Audits, Environmental Impact Assessments, Air pollution, Evidence, Damages, Standing, Inspections, Jurisdiction, Prevention
The Appellant appealed against an order issued by the Respondent to close a facility used as a petrol filling station in Nairobi. The Respondent’s close order, which led to this appeal, was communicated to the appellant following submission by the Appellant of an Environmental Audit Report on the facility and a site visit by the Respondent’s officers. The Appellant’s grounds of appeal were, inter alia, that the Appellant had not been given a chance to be heard before the close order was issued by the Respondent; that the close order was illegal and unlawful as it did not conform to the mandatory provisions of law, especially the Environmental Management and Co-ordination Act (EMCA); and that there was no likelihood that continued operation of the station jeopardized the environment in any way. The respondents stated that the Audit Report prepared by the Appellant’s expert presented a finding that the petrol filling station presented a major significant risk of harm to the environment and public health. The Tribunal held that the Appellant’s operations were not only not in compliance with the law, they also posed significant risk of damage to public health and the environment. The Appellant’s environmental audit expert presented a finding of “major significant impacts” in the audit report. The finding was preceded in the audit report by a clear indication that “the operation of the petrol station will continue to expose it as a high fire risk activity.” Further, the expert presented a statement that fuel storage next to water supplies could contaminate the water. The Tribunal was also of the view that the petrol station lacked a forecourt to prevent soil contamination with oil, lacked properly constructed underground petrol storage tanks, lacked a proper drainage system, did not pre-treat oil wastes before channeling them into a nearby storm water drain, that the facility lacked a canopy for proper air circulation, that the petrol station was too close to a bus stop, that the facility used part of a public side walk and bus stop, that the facility lacked proper ventilation, that it was located on a high speed section of the road close to a roundabout, that it obstructed pedestrians and vehicles on a section of the road and that it presented a high risk of fire. It finally found that the location of the Appellant’s facility did not allow for necessary remedial measures to be taken to bring the facility and its operations into compliance with the law. The Tribunal dismissed the appeal.