Soil contamination

The United Nations pollution control measures

The United Nations Framework Convention on Climate Change entered into force on 21st March 1994, after ratified by 50 states. The Convention's general objective is the "stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference антропогенное вмешательство with the climate system". To achieve достигать this the Convention elaborates legally binding commitmentsсвязывающие обязательства in three categories:

1. those to be undertaken предприняты by all Parties;

2. those that apply to OECD countries, except Mexico, the EEC and eleven countries that are undergoing transition переживающих переходный период to a market economy; and

3. those to be undertaken by OECD countries except Mexico and the EEC. Commitments that apply to all Parties are:

- preparation and communication to the Conference of Parties of national inventories of greenhouse gas emissions caused by human activity using comparable methodologies;

- development and communication to the COP of programs to mitigate effects смягчение последствий if greenhouse gases and measures of adaptation to climate change;

- cooperation on technology related to greenhouse gas emissions for all relevant sectors;

- sustainable management of greenhouse has sinks and reservoirs;

- cooperation in preparing for adaptation to the impacts of climate change;

- integration of climate change consideration with other policies;

- research to reduce uncertainties concerning scientific knowledge of climate change, the effects of phenomenon and the effectiveness of responses to it; and exchange of information, on matters such as technology and the economic consequences последствия of actions covered by the Convention.

Through the negotiations leading to the adoption of the Convention, there was support among OECD Member countries to establish national emission targets.

Institutions created under the Convention are the Conference of the Parties (COP) and two subsidiary bodies. One of the primary functions of the COP is periodic examination of the obligations of the Parties (commitments) and the institutional arrangements under the Convention. If the commitments established during the Convention are found to be inadequate недостаточный, the COP could adopt amendments or one or more protocols to the Convention that would dictate additional commitments. The COP met in Kyoto in December 1997 with this goal. The Kyoto Protocol on Climate Change is the product of this conference.

The Conference of the Parties (COP) of the United Nations Framework Convention on Climate Change held a conference in Kyoto, Japan on December 1-11, 1997 to agree on a plan to reduce greenhouse gas emissions. The agreed to plan makes use of global free market forces to protect the environment. The Kyoto Protocol will be open for signature in March 1998. To enter into force, it must be ratified by at least 55 countries, accounting for at least 55% of the total 1990 carbon dioxide emissions of developed countries.

Key Aspects of the Kyoto Protocol:

- A set of binding emissions targets for developed nations. The specific limits vary from country to country. Examples of specific limits: 8% below 1990 emission levels for the European Union countries, 7% for the United States and 6% for Japan.

- Emission targets are to be reached over a five-year budget period, the first budget period being 2008-2012.

- The emission targets include of major greenhouse gases: carbon dioxide, methane, nitrous oxide, and synthetic substitutes for ozone-depleting CFCs.

- Activities that absorb carbon (sinks), such as planting trees, will be offset against emissions targets.

- International emission trading will be allowed. Countries that have met their targets for emission reduction and have room to spare can sell emission permits to companies or countries. Emissions trading can provide a powerful economic incentive to cut emissions while also allowing important flexibility for taking cost-effective actions.

- Countries with emission targets may get credit towards their targets through project-based emission reductions in other such countries. The private sector may participate in these activities.

- Through the Clean Development Mechanism (CDM) developed countries will be able to use certified emissions reductions from project activities in developing countries to contribute to their compliance with greenhouse gas reduction targets. Certified emissions reductions achieved starting in the year 2000 can count toward compliance with the first budget period.

- The Protocol identifies various sectors (including transport, energy, agriculture, forestry and waste management) in which actions should be considered in developing countries to combat climate change and provides for more specific reporting on actions taken.

- The protocol contains several provisions intended to promote compliance.

At a conference held November 2-13, 1998, in Buenos Aires, Argentina, the Parties to the UN Framework Convention on Climate Change agreed to a two-year action plan for advancing the agenda outlined in the Kyoto Protocol. The Buenos Aires conference (known also as the "Fourth Session of the Conference of the Parties" or "CoP-4") saw a significant breakthrough on the issue of developing country participation in international efforts to address climate change. Argentina became the first developing country to announce its intention to take on a binding emissions target for the 2008-2012 time period. Kazakhstan announced that it intended to do so as well. Greater engagement in Buenos Aires on the part of developing countries was evidenced in other areas as well. One notable example was the growing interest of countries in Latin America and Africa in the Clean Development Mechanism, one of the Protocol's market-based provisions that provides incentives for investment in clean technology projects.

