2.2 Air Quality Regulations

2.2.1 Environmental Policy and Air Quality

The Kenya Policy Paper on Environment appreciates that air quality has been taken for granted for too long. It proposes a programme of action in which the government will step up efforts to control air pollution through existing, new legislation and other appropriate means.

The proposed programme includes arresting the problem at source by setting up emission standards, using incentives and disincentives for pollution control, and enacting a Clean Air Act.

2.2.2 Current Laws and Regulations

The following are the major existing pieces of legislation that address air pollution:
1. Penal Code, Cap 63
2. Chiefs Authority Act, Cap 128
3. The Public Health Act, Cap 252
4. The Local government Act, Cap 265
5. The Mining Act, Cap 306
6. The Traffic Act, Cap 365
7. The Factories Act, Cap 514
8. Grassfires Act, Cap 327

The Chief's Act is currently under review and is not discussed here. The Grassfire Act appreciates that grass- fires are a major source of air pollution episodes and with the exception of controlling grass-fires, standards may not be applicable and therefore, this act will also not be discussed in detail here. Other Acts could be amended to focus more on air pollution and are discussed here below:

(i) The Penal Code. Cap 63

The Penal Code is one of the oldest statutes on air quality management. Enacted in 1930, Part XVII contains a chapter on " Offences Against Health and Convenience" in Sections 191-193. The Code strictly prohibits releasing of foul air which affects the health of other persons.

Punishment for a common nuisance is imprisonment not exceeding 1 year- no option of a fine.The Penal Code has thus best intentions for controlling pollution for industries; unfortunately, however, the terms used such as " foul air" or smells are subjective and difficult to prove in a court of law. In fact "offensive" smells or "unwholesome" smells are not defined
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ii) Factories Act, Cap 514

The Factories Act, Cap 514, revised in 1972, is an Act of Parliament to make provision for the health, safety and welfare of person employed in factories and other places of work. It was amended in 1990.

The 1990 Amendment prohibits emission of "dust", fumes, or impurities into the atmosphere without undergoing treatment to prevent air pollution or other ill effects to life and property". This amendment now also includes any stationary combustion engine from discharging exhausts without treatment/or emission reduction to prevent air pollution or any ill effect of life and property.

In addition, the following Sections are important to air pollution control:
a) Part IV on Health General Provisions - under section 19 requires enforcement of sanitary convenience, by local authorities. This apparently is to reduce nuisance odours associated with unhygienic sanitary facilities.
b) Part V on Air Receivers - provides for taking of precautions in places where dangerous fumes are likely to occur.
c) Section 39: Precaution with respect to explosive or inflammable dust or gas;
d) Part VII: Health, Safety and Welfare - Special Provisions and Rules;
e) Section 57:Removal of dust or fumes; and ,
f) Power to take samples from polluting sources.

The following recommendations are made to address this:
1) Guidelines on design of chimneys and stacks be developed.
2) Specification of what constitutes " dust" and what constitutes "gases" which are health related be defined.
3) A comprehensive list of poisonous or harmful gases be developed.
4) Monitoring regime for dust and particulate be regularly instituted.

(iii) The Traffic Act Cap 403 (Rev. 1978)

The Traffic Act, Cap 403, Section 51 requires motor vehicles to use proper fuel which may be construed to mean reduction of pollution. Specific provisions are included in the Traffic Act requiring that every vehicle is so constructed and maintained and used in such a way that it does not emit smoke.

This act leaves room to adulterate vehicle fuels as it does not specify the additives as in the case of leaded petrol. It is difficult to verify fuels by traffic police except in the Vehicle Inspection Units (VIU) which in any case, is only
a requirement for commercial vehicles. Even at these VIUs, the inspection is visual in relation to smoke emissions.

The following recommendations are made to address this anomaly since this is the most appropriate act to control emissions from mobile sources its review is necessary in the following areas:
(a) incorporation of standards for lead in petrol; and,
(b) guidelines for emissions from all vehicles in terms of Volatile Organic Carbons (VOCs) and hydrocarbons.

