Montreal Protocol

Background

Upon the discovery that chlorofluorocarbons (CFCs) and other man-made substances are leading to depletion of the ozone layer, the international community negotiated the Vienna Convention for the Protection of the Ozone Layer in 1985. Following this, the Montreal Protocol on Substances that Deplete the Ozone Layer was negotiated in 1987 with the objective of reducing and finally phasing out the production and consumption of ozone-depleting substances (ODS) including chlorofluorocarbons (CFCs), hydrochlorofluorocarbons (HCFCs), carbon tetrachloride (CTC), methyl chloroform, halons, and methyl bromide. All the EANECE member nations are signatories to the Vienna Convention and its Montreal Protocol. The Montreal Protocol is the only multilateral environmental agreement with universal membership. EANECE's Montreal Protocol Programme seeks to enhance co-operation among various regulatory agencies for effective control of ODS in East Africa. The Programme has been successfully implemented in Kenya as demonstrated below.

ODS Regulation in Kenya

Kenya's framework environmental legislation, the Environmental Management & Co-ordination Act, was passed in 1999. Under the provisions of the Act, the National Environmental Management Authority (NEMA) is mandated to issue guidelines and institute programmes concerning, inter alia, the elimination of substances that deplete the stratospheric ozone layer. Pursuant to the foregoing statutory provision, and in an effort to implement the Vienna Convention and its Montreal Protocol, Kenya enacted the Environmental Management and Coordination (Controlled Substances) Regulations in 2007, popularly known as the ODS Regulations.

NEMA is charged with the responsibility of enforcing the ODS Regulations in co-operation with the relevant Lead Agencies (other government ministries and departments). Just like in most developing countries, the largest remaining sector in which ODS is used in Kenya is the refrigeration and air-conditioning servicing sector. Since Kenya does not produce ODS, its consumption depends solely on imports. Thus, Kenya's ODS Regulations seek to control the import, use and consumption of ODS through licensing and permitting of imports and exports and oversight over trade, handling and use of ODS. Under the said regulations, it is an offence to deal in and/or import any banned ODS into the country. It is also an offence to deal in and/or import any controlled ODS without a license from NEMA. Further, it is an offence to mislabel and/or misdeclare any banned or controlled ODS. Sanctions for offenders include criminal prosecution with the penalty of a fine or prison term, revocation of license and/or an order to reship the goods at own cost to the country of origin.

Despite the enactment of Kenya's ODS Regulations in 2007, the implementation of the same did not take off successfully until 2008. This delay in implementation is attributed to several factors including lack of technical and human capacity within the relevant environmental regulatory institutions and ineffective inter-agency collaboration. However, since 2008 there have been very strong and consistent institutional commitments and resolve to ensure effective implementation of the ODS Regulations. The collective effort of individuals and institutions over the past three years has resulted in tremendous achievements in enforcement of and compliance with the ODS Regulations.

Kenya has successfully employed a number of strategies including putting in place an ODS licensing system, improving inter-agency cooperation, building capacity and enhancing enforcement and penalties. The following section describes in summary some of these strategies:

  • Effective ODS licensing system: Kenya's ODS Regulations require that any person dealing in ODS must obtain a license from the National Environment Management Authority. The license specifies, among other details, quantities of substances to be imported, the type of substances as well as the details of the importer or dealer. There is in place a robust ODS licensing desk with a senior officer in charge. The National Environment Management Authority works closely with the Customs Department of the Kenya Revenue Authority to ensure compliance with licensing conditions.
  • Improved inter-agency and regional cooperation through networking: Since 2010 Kenya has seen a marked improvement in the enforcement of the ODS Regulations following successful partnerships in environmental enforcement by various governmental agencies. Under the auspices of the East African Network for Environmental Compliance and Enforcement (EANECE), various regulatory agencies including the National Environment Management Authority, Customs Department, Kenya Police Service, Kenya Bureau of Standards, among others, have come together to cooperate and collaborate on priority environmental compliance and enforcement issues. EANECE was set up in 2010 as an informal network of environmental regulators in the East African nations of Burundi, Kenya, Rwanda, Tanzania and Uganda. EANECE's programmes include capacity building for environmental regulatory officials, raising awareness of environmental requirements and the benefits of compliance, and building and strengthening personal relationships between environmental regulatory officials for effective enforcement of environmental requirements. The Network has a regional secretariat that coordinates with national networks in each of the member countries. National networks meet to share information regularly, and regional meetings are held at least twice every year to share best practices. Because of the improved networking, news about illegal trade; the technical, economic, and environmental performance of technology to replace ODS; and successful national ozone enforcement policy travels fast and authoritative answers to any questions are available very quickly. This avoids duplication of effort, allows selection of sustainable technology, and reduces costs through group know-how and information sharing. The enhanced cooperation under the Network has created personal relationships among regulatory officials from different enforcement agencies and resulted in more regular communication among the various players in the regulatory cycle hence greater information and intelligence sharing.
  • Capacity Building: Through the collaborative efforts of the Ministry of Environment, the National Environmental Management Authority, the National Ozone Unit, United Nations Environment Programme, the German organization Gesellschaft fur Internationale Zusammenarbeit (GIZ) and other development partners, there have been several capacity building initiatives including training for environmental inspectors, the police and customs officials. The training focuses on priority areas such as: the international response to ozone layer depletion; national intervention mechanisms and obligations; the national licensing regime; identification of ODS and ODS-based products; role of various stakeholders; illegal trade in ODS; and many other areas. There have also been several targeted compliance promotion initiatives for dealers in ODS including traders, technicians and consumers such as hotels. In addition, the capacity building efforts have focused on provision of technical equipment such as ODS identifiers for customs officials at transit points, airports and sea ports.
  • Enhanced Enforcement and Penalties: The National Environment Management Authority in liaison with other agencies such as the Customs Department and Police have in the recent past stepped up environmental inspections at transit points, particularly the Port of Mombasa. In this regard, two environmental inspectors from the National Environment Management Authority have been deployed to the Mombasa Port to continuously work with the customs officials and other enforcement agencies  to monitor the illegal imports and exports of ODS, hazardous materials and wastes and other related environmental matters.  This effort has led to increased detection of various illegal imports of ODS into the country. Several offenders have been prosecuted criminally before the courts of law while others have faced administrative action.