During the Buenos Aires conference, on November 12, 1998, the United States signed the Kyoto Protocol at the United Nations in New York. Signing does not impose an obligation on the United States to implement the Kyoto Protocol. (The Protocol cannot become binding on the United States without the approval of the United States Senate.) The President will not submit the Protocol to the U.S. Senate for approval without the meaningful participation of key developing countries in efforts to address climate change.

Canada

In Canada the regulation of pollution and its effects are monitored by a number of organizations depending on the nature of the pollution and its location. The three levels of government (Federal – Canada Wide; Provincial; and Municipal) equally share in the responsibilities обязанности, and in the monitoring and correction of pollution.

United Kingdom

In the 1840s, the United Kingdom brought onto the statute books legislation to control water pollution. It was extended to all rivers and coastal water by 1961. However, currently the clean up of historic contamination is controlled under a specific statutory scheme found in Part IIA of the Environmental Protection Act 1990 (Part IIA), as inserted by the Environment Act 1995, and other ‘rules’ found in regulations and statutory guidance уставное руководство. The Act came into force in England in April 2000.

Within the current regulatory framework, Pollution Prevention and Control (PPC) is a regime for controlling pollution from certain industrial activities. The regime introduces the concept of Best Available Techniques ("BAT") to environmental regulations. Operators must use the BAT to control pollution from their industrial activities to prevent, and where that is not practicable, to reduce to acceptable levels, pollution to air, land and water from industrial activities. The Best Available Techniques also aim to balance the cost to the operator against benefits to the environment. The system of Pollution Prevention and Control is replacing that of Integrated Pollution Control (IPC) (which was established by the Environmental Protection Act 1990) and is taking effect between 2000 and 2007. The Pollution Prevention and Control regime implements the European Directive (EC/96/61) on integrated pollution prevention and control.

Kenya

Management and utilisation of natural resources is often considered as the most critical environmental problem in Kenya.

However, pollution from industrial and domestic sources внутренние источники and related public health problems is also becoming a real menace угроза. Water and air pollution and domestic and industrial wastes are some of the critical diseconomies that have resulted from the process of industrial expansion and social transformation in the country. Among the worst pollution problems, water pollution from industrial and municipal sources has become a fairly serious problem.

This problem is made even more severe by the fact that it is a source of tremendous severe public health calamities огромные тяжелые бедствия общественного здравоохранения due to the population’s high dependency on natural sources for its drinking water. It is estimated that 85% of Kenya’s rural сельский population depends exclusively on natural sour - ces for water supply. These (surface) drinking water supplies are increasingly being threatened with pollution from agricultural chemicals and industrial and urban effluents. According to the 1991 statistics, an estimated 17 million Kenyans were without reasonable access to clean water.

A September 2000 radio broadcast declared, without exception, that the water in Kenyan rivers is unfit for human consumption. Although data gathered over the years indicate that the levels of pollution in Nairobi River for example have not changed over the last ten years or so, the river is still heavily polluted beyond acceptable levels for domestic, industrial and agricultural purposes. Air pollution has also become a major environmental problem. Formerly, it was defined as being a limited and localised problem in most cases, but the situation right now, especially in big cities like Nairobi, cannot be overlooked any longer.

Due to industrial expansion and urbanization, dust, fumes, smoke and particulates from industrial establishments, building sites and vehicular traffic characterize the environments of major towns. Waste management has become another critical environmental issue in the country’s uburban areas. Inadequate waste and sewage disposal systems очистные системы as well as lack of monitoring by the government and self-monitoring by industries has resulted to high rates of garbage generated diseases, disabilities and deaths, especially among children. In other words, basic infrastructures i.e., clean water, sewage and drainage systems, sanitation and waste disposal facilities are virtually non-existent. In a situation like this, a well functioning environmental legal regime is needed in order to deal with the various irregularities, which accommodate polluting and other environment- degrading activities.