(iv) The Local Government Act, Cap 265

The Local Government Act is concerned with a wide range of matters that affect day to day activities of individuals and organisations. Section 163, Sub-section (e) empowers municipal councils, town councils, and urban councils to control or prohibit all businesses, factories and workshops which by reason of smoke, fumes, chemicals, gases, dust, smell, noise or vibration, may be a source of danger or annoyance to the neighbourhood and to prescribe the conditions subject to which business, factories, and workshops shall be carried on.

The mechanism used by the local authorities to achieve the above objective is by:
(a) prescribing the necessary bye-laws, rules and enforcing them; and,
(b) refusal, cancellation or withdrawal of licences where:
the method adopted by the licensee or applicant for preventing offensive vapours, gases or smells arising from works or trade to which such a license applies is not satisfactory to the local authority.

The recommendations made to address this are:
(i) formulate regulations for the procedure to be followed in determining non-compliance; and,
(ii) ensure effective licensing procedures that may incorporate a requirement for environmental impact assessment.
(vi) The Public Health Act, Cap 252

This Act is one of the most widely implemented pieces of legislation on health and safety. The main institutions of enforcement are the Public Health Department of the Ministry of Health and the local authority. The ministry has
personnel at local authority, locational and even sub- location levels. The most relevant parts as far as air pollution is concerned is in Part IX on Sanitation and Housing. This Act is widely applicable since it is not restrictive as the Factories Act and actually, Section 118 (n) makes factories or other trade premises all inclusive, which means that in the absence of factory inspectors, public health officers can actually step in to stop pollution.

Section 115 prohibits nuisances and gives local authorities the mandate to prevent the nuisances. Local authorities in turn formulate local authorities bye-laws; however, few of the authorities have capacity to investigate pollution incidence.

A nuisance is defined in Section 118 (n) as any smell arising from any drainage privy, water closet, earth closet. These could be non-point sources examples of which are burning of garbage in the open, manure storage, and disposal of chemicals.

This Section although purely made to include any smallest sources of air pollution, is often interpreted to include a factory or group of factories, shelter or convenience. It calls for application of Best Available Technology (BAT) to treat (to render harmless) gases or vapours and to remove dust. It does not say the levels to be achieved, but it can be assumed that the air pollution has to be reduced to tolerable levels which are safe for humans.

In the absence of any specification, a clean factory (in sanitary terms) could escape control. One of the biggest weaknesses of this Act is that it ignores that most harmful gases may not be detected by sight or smell and hence
cannot be a basis for prosecution. It is important that, these weaknesses be addressed to include physical or chemical indicators of pollution, such as destruction of physical property, ecological impact, or prevalence of diseases.

The penalties recommended by the Act in Section 121 are not deterrent enough. The burden of proof lies with the Medical Officer of Health. Rarely are medical personnel equipped with inspection capabilities for gaseous emissions.

The following recommendation are suggested for this act:
(a) The law ought to include non-point sources such as sewage treatment, solid waste disposal sites, mining and quarrying, building/demolition sites, and energy generating facilities.
(b) The law should also adopt a comprehensive list of injurious chemicals.
(c) It should give guidelines on fume and smoke stacks, light, location and degree of waste minimisation.
(d) It should recognise other regulatory personnel such as from Directorate of Occupational Health and Safety
Services (DOHSS), or any privately funded studies.
(e) The use of the term to which the Act prescribes the time when the penalty period is operative should be retroactive to when the complaint first came or was registered.
(f) The criteria for judging toxicity and degree of harm offensive smells should be spelt out;
(g) Section 126A (a) (ii) which allows the ministry for local government to give guidelines on chimneys also include guideline No.2.

(vi) The Workman's Compensation Act, Cap 236

In its Third Schedule, the Act specifies the nature of occupations and the diseases they can cause. The Act lists a number of chemicals which are likely to cause diseases.

This list has been found to be too restrictive in light of the fact that presently there are literally thousands of chemicals, hence, this list should be substituted with a more comprehensive one. Furthermore, the Act is insufficient in giving levels of concentrations which could be injurious.

In order to protect both the worker and the employer, a concentration description to be used as a guideline is necessary. One caution on this list is that, rarely are chemicals used in their purest form. Also chemical reactions are dynamic. It should be left to the inspector to assess the by- products, intermediate compounds or cocktails which should be assessed as having caused disease, accident or hazard.

