclusion recommendations Discussion As mentioned in Section 3.1, the EIA report is one of the fundamental documents used in preparation of the NPP bid invitation specification In addition, it is also linked to other permits for the NPP project such as siting and construction Therefore, a delay in EIA permitting 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 designed 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 assessment 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 predictable licensing process that avoids duplication of efforts or bureaucracy which may inordinately affect project cost and schedule The areas of regulatory overlap should be identified and working arrangements agreed upon through a legal mechanism such as MoU The nuclear regulatory body and NEMA should collaborate in reviewing 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 approval 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 compliance 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 the IAEA, 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 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 environment that provides rigor, transparency, and predictability (World Nuclear Association (WNA), 2012) As mentioned in Section 2, the IAEA conducted 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 nuclear 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 assessment 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 95 Progress in Nuclear Energy 108 (2018) 89–98 D Musyoka, R.M Field 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 prescribed 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 committee should be established In this model this is termed as NPP EIA Technical Advisory Committee and is comprised of lead agency representatives which will include the nuclear regulatory body This committee will perform its duty within an established schedule and reporting format Fig summarises the Model NPP EIA structure The major assumption in this model is that the current EIA regulations will be amended as necessary and nuclear specific regulations developed This structure of environmental impact assessment oversight 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 involved 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 regulatory procedures As described in Section 3.1, 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 comprised 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 regulation 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 radiological 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 assessment of NPPs A similar approach is used in Canada whereby the environmental law clearly delegates the NPP EIA to the nuclear regulatory body In Kenya a similar approach can be adopted by delegating environmental protection regulation and oversight to the nuclear regulatory body In this case, the regulatory body would adopt the current national EIA regulations as well as develop environmental regulations and guidelines specific to NPP projects This will eliminate any duplication of effort since the principles of environmental protection in a nuclear power plant is closely related to those related to nuclear safety Table summarises a suggested action plan for enhancing the national environmental framework to ensure it is effective and sufficient to regulate NPPs 7.1.2 Model 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 and final review responsibility 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 provides a summary of the proposed structure of Model 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 government organisations in charge of wildlife, forestry, and fisheries, respectively In the agreement, the various sector regulations on environmental 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 recommended 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 reports of the public consultation to decide about the project's clearance” 7.1 Proposed structure for NPP environmental assessment review and oversight in Kenya case In consideration of the findings of this study, the structure for environmental permitting for NPP siting, construction, and operation was developed Two models are suggested 7.1.1 Model In this model, the current EIA process is assumed whereby the environmental agency, NEMA, has the sole responsibility for coordinating the EIA and authorising the NPP project The NPP project owner Table Action plan for enhancing the environmental protection framework for NPPs in Kenya Action Responsible Organisations Verification Review environment protection legislation KNEB, Nuclear Regulatory Body, and NEMA KNEB and NEMA KNEB, Nuclear Regulatory Body, and NEMA KNEB and NEMA KNEB and NEMA Amendment of EMCA to include comprehensive regulation of NPPs Formal agreement (MoU) Ordinance, gazette notice in place Identify areas of overlap in environmental regulations Delineation of mandate of nuclear regulatory body and NEMA Capacity building Benchmark regulations and programs of countries operating NPPs and those in Phase II of nuclear programme implementation 96 Tailored IAEA Training Program Technical cooperation Agreements Progress in Nuclear Energy 108 (2018) 89–98 D Musyoka, R.M Field Fig Model of Structure for NPP environmental impact oversight industries In order to ensure the independence of the appraisal committee, it should report directly to the Director General of the nuclear regulatory body (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 Conclusions As mentioned in Section 3.1, the EIA report is one of the fundamental documents used in the preparation of the NPP bid invitation Fig Model of Structure for NPP environmental impact oversight 97 Progress in Nuclear Energy 108 (2018) 89–98 D Musyoka, R.M Field 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 environmental 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 specification 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 delays On the other hand, NPPs are considered as controversial