Self-regulation by industries

The situation described above leaves abroad room for industries to independently determine their behavior with regard to pollution control. There is a distinct variation in the polluting behavior of industries as will be seen below. The study is based on an empirical comparative analysis of four industries: two local, one foreign and one joint venture. The industries are divided into two groups forming two case studies each comprising of a (fully or partly) local industry and a foreign one.

One group has activities in jurisdictions with a certain level of pollution control and the other with little or almost non- existent control. An examination of how these industries deal with water and air pollution and waste management is made below. Case study 1: Non-application of self- regulation mechanisms In this section, the activities of one partly foreign and one local industry, Pan African Paper Mills (Pan Paper) and Henkel Chemicals (EA) (Henkel), respectively, are envisaged. Pan Paper is a joint venture совместное предприятие (JV) between an Indian company (Orient Paper and Industries), the Kenyan Government and the World Bank’s International Finance Corporation (IFC).

The industry produces pulp and paper and as at now has a production capacity of 120,000 tonnes of paper a year at its mill in Webuye, in the western pro - vince of Kenya. It uses thousands of metric tons of sodium sulphide to dissolve wood chips and other cellulose-bearing fibres. Due to shortage of raw materials after having devastated a large portion of the indigenous Kakamega forest the mill now also contains various processes to use waste paper and wood, which contain toxins like lead and mercury.

The chemical agents used in the various processes are manufactured at an adjacent facility. The JV is a very interesting “hybrid” consisting of shareholders with so-to- say different levels of implementation requirements of environmental policies. Henkel Chemicals (EA) is a private owned company operating within East Africa. The Kenyan branch used as a case study in this analysis is located in Ruiru. It produces chemicals—mainly one, chlorine, which is used in swimming pools—and also uses different chemicals to produce various products, such as adhesives, fibre-glass raw materials, car care products and polyester filler paste. Pan Paper was established in 1974 and Henkel in 1965. Coincidentally, both are located besides rivers—Nzoia, which drains into Lake Victoria, and Ruiru, respectively. Pan Paper is under the jurisdiction of Webuye municipality with no by-laws but an Environment Committee whereas Henkel is in Thika municipality, which often observes strict implementation of its by-laws. Both companies do pollute, but at different levels.

The concern however is, how do they deal with the pollution, or what measures do they undertake to contain the problem? Pan Paper has been accused of polluting activities since it was founded. Back in the year 2000, the area councilors took an initiative to urge побуждать the company management to check pollution caused by effluent from the factory. The chairman of the Webuye Environment Commission and the legislators claimed that the factory was producing corrosive emissions and dumping liquid and solid waste in the open environment as a result of which iron sheet roofing on houses in the town were rusting and animals and crops were dying. Recently, a number of health symptoms in humans attributed to pollution from the industry were confirmed, including irritation of the eyes and nose, cough, breathlessness, nausea, headaches and mental illness and depression. A medical technician confirmed this report while lamenting, “

POLLUTION CONTROL IN DEVELOPING COUNTRIES WITH A CASE STUDY ON KENYA.

A NEED FOR CONSISTENT AND STABLE REGIMES and breathing problems.

Our children will have no future if they are born sick into this world.” Apart from these tangible effects, there had been no measurements to show the level of pollution until a team of local environmental and human rights investigators from Resource Conflict Institute (RECONCILE) and their local community partners, Centre for Development and Education Program (CDEP), received assistance from Global Community Monitor (GCM). The latter trained and equipped them with special buckets for taking samples. “Since 1974, a pulp mill in Western Kenya has been polluting the air and water in the town of Webuye. Visitors report that the air smells like rotten cabbage and “snowstorms” of foam droplets from the mill’s waste ponds cloud the sky and burn the skin and nose.” (www.elaw. org - Winning clean air for Kenya)