2.2.3 Weaknesses of the Existing laws
The overall difficulties in enforcing existing regulations can be summarised below:
(i) Words and phrases are too generalised and difficult to interpret as well as prove in a court of law.
(ii) Some of the statutes come into play after an act or omission has been committed, a case that is still observable in the case of Penal Code and the Traffic Act.
(iii) In the application of the law, some implementing and enforcement agencies tend to implement certain portions as opposed to others (like in the Chiefs . Authority Act- "Changaa" visa-vis environment) mainly because definitions would tend to compromise their authority.
(iv) There is an absence of quantified standards and guidelines.
(v) The penalties stipulated for breach of the law are very low.
(vi) There are conflicts of interest for decision makers since the major decision makers may have economic, social and political interests in the case in question and hence the reluctance of enforcement officers to pursue the case to its logical conclusion.
(vii) Most of the laws have a narrow scope of implementation, for example, with regard to effect of pollutants on health and may not look at the wider
picture.
(viii)Some elements of source of pollution are left perhaps with a notion that they belong to the government and hence, are "expected" to play the lead in pollution control such as aircrafts, ships, locomotives and public utilities.
(ix) There is the sectoral application of the laws where there is no co-ordination of actions and feed back mechanisms of effects of enforcement.
(x) It has been observed that most legislation that enforce air pollution include statements like. " ...if the officer is satisfied that there is a nuisance" (air pollution). How the officer becomes satisfied is left hanging and, hence, entirely subjective.

2.2.4 The Development of a Clean Air Act

The need for a regulatory mechanism for air was recognised by the government when, in 1988, a task force was constituted under the National Environment Secretariat (NES) to prepare a draft Clean Air Act. By April, 1989, the draft Clean Air Bill (DCAB) was ready and sent to a number of relevant institutions and organisations including the Kenya Law Reform Commission (KLRC) for comment.

Among the key provisions of the bill was the requirement for appointment of a Chief Air Control Officer and other air control officers who would enforce the resultant Clean Air Act. The draft Bill proposed control of the following
parameters:
(i) smoke;
(ii) emission of grit and dust including definitions and guidelines for the measurement and control fumes from outdoor furnaces; and,
(iii) control of chimney height; and,
(iv) power of court to make a nuisance order regarding air emissions.

This is the guide that has been used to develop the present standards.

The DCAB requires sources of pollution to be comprehensively monitored including those areas hitherto uncontrolled such as railway engines, motor vehicles and government premises.

The draft bill faced immediate criticism from many quarters on the definitions of some of the parameters. For example, it placed too much emphasis on smoke fumes and dust as the only major air pollutants and the availability of the government capacity to enforce it since it would run into direct conflict with related Acts such as the Factories Act.

2.2.5 Case Studies for Establishment of Air Quality Standards

Apparently, the need for the standards to be set has been due to demand by the public, project financiers and private initiatives. Three cases are given:

(i) Kel Chemicals, Thika
(ii) Olkaria Geothermal station, Naivasha
(iii) Athi River Portland Cement Factory
(I) Kel Chemicals, Thika

Kel Chemicals is one of the factories in Kenya manufacturing sulphuric acid from elemental sulphur by the contact process. The other sulphuric acid factory is East African Heavy Chemicals based in Webuye. From the sulphuric acid manufactured, aluminium sulphate used in water treatment, and fertiliser, are made.

Sulphuric acid is a major component in the manufacture of lead batteries where sulphuric acid is the electrolyte. In similar manufacturing cases, sulphonic acid is manufactured for the preparation of detergents. Two other
factories, namely, East African Industries in Nairobi and Orbit Chemicals in Athi River manufacture sulphonic acid.

In both sulphuric and sulphonic acids, sulphur is heated under a catalyst forming sulphur dioxide which is further oxidised to sulphur trioxide. The sulphur trioxide is then dissolved in water to make 95% sulphuric acid. In the process, fugitive sulphur oxides may escape from the stacks causing air pollution and localised acid rain.This was the basis of complaints at Thika where the community of Makongeni Estate called for either relocation of the factory or elimination of emissions
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In the absence of National Air Quality Standards (NAQS) the Government Committee recommended that WHO standards as set by WHO Task Group on Environmental Health Criteria for sulphur oxides (SO x ) in 1979 be adopted.