due to public opposition and may face major challenges during initial implementation 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 environmental 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 assessment of the regulatory body's independence of judgement and decision making in the safety area A sound regulatory structure presupposes legislation 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 regulatory 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 Section 7.1) In selecting the appropriate reactor technology, a newcomer country should select criteria for reactor design evaluation These criteria 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's first nuclear power project However, certain unique aspects of a NPP environmental assessment should be considered These are the predictability of the environmental assessment process and public involvement In Canada it takes approximately thirty-six months (3 years) for environmental assessment and licensing to prepare a site CNSC, 2008 This is a period longer than what the current EIA regulations in Kenya have stipulated and also what conventional projects take The other unique environmental assessment aspect is public involvement through public hearings According to Section 17 (2) (c) of the Kenya EIA regulations the proponent shall: 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 References Yuji Ankei, ‘Nuclear power plants and biocultural renaissance: a case study of Iwaishima Island in the Seto Inland Sea of Japan’, Journal of Marine and Island Cultures, Vol 1, Issue 2, pp 126-130 Canada Nuclear Safety Commission (CNSC), 2016 Environmental Protection: Environmental Principles, Assessments and Protection Measures Regulatory Document REGDOC-2.9.1 CNSC, Ottawa, Canada CNSC, 2017a Memorandum of understanding between the CNSC and fisheries and Oceans Canada [online] Available http://nuclearsafety.gc.ca/eng/acts-andregulations/memorandums-of-understanding/mou-cnsc-fisheries-oceans.cfm CNSC, 2008 Licensing Process for New Nuclear Power Plants in Canada CNSC, Ottawa, Canada CNSC, 2017b Memorandum of understanding between environment Canada and the CNSC [online] Available http://nuclearsafety.gc.ca/eng/acts-and-regulations/ memorandums-of-understanding/mou-environment-canada.cfm Department of Energy, 2017 The National Environmental Policy Act: as Amended [Online] Available https://energy.gov/sites/prod/files/nepapub/nepa_ documents/RedDont/Req-NEPA.pdf Government of Kenya, 2008 Vision 2030 Government of Kenya, Nairobi Kenya Government of Kenya, 2012 Environmental Management and Coordination Act (EMCA) Government Press, Nairobi, Kenya IAEA, “reportMission Report on the Integrated Nuclear Infrastructure Review-counterpart: the Government of the Republic of Kenya”, (unpublished) IAEA, 2014 Managing Environmental Impact Assessment for Construction and Operation in New Nuclear Power Programmes IAEA, Vienna, Austria IAEA, 2015 Milestones in the Development of a National Infrastructure for Nuclear Power (NG-G-3.1, Rev 1) IAEA, Vienna, Austria IAEA, 2017 Country nuclear power profiles- Sweden [online] Available https://cnpp iaea.org/countryprofiles/Sweden/Sweden.htm Intergovernmental Panel on Climate Change (IPCC), 2001 Third Assessment Report (Climate Change 2001): Working Group III- Mitigation IPCC, Geneva, Switzerland International Atomic Energy Agency (IAEA), 2016 Nuclear Power and Sustainable Development International Atomic Energy Agency, Vienna, Austria NEMA, 2002 Environmental Management and Coordination Act: Environment Impact Assessment Guidelines and Administrative Procedures (Draft) NEMA, Nairobi, Kenya NEMA, 2003 Environmental (Impact Assessment and Audit) Regulations NEMA, Nairobi, Kenya NRC, 2017 Advisory committee on reactor Safeguards [Online] Available https:// www.nrc.gov/about-nrc/regulatory/advisory/acrs.html Nuclear Regulatory Commission (NRC), 1976 Regulatory Guide 4.2, Revision 2: Preparation of Environmental Reports for Nuclear Power Stations NRC, Washington, D.C Organisation for Economic Co-operation and Development (OECD), 2008 Nuclear Legislation in OECD Countries: Regulatory and Institutional Framework for Nuclear Activities OECD, Sweden Ramana, M.V., Rao, D.B., 2010 The environmental impact assessment process for nuclear facilities: an examination of the Indian experience Environ Impact Assess Rev 30, 268–271 Stoiber, C., et al., 2010 Handbook on Nuclear Law IAEA, Vienna, Austria Susanto Eko, 2013 The effectiveness of environmental impact assessment for nuclear power plant Appl Ecol Environ Sci (4), 61–66 United Nations, 1987 Development and International Co-operation: Environment, Report of the World Commission on Environment and Development, UN Document A/42/ 427 UN United Nations, New York World Nuclear Association (WNA), 2012 Nuclear Power Economics and Project Structuring WNA, London, United Kingdom World Nuclear Association (WNA), 2017 Emerging nuclear energy countries [Online] Available http://www.world-nuclear.org/information-library/country-profiles/ others/emerging-nuclear-energy-countries.aspx “hold at least three public meetings with the affected parties and communities 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 Follow-on As a follow-on to the ideas presented here, two areas are suggested: 1) Review the suggested regulatory structures with the identified parties in a series of ‘round table’ sessions Solicit input and identify actions to proceed to consensus for recommendations to 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Venezuela, Bolivia, Peru, Paraguay Azerbaijan, Georgia, Kazakhstan, Mongolia, Bangladesh, Sri Lanka Indonesia, Philippines, Vietnam, Thailand, Laos, Cambodia, Malaysia, Singapore, Myanmar, Australia,... with advanced nuclear power programmes 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. .. Southern Africa Central and South America Central and Southern Asia South East Asia East Asia Italy, Albania, Serbia, Croatia, Portugal, Norway, Poland, Belarus, Estonia, Latvia, Ireland, Turkey UAE,