Two air samples were collected on the morning of September 22, 2007 and another one on October 23, 2007 using GCM’s bucket tech - nology. Of the September 22 samples, the first sample was collected at a location adjacent to the Pan African Paper Mill while the second sample was collected near the mill’s wastewater pond. The air samples were analysed by Colombia Analytical Services, Inc., an accredited testing laboratory in Simi Valley, California, U.S.A. The hydrogen sulfide in the second sample of September 22 was more than 140 times the World Health Organization’s (WHO) daily guidelines and more than 3,000 times the WHO hourly gui - deline value. Methyl Mercaptan and demethly sulfide are responsible for the offensive odour around Webuye. The amounts found in both air samples are 12-17 times above the international threshold level of 2-10 ppb respectively. Water samples taken on October 11, 2007 were tested by a local laboratory. The sample taken at the Pan Paper’s point of discharge—into Nzoia River showed that Biochemical Oxygen Demand (BOD) and Chemical Oxygen Demand (COD) in the effluent was far above the limits allowed under the Environmental Management and Coordination (Water Quality) Regulations 2006. The effluent discharged into the river contained 4.5 and 6.2 times more BOD and COD respectively than the set limits.

The BOD of the collected samples was 125 mg/l while the COD was 312 mg/l. The legal limit under the regulation is 30 mg/l and 50 mg/l respectively. The effluent colour also did not meet environmental water quality standards. The measurement of 30 Hazen units was twice the permissible limit, which shows that little or no pollution is removed from the effluent before it is discharged into the river. Whereas the management has repeatedly promised to contain the pollution, as well as other environmental degrading activities—in reaction to pressure from different groups—its statements and actions, as well as those of the government show that there is no willingness to do that at the expense of the company’s economic interests. Incidentally, IFC has social and environmental guidelines, which a company should fulfil be - fore receiving grants. IFC promised to monitor Pan Paper’s ongoing compliance with World Bank policies and guidelines during the life of the project. In 1996, when IFC lent a further US$15 million to Pan Paper for an expansion of the pulp and paper mill, IFC did not demand a full environmental assessment. Instead IFC relied on information provided by the company and stated simply, “ Pan Paper has made com - mitment to fully comply with World Bank policies and guidelines.” In 2003, IFC promised more financial assistance for the restructuring of Pan African Paper Mills. Unfortunately, however, IFC’s monitoring of Pan Paper only involves reading reports submitted by the company and periodic site reviews during project supervision. As a result, the environmental situation resulting from Pan Paper’s industrial activities seems to deteriorate further. Henkel’s processes produce little effluent.

In order to minimise it, exact measurements are used in mixing chemicals. What is generated as effluent mostly consists of residual water from washed containers.

Given the environmental harmful nature of some chemicals and the lo - cation of the industry beside Ruiru River, next to Ruiru shopping centre, extensive coffee estates and residential areas, it is disappointing to learn that the effluent is ignorantly dumped on the ground where rain water can easily transport 36 Revista Internacional de Direito e Cidadania, n. 9, p. 29-42, fevereiro/201 1 KAMAU, E. C. it to the river. From the burning sensation of the eyes, it is also evident that the chemicals are air polluting. No serious cases of violation have been reported against the industry though. We assume that the strict by-laws of and regular controls by TMC restrain the industry’s beha - viour to a certain extent. However, the failure of the pollution control officers to measure the exact acuteness of the pollution means that total adherence by the industry to the TMC by-laws cannot be ascertained. The reluctance by TMC to strictly admi - nister its by-laws is also evidenced by the fact that, by 2005, the company had been hoarding very dangerous chemicals within its premises for three years, the usage of which the TMC had ordered a stop.

Either the Council had failed to give a decisive order to the company to dispose of the chemicals after treatment for toxic and hazardous properties, following the principle that companies should deal with their wastes by carrying out the disposal themselves and at their own cost, or it could be that a special arrangement existed between Thika and Nairobi pollution control officers and the company.

A general lack of environmental consciousness was depicted by a clue that the company was waiting for instructions from the TMC concerning where to dump the chemicals with Nairobi Municipal Council wastewater reservoir being the likely destination. Case study 2: Application of self- regulation mechanisms In this section, the activities of two indus - tries, the Agro-Chemical and Food Company (ACFC), which is a local company, and Beier - sdorf East Africa (BEA), a purely foreign com - pany, are presented. Both of them are located in municipalities void of by-laws and with slack monitoring and enforcement of pollution rules. ACFC is based in Muhoroni, in western province of Kenya, and produces alcohol and baker’s yeast.