This was based on background emissions measured in the area at that time and empirical observations at the immediate environs such as:
(i) working environment for which safe levels stood at 5 ppm (for work up to 8 hours);
(ii) there was vegetation damage at 0.3 ppm;
(iii) smell threshold was at 0.5 ppm;
(iv) irritation of the nose and throat occurred when concentrations were 5-10 ppm; and,
(v) coughing and eye irritation at 20 ppm.

The standards formulated were:
(a) 24 hour value at 100 - 150 mg/m 3 (0.035 - 0.052 ppm); and,
(b) annual mean at 40-60 mg/m 3 (0.014 - 0.02 ppm).

(ii) Olkaria Geothermal Station

The Olkaria Geothermal Power Station is located on the southern side of Lake Naivasha.

Steam from the earth's strata is used to drive turbines which in turn generate electricity. The operation of the first geothermal station started in 1970. Stage one, producing 15 megawatts of electricity (MWe) was commissioned in 1981. Stage 2, producing a further 15MWe was commissioned in 1982 and the final 15MWe expansion was commissioned in 1985, making a total of 45MWe. The potential for further 15MWe for the next 30 years has been identified.

In all these cases, well depths of 1744 to 2497 metres below the surface have been dug. The steam contains what is referred to as geo gas which for the 32MWe station is 1.966 tonnes per hour. Most of this is carbondioxide which, apart from being a "greenhouse" gas, is a harmless component of the atmosphere. The harmful gas is hydrogen sulphide (H 2 S) which is estimated to be 4.9% of the geo-gas which calculated to 20.911 grams per second. H 2 S is also associated with the bad smell of sewage treatment plants,tanneries, and rotting vegetation matter. In order to minimise negative environmental impact of this gas it had to be regulated since odour is very central in mobilising people against industries.

There is considerable variation in the response of the human nose to odour. A range of odour thresholds (where 50% of the people can detect the presence of the odour have been reported for hydrogen sulphide (0.76 0 3.21 µg/m 3 ). It is therefore, easy to assume that the background levels of hydrogen sulphide are over 35 µg/m 3 where they are a source of complaints. It is with this background in mind that a medium of standard setting based on
quantitative assessment has been made at Olkaria. In this case, a 0.03 ppm sampled at 60 minutes intervals for residential areas have been agreed to between Kenya Power Company and the government. In other cases areas
supporting commercially, culturally, or scientifically important vegetation should not be permitted to experience exposures above 0.03 ppm.

(iii) Athi River Portland Cement

Manufacture of portland cement is the basis for a sustainable construction industry in any country including Kenya. There are three major cement industries in Kenya namely, Bamburi Portland Cement Company in Mombasa North Coast, Athi River Portland Cement in Athi River, and the new Kaloleni Cement Factory in Kilifi.

Cement factories are large consumers of energy mainly heavy diesel oil and coal. Hence, they are a source of gaseous pollution associated with energy generation.

In addition, the manufacture of cement generates dust and particulate matter which are offensive to workers and the general environment. The problem of air pollution emanating from Athi River Portland Cement was a source of such major complaints of air pollution in the past. Recently, Kaloleni factory was threatened with non- commissioning because of the same problem.

Athi River attracted attention in the late seventies and the early eighties when an inter-ministerial team from the Ministries of Environment and Natural Resources, the then Water Development, Commerce and Industry and the Local Government was instructed to formulate standards and guidelines to minimise pollution of air and water. On air quality the major concern was dust emissions from the fume stack. The team proposed the following standards:

SO 2 at ground level
(a) inside the plant fence:
- Annual arithmetic mean - 100µg/m 3
- Maximum 24-hr peak - 1000µg/m 3
(b) Outside plant fence:
- Annual arithmetic mean - 100µg/m 3
- Maximum 24-hr peak - 500µg/m 3
(c) From Kiln 150/mg Feed:
- From clinker cooler 50g/m 3 ,
- Feed ground level outside plant fence 80µg/m 3 ,
- Stack discharge 80µ/m 3 .
The standards did not specify the mode of monitoring; and that there has not been similar complaints attests to the fact that air pollution can be controlled at source using technology and emission limits. There was, HOWEVER, no
requirement that the factory monitor its emissions.