THE SHIPPING OPERATIONS (MARINE POLLUTION) ACT, 2012

MARINE POLLUTION ACT

PART V - DUMPING OF WASTES AT SEA

23. In this Part-

“Dumping Convention” means the Convention on the Prevention of Marine Pollution by Dumping of Wastes and other Matter, 1972 and the 1996 Protocol thereto, as amended. “dumping” means-

(a) any deliberate disposal into the sea of-

(i) wastes from vessels, aircraft, platforms or other man-made structures at sea; or

(ii) vessels, aircraft, platforms or other man-made structures at sea;

Nomination of experts

Limitation on measures by Director-General

Compensation

Interpretation

13

(b) any storage of wastes in the seabed and the subsoil thereof from vessels, aircraft, platforms or other man-made structures at sea; and (c) any abandonment or toppling at site of platforms or other man-made structures at sea, for the sole purpose of deliberate disposal. but does not include- (d) the disposal into the sea of wastes incidental to, or derived from the normal operations of vessels, aircraft, platforms or other man-made structures at sea and their equipment, other than wastes transported by or to vessels, aircraft, platforms or other man-made structures at sea, operating for the purpose of disposal of wastes or derived from the treatment of such wastes on such vessels, aircraft, platforms or other man-made structures; (e) placement of matter for a purpose other than the mere disposal thereof, provided that such placement is not contrary to this Part; and (f) abandonment at sea of things such as cables, pipelines and marine research devices placed for a purpose other than the mere disposal thereof. “incineration at sea” means the combustion on board a vessel, platform or other man-made structure at sea of wastes for the purpose of their deliberate disposal by thermal destruction, but does not include the incineration of wastes on board a vessel, platform, or other man-made structure at sea if such wastes were generated during the normal operation of that vessel, platform or other man-made structure at sea;

“permit” means permission granted in advance and in accordance with relevant measures adopted pursuant to section 30 or 31(1); “sea” means all marine waters other than the internal waters of States, as well as the seabed and the subsoil thereof but not include subseabed repositories accessed only from land; “vessels and aircraft” means waterborne or airborne craft of any type whatsoever including air-cushioned craft and floating craft, whether self-propelled or not; and “wastes” means materials and substances of any kind, form or description.

24. The objects of this Part are to prevent, reduce and where practicable,

eliminate pollution caused by dumping or incineration at sea of wastes.

24. Objects of the part

Application of Part

14

25. (1) This Part shall apply to the territorial sea and the internal waters of Kenya.

i. The Director-General of NEMA shall provide the Director General with information on the application of this Part to the internal waters of Kenya, including the type and nature of the materials dumped in those waters, and the Director-General shall communicate that information to the Organisation.

ii. This Part shall apply to all-

b. vessels and aircraft which are registered in Kenya or are otherwise entitled to fly the flag of Kenya.

c. vessels and aircraft loading in the territory of Kenya, wastes which are to be dumped or incinerated at sea; and

d. vessels, aircraft and platforms or other man-made structures believed to be engaged in dumping or incineration at sea in areas within which Kenya is entitled to exercise jurisdiction in accordance with international law.

(2) This Part shall not apply to the disposal or storage of wastes or other matter directly arising from, or related to the exploration, exploitation and associated off-shore processing of seabed mineral resources.

26. In administering this Part, the Director-General shall apply a precautionary approach to environmental protection from dumping of wastes whereby appropriate preventative measures are taken when

there is reason to believe that wastes introduced into the marine environment are likely to cause harm even where there is no conclusive evidence to prove a causal relation between inputs and their effects.

27 Any person permitted to engage in dumping or incineration at sea under this Part shall-

(a) bear the cost of meeting the pollution prevention and control requirements for the authorised activities, having due regard to the public interest; and (b) not cause, directly or indirectly, damage or likelihood of damage to the environment or transform one type of pollution into another.

28. Nothing in this Part shall prevent the Director General from adopting more stringent measures than is provided for in this Part with respect to the prevention, reduction and where practicable, elimination of pollution in accordance with this Act.