Initially, much of its waste was discharged in the Nyando River. BEA is located in the industrial area of the Kenyan capital city, Nairobi, which is the most highly industry-con - centrated tow n of the country. It produces only cosmetics in the form of a range of skin products. ACFC experienced a tremendous fast gro - wth and a consequent expansion in production after its start-up in 1980. As a result, there was a drastic increase in wastewater. Though distillery effluent is normally free from chemically toxic substances, if discharged into the river without any treatment, it increases the biological activity and in turn depletes available dissolved oxygen in the water. Such interference with the ecosystem is destructive to aquatic life. River Nyando is a major source of live - lihood. Consequently, the upsurge in wastewater ignited public pressure, which the company had to put up with for years. This and finally the pollution charges made against the company in 1991 for emitting dangerous chemical waste into the river prompted the company to search for solutions. With the help of a team from the Ministry of Water Resources and the Ministry of Energy, ACFC identified a suitable and economi - cally sustainable effluent treatment plant (ETP) from VOGELBUSCH GmbH, the factory tech - nology suppliers, in 1992. The zero-solid-waste technology was erected and commissioned in two phases at a total cost of about KSh 115 million. That brought an end to constant conflicts with the public, as well as pollution accusations and charges.

After the installation of the ETP, the com - pany experienced financial benefits, which mo - tivated it to sustain the process. Save treatment of factory waste water, the plant was saving up to KSh 3 million monthly by 2000 as a substitute to furnace oil, which was previously used for generation of steam (for factory use in boilers). That is now replaced by biogas from the ETP. In addition, this development spurred the company to invest in more technology to improve the puri - fication process further 73 in order to fully remove the effluent colour and achieve zero emission levels and a reusable product. 74 BEA uses a wide range of chemicals as raw materials for its products. With a situation whereby no pollution standards exist in Nai - robi, no reasonable monitoring is done by the 37 Revista Internacional de Direito e Cidadania, n. 9, p. 29-42, fevereiro/201 1

POLLUTION CONTROL IN DEVELOPING COUNTRIES WITH A CASE STUDY ON KENYA.

A NEED FOR CONSISTENT AND STABLE REGIMES government and many loopholes exist in the legislation, the industry’s activities could be a real threat to the environment, as well as human health/life—bearing in mind the types of che - micals (e.g. hydroquinone) still used by some industries in production of cosmetics if the company did not have a self-regulation attitude. BEA is bound by its licence agreement with BDF, which obliges it to maintain certain standards in its operations. First, it uses only raw materials that are certified to the European stan - dards. They are mainly imported from Europe (mostly from Germany, Switzerland and France), but at times, though rarely, they are fetched from the Far East. Second, it manufactures, or have manufactured for it, pursuant to the agreement, all “BDF PRODUCTS in accordance with formu - lae, processes and procedures and other specifi - cations issued or approved by BDF. The quality of all BDF PRODUCTS and/or ingredients and raw materials in all BDF PRODUCTS shall be as specified and approved by BDF.” The high quality of raw material is meant to guarantee product safety to the consumers.

In order to maintain a high level of product quality in production, the industry proactively applies the so-called total quality management (TQM) 80 and also invests heavily in research.

In addition, the head quarters (HQ) carry out monitoring using a number of methods. First, it sends questionnaires on an annual basis through which BEA informs the HQ of any difficulties it might be facing and what it is doing and how long it would take to rectify the situation. Second, the HQ sends auditors to take samples, observe exhaust fumes etc.

If any rectification is required, the company is given a specific period of time to deal with the problem. Third, the auditors conduct follow-up audits to verify rectification. This may be done anytime after the expiry of the deadline without issuing prior warning. Fourth, BEA sends product specimens to the HQ for con - trol at the request of the latter. The request may be issued without advance warning. In spite of the profound gap in environmen - tal standards in Germany/Europe and Kenya, as well as their implementation, BEA nonetheless tries to be proactive through self-regulatory mechanisms. This has direct benefits to the envi - ronment, the consumers and the country at large

Japan

Keidanren, also known as the Japan Business Federation 1, is an economic organization with a membership comprised of 1,300 leading Japanese companies, 121 national associations of manufacturing industries, service industries and other major industries and 47 regional economic organizations (as of July 2013).

