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

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.

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 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: (D. Musyoka).

/>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
( />

Progress in Nuclear Energy 108 (2018) 89–98

D. Musyoka, R.M. Field

Table 1
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 2 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 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 1 lists 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 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 2.
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

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 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 2
Nineteen infrastructure areas.
IAEA Infrastructure Areas
1
2
3
4
5
6
7
8
9
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

4. 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. 2 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. 1 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. 1. 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. 2. 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

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 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. 3. 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. 3 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).

7. Conclusion recommendations
6. 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. 4 summarises the Model 1 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 3 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 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 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. 5 provides 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 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 1
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 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
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

2. Identify areas of overlap in environmental regulations
3. Delineation of mandate of nuclear regulatory body and NEMA
4. Capacity building
5. 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. 4. Model 1 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

8. 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. 5. Model 2 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. />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. />memorandums-of-understanding/mou-environment-canada.cfm.
Department of Energy, 2017. The National Environmental Policy Act: as Amended.
[Online]. Available. />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. 1 (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. />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.
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 parties in a series of ‘round table’ sessions. Solicit input and identify
actions to proceed to consensus for recommendations to present to

98