Examples of Recent Success Stories in ODS Enforcement in Kenya:

Case Study No. 1: Lifting Equipment Company Limited, June 2010

A Kenyan company, Lifting Equipment Company Limited (LECOL), obtained a license from the National Environment Management Authority (NEMA) to import a consignment of 204 cylinders of refrigerants (60 of R410A and 144 of R404A). When the consignment reached the Mombasa Port, the Customs Department conducted a routine analysis of the refrigerants through random sampling using a chlorofluorocarbon (CFC) meter/identifier. The results of the sampled cylinders were positive for CFCs. The Customs Department therefore impounded the whole consignment of 204 cylinders of refrigerants and called upon the NEMA together with the Environmental Police Unit to carry out a full verification of the entire consignment. The verification exercise was carried out in the presence of the company's representatives, and it indicated that:

  • The cylinders labeled as R404A contained 100% R134A. This was treated as a case of mislabeling, an offence under the ODS Regulations, 2007.
  • The cylinders labeled as R410A contained on average 7% to 9% of the banned CFC R12, 3% to 6% R134A, 17% to 30% R22 and 61% to 80% hydrocarbons. This was not only treated as a case of mislabeling but also as a case of importation of banned CFCs based on the percentages contained in the cylinders.

Action Taken: NEMA ordered the company to reship at its own cost the entire consignment to the country of origin. The company’s annual import license was also revoked.

Source: Report of Verification Inspection at Mombasa Port, NEMA, June 2010.

Case Study No. 2: Mishkat Limited, April 2012

The National Environment Management Authority (NEMA) and the Customs Department seized a consignment of 55 cylinders containing the banned CFC R12 at the Mombasa Port. The seizure followed a routine random testing and analysis by Customs to ascertain the contents of the consignment. The cargo originated from Dubai and was imported by a Kenyan company, Mishkat Limited. The company had a license from the NEMA import controlled refrigerants R410A and R404A. However, upon random testing, one cylinder among the imported consignment was found to contain sufficient quantities of R12, and a full verification of the entire consignment was ordered. The verification exercise was conducted jointly by the NEMA, Customs and the Environmental Police Unit in the presence of the company's representatives. The results of the verification revealed that all of the 55 cylinders contained between 11.5-12.9% and of the banned CFC R12.

Action Taken:

  • NEMA ordered the company to reship at its own cost the entire consignment to the country of origin.
  • NEMA also considered revocation of the company's annual licence to deal in controlled refrigerants. The licence expired, so revocation was not necessary.

Source: Report of Verification Inspection of Refrigerants Containing Banned Controlled Substances In Mombasa, NEMA, April 2012.

Case Study No. 3: Gee Pee Trading Company Limited, December 2012

Following a tip off, the National Environment Management Authority (NEMA) laid an ambush on the premises of a Nairobi based clearing and forwarding agent, Trade Base Company. A consignment of refrigerants was found in the premises, and the owner of the consignment was confirmed to be Gee Pee Trading Company Limited. Upon checking the Import Declaration Form, it was discovered that the goods had been declared as refrigeration accessories and spare parts with absolutely no mention of the refrigerants. In total there were 100 cylinders of assorted refrigerants; R22 30, R134A 40 and R404A 30.  An analysis of the refrigerants was conducted, and the results were as follows:

  • All the 40 cylinders labeled as R134A were found to contain 100%  of the banned CFC R12
  • All the 30 cylinders labeled as R404A contained over 25% of the banned CFC R12
  • All the 30 cylinders labeled as R22 contained 100% R22

Action Taken: NEMA ordered the company to reship at its own cost all the 70 cylinders of R134A and R404A to the country of origin.

Source: Interim Report on ODS Monitoring Exercise Carried Out In Nairobi, NEMA, January 2013.

Replication of the Success Stories:

Despite numerous challenges such as inadequate technical capacity and human resources, Kenya has demonstrated that through local collaborative initiatives bringing together various players in the regulatory regime, it is possible to achieve greater compliance with national environmental laws and at the same time meet international obligations under Multilateral Environmental Agreements.  EANECE continues work with member agencies Kenya to step up efforts in the enforcement of the Montreal Protocol. In addition, EANECE is working towards replicating Kenya's success story in the rest of East Africa including Burundi, Rwanda, Tanzania and Uganda.

Inspection and Investigation Manual

EANECE Inspection & Investigation Manual