Ffff
Introduction
On 8th July 2022 a new dispensation on waste management was ushered with the signing of the Sustainable Waste Management (SWM) Act 2022 by the President of the Republic of Kenya. This Act ushers in a new way of handling waste management and governance including the diverse value chains.
Waste transporters are one of the key Waste Service Providers (WSPs) within the value chain (SWM Act 2022, section 2). The Act goes further to describe obligations for the WSPs and penalties for non-compliance. This category of WSPs have been suffering from double charges from licensing by NEMA and county governments.
Before enactment of the SWM Act 2022, waste management was regulated using the Environmental Management and Coordination Act (EMCA) 1999 and subsidiary Waste Management Regulations (2006). For one to be a waste transporter, there is a requirement by the Waste Management Regulations 2006 to get a licence from NEMA. Section87.2 of EMCA 1999 states that
| (2) | No person shall transport any waste other than—(a)in accordance with a valid licence to transport wastes issued by the Authority; and(b)to a wastes disposal site established in accordance with a licence issued by the Authority. |
Counties, upon realizing their devolved waste management role also imposed a similar license to Waste transporters epecially under the garbage category. Some Counties did not have devolved legislation but based their charges on the national waste management regulations 2006. The transporters had no choice but to pay both NEMA and County.
What will change in the new dispensation?
The SWM Act 2022 provides in section 8.1(d) the roles to be played by NEMA in waste management. On licencing, the Act provides that NEMA shall “save for where Counties have jurisdiction, issue licences for waste management activities”. The Constitution of Kenya 2020 Fourth Schedule Part 2(g) devolved refuse removal, refuse dumps and solid waste disposal to Counties. Refuse waste is that which is not hazardous and is generated at domestic household level and commercial Centres.
Since refuse waste management is devolved, it is crucial to look at the role played by both NEMA and the County Government. It is evident that counties are players in waste management in the sense that they receive money from residents to manage waste. Counties operate waste transportation vehicles, heavy loading machinery even for moving waste in dumpsites. Can counties regulate their own transport vehicles? Certainly there will be a conflict of interest and these vehicles will go unregulated. Hence it is expected that NEMA will continue issuing these garbage transportation licenses. The waste transporters at County level will hence continue to double pay for. They will save Kshs 3000 for first application and Kshs 5000 as annual licenses as provided in Second Schedule of Waste Management Regulations 2006.
However, we must appreciate that waste transportation goes beyond just garbage. It also includes hazardous waste generated from industries and medical facilities, electronic waste and chemicals just to mention a few. Although generation of this hazardous waste happen in Counties, jurisdiction over its management lies with NEMA. Hence licensing for transportation of hazardous waste still remains with NEMA.
Therefore, how will the new dispensation for waste transportation look like moving forward? We anticipate that NEMA and counties will meet and clearly describe the waste management activities under each jurisdiction, avoiding subjecting the WSPs to double licensing. These agreements will be captured in the new revised waste management legislation at national and county level.
At county level, the SWM Act 2022 prescribes that waste will be sorted at source into organic and inorganic fractions which will be taken to the material recovery facilities for further sorting, composting and sale of valuables to recyclers. These material recovery facilities will be designated like so by Counties and licensed by NEMA.
The waste transporters are the only ones authorized to move waste from the point of generation to the material recovery facility (SWM Act 2022, section 12). A decision will need to be made whether the waste will be carried using separately compartmentalized tracks or through a schedule of collection where different fractions are collected different days. This will be a major section in the County waste management legislation to be developed soon.
At the material recovery facility, the waste will be sorted and valuables recovered (SWM Act 2022, section 14) such as plastics, paper, metals, and glass among others which need to be moved to the waste recyclers. Due to economies of scale, most recyclers are located in major towns, and hence most counties move waste outside their borders. Counties do not have jurisdiction over waste management activities beyond their borders (SWMA, 2022 Section 9.3) unless where there exist a framework for intercounty waste transportation and disposal. Movement of waste across counties hence remains the jurisdiction of national government and in this case NEMA. In this regard, NEMA retains licensing role for movement of waste across counties especially for recovered materials being taken to the recyclers.
The SWM Act 2022 section 2 provides that the recovered materials need not to be regarded as waste. NEMA and the Cabinet Secretary are tasked to consult and issue a Gazette notice to exclude some materials from being regarded as waste especially where there is proof of the material being reused, recycled or recovered. For instance, there is existing evidence that plastics, metal, glass, and paper are reused and recycled extensively. Hence the SWM Act 2022 requires that these materials cease to be regarded as waste when recovered. This therefore implies that some of the waste transportation licenses that are being issued by NEMA will have to cease when this recategorization is finalized. While this may imply some loss of revenue to NEMA, it will help to ease doing business in Kenya by the WSPs.
Private sector players can hasten the process of recategorization of waste by applying to the Authority for approval indicating the need for exemption of materials that are being reused, recycled and recovered (section 2 of SWM Act 2022). This will make the private sector waste service providers benefit quickly from this incentive provided by the SWM Act 2022.
In addition, there will be residual waste which will need to be transported to the sanitary landfill for proper treatment and disposal. A decision in the revised waste management regulations of 2006 as well as the County waste management legislation is needed on who is to move this waste to the landfill and what is to be paid to dispose this waste.
The new waste transportation scenario in Kenya
What will be the new scenario for the waste transportation in Kenya going forward? From the discussion above it is evident that
1. Waste transportation licenses for refuse waste is the jurisdiction of NEMA.
2. NEMA and the Cabinet Secretary are expected to exclude materials that are reusable, recyclable and recoverable from the definition of being waste. This implies that waste transportation licenses initially issued to transport these recovered valuables may also cease.
3.Counties only have jurisdiction over refuse waste management within their boundaries.
4. Any transporter of waste not recategorized as explained above especially those moving waste across the counties should be licensed by NEMA.
5. Hazardous waste transportation licensing is the mandate of NEMA.
What are the new gains in waste transportation?
Kenyan waste transporters can proudly celebrate the following gains from the SWM Act 2022.
1. Recognition of this sector as playing a crucial role in the waste management value chain. Their role is clearly defined in section 12, 14, 16.2c, 19.4h; 20.1b. This recognition sets the sector aside as the only ones authorized to move waste from point of generation to the MRF or to the sanitary landfill.
2.Every waste generator is compelled to seek services of a waste transporter (section 20) to move waste to the material recovery facility and finally to the landfill. In this regard, their customer base is already established and coarsed to comply, hence making it a lucrative sector to invest in.
3.Clarity on role of NEMA and Counties with regard to licensing (section 8.1d) eliminates double licensing, reduces expenditure on licencing, eases compliance handicaps and assures ease of doing business.
4.The new definition of waste is dynamic since it allows for the Cabinet Secretary to consult with NEMA and exempt some materials to be regarded as waste especially those that could be reused, recycled and recovered. This provision is important especially to producers that are subject to Extended Producer Responsibility (section 13) since they will not be required to hire special licenced trucks to move their products from the material recovery facilities to the recyclers. Hence a truck that supplies beverage packed in PET plastic bottles to a remote part of the country can make a return trip loaded with the used bottles for recycling. This will contribute to reductions in costs or running Extended producer responsibility schemes.
Conclusion
It is evident that the new SWMA 2022 has come in timely to streamline waste transportation and licensing challenges to eliminate ambiguities that existed before, which disadvantaged the WSPs. However, further clarification is still needed at the county level and hence each county must develop its own customized waste management legislation. Waste transportation is henceforth an expanded investment opportunity capable of creating many jobs for Kenyans.