Administration Part

Obligations of permitted person

Director General may take more stringent measures

15

29. The dumping of any wastes is prohibited except in accordance with this Part and the Third Schedule.

30. (1)No person shall dump wastes listed in the Third Schedule unless he has obtained a permit issued by the Director General.

(2) The Director General shall in collaboration with NEMA issue permits in accordance with this Part in respect of wastes intended for dumping or, as provided for in section 25 (1), for incineration at sea-

a. loaded in the territory of Kenya; and

b. loaded onto a vessel or aircraft registered in Kenya or flying Kenyan flag, when the loading occurs in a territory other than Kenya.

(3) In issuing a permit referred to in subsection (1), the Director General shall impose the conditions set out in the Third Schedule and may impose such additional criteria, measures and requirements as he may consider relevant.

(4) The Director General shall not issue a dumping permit where an alternative environmentally sustainable method of disposal is available.

31. Where the dumping of wastes listed in the Third Schedule is permitted, the Director General shall inform NEMA of the issuance of the permit and publish the details of the permit in the Gazette.

32. No person shall export from or import to Kenya waste for dumping or incineration of waste at sea.

33. (1)Section 27 shall not apply to circumstances where it is necessary to secure the safety of human life or of vessels, aircraft, platforms or other man-made structures at sea in cases of force majeure caused by stress of weather, or in any case which constitutes a danger to human life or a real threat to vessels, aircraft, platforms or other man-made structures at sea, if dumping or incineration at sea appears to be the only way of averting the threat and if there is every probability that the damage consequent upon such dumping or incineration at sea will be less than would otherwise occur.

Prohibition on dumping of wastes

Dumping permits

Duty to publish information

Prohibition of export and import of wastes by sea

Exceptions in cases of force majeure

16

(2) Such dumping or incineration at sea as is referred to in subsection (1) shall be conducted so as to minimise the likelihood of damage to human or marine life.

(3) The master, owner or the agent shall, report to the Director-General details of such dumping or incineration at sea and the Director-General shall, as soon as may be practicable, publish and report the details of the incident to the Organisation.

34. (1)Sections 27 and 30 shall not apply in cases of emergencies posing an unacceptable threat to human health, safety, or the marine environment and admitting of no other possible solution.

(2) In cases of emergencies referred to in subsection (1)- (a) the Director General may issue a permit excepting the applications of sections 27 and 30 after consulting the Director General of NEMA and any other country or countries that are likely to be affected; and (b) the Director-General shall inform the Organisation.

35. Any person who contravenes the provisions of sections 27, 30 (1) or 32 commits an offence and shall upon conviction be liable to a fine not exceeding 10 million shillings or to imprisonment for a term not exceeding five years, or to both.

36. (1) The Director General shall-

(a) keep records of the nature and quantities of all wastes or other matter for which dumping permits have been issued and, where practicable, the quantities actually dumped, and the location, time and method of dumping; and

(b) cause to be monitored, where appropriate, in collaboration with other State and competent international organisations, the condition of the sea for the purposes of this Part.

(2) The Director-General shall report on an annual basis to the Organisation and where appropriate, to other States-

(a) the information referred to in subsection (1) (a) and (b);

(b) the measures taken to implement this Part including a summary of enforcement measures; and

(c) the effectiveness of the measures referred to in paragraph (b) and any problems encountered in their application; and

the Director-General shall publish such information in the prescribed manner.

Exceptions in cases of other emergencies

Record keeping and reporting

Offences

17

(3) The information referred to in subsection (2) shall be submitted on an annual basis to the Director General of NEMA for inclusion in the Annual State of Environment Report under Section 9(3) of the Environment Management and Coordination Act 1999.

37. The Authority shall cooperate with the relevant regional organisations in the development of procedures for the effective enforcement application of this Part in areas beyond the jurisdiction of of any state including procedures for the reporting of vessels and aircraft observed dumping or incinerating at sea in contravention of this Act.

38. The principles, legal and equitable, applicable under the law relating to liability and compensation for marine pollution damage, and the principles of international law regarding state responsibility for damage to the environment shall apply in cases of liability arising from the dumping or incineration at sea of wastes.