Keidanren’s mission as a general economic organization is to draw upon the vitality of corporations, individuals and local communities in order to support corporate activities that contribute to the self- sustaining development of the Japanese economy and enhance the quality of life for the Japanese people.

For this purpose, Keidanren builds consensus within the industrial community on a variety of important domestic and international issues and communicates with a wide range of stakeholders including political leaders, administrators, labour unions and citizens in order to achieve steady and prompt resolution of problems. Keidanren also strives to establish and maintain public confidence in the business community while working to resolve international issues and foster closer economic relations with various countries through policy dialogues with governments, the economic associations of various countries and international organizations. In particular, Keidanren promotes efforts to solve environmental problems grounded in the view that solving environmental problems is a common challenge for humanity and that the 1 Prior to its 2002 amalgamation with Nikkeiren (Japan Federation of Employers’ Associations), Keidanren was known in English as the Japan Federation of Economic Organizations. resolution of such problems is essential for the existence of companies and for their activities. This section gives an outline of the Keidanren Voluntary Action Plan on the Environment, a voluntary effort by the business community to solve environmental problems.

Ten-point environmental guidelines for Japanese enterprises operating abroad

1) Establish a constructive attitude toward environmental protection.

2) Abide by the environmental standards of the host country and make further environmental conservation efforts.

3) Conduct an environmental assessment and also take measures based on an assessment conducted after the activities have started.

4) Facilitate the transfer of environment-related technologies and know-how.

5) Establish an environmental management system.

6) Provide information on environmental measures.

7) Deal with environment-related issues in an appropriate manner.

8) Cooperate in the promotion of the host country's scientific and rational environmental measures.

9) Actively publicize the activities of overseas businesses regarding environmental considerations.

10) Ensure that head office understands the importance of environmental measures and establishes a support system

China

China's rapid industrialization has substantially increased pollution. China has some relevant regulations: the 1979 Environmental Protection Law, which was largely modeled on U.S. legislation, but the environment continues to deteriorate.^[4] Twelve years after the law, only one Chinese city was making an effort to clean up its water discharges. This indicates that China is about 30 years behind the U.S. schedule of environmental regulation and 10 to 20 years behind Europe. In July 2007, it was reported that the World Bank reluctantly censored a report revealing that 750,000 people in China die every year as a result of pollution-related diseases. China's State Environment Protection Agency and the Health Ministry asked the World Bank to cut the calculations of premature deaths from the report fearing the revelation would provoke "social unrest"

Pollution in China

Pollution is one aspect of the broader topic of environmental issues in China. Various forms of pollution have increased as China has industrialized, which has caused widespread environmental and health problems.

Soil contamination

The immense and sustained growth of the People's Republic of China since the 1970s has resulted in increased soil pollution. The State Environmental Protection Administration believes it to be a threat to the environment, food safety and sustainable agriculture. 150 million miles (100,000 km²) of China’s cultivated land have been polluted, with contaminated water being used to irrigate a further 31.5 million miles (21,670 km².) and another 2 million miles (1,300 km²) have been covered or destroyed by solid waste. In total, the area accounts for one-tenth of China’s cultivatable land, and is mostly in economically developed areas. An estimated 12 million tonnes of grain are contaminated by heavy metals every year, causing direct losses of 20 billion yuan (US$2.57 billion).

Waste

As China's waste production increases, insufficient efforts to develop capable recycling systems have been attributed to a lack of environmental awareness. In 2012 the waste generation in China was 300 million tons (229.4 kg/cap/yr).

A ban came into effect on June 1, 2008 that prohibited all supermarkets, department stores and shops throughout China from giving out free plastic bags. Stores must clearly mark the price of plastic shopping bags and are banned from adding that price onto the price of products. The production, sale and use of ultra-thin plastic bags - those less than 0.025 millimeters (0.00098 in) thick - are also banned. The State Council called for "a return to cloth bags and shopping baskets." This ban, however, does not affect the widespread use of paper shopping bags at clothing stores or the use of plastic bags at restaurants for takeout food. A survey by the International Food Packaging Association found that in the year after the ban was implemented, 10% fewer plastic bags found their way into the garbage.

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