MINISTRY OF ENVIRONMENT AND FORESTRY
MINISTRY OF ENVIRONMENT AND FORESTRYPUBLIC NOTICEEXTENDED PRODUCER RESPONSIBILITY (EPR) REGULATIONS 2020FORMAT FOR SUBMISSION OF MEMORANDAKindly read the EPR regulations and submit your comments in theformatbelow.Section/clauseProposed amendmentsPlease submit your memoranda/commentsepr@environment.go.ke by 5th June, 2020Dr Ayub MachariaFor: Principal Secretary1Justificationintheaboveformatto
LEGAL NOTICE NO. THE ENVIRONMENTAL MANAGEMENT AND CO-ORDINATION ACT(No. 8 of 1999)THE ENVIRONMENTAL MANAGEMENT AND CO-ORDINATION (EXTENDEDPRODUCER RESPONSIBILITY) REGULATIONS, 2020ARRANGEMENT OF REGULATIONSRegulationPART I — 25262728-Citation.Interpretation.Object and purposeApplication of the RegulationsExtended producer responsibility obligations.Execution of Extended Producer Responsibility ObligationsProducts Covered under Extended Producer ResponsibilityRegistration of Compliance SchemesApprovalof EPR by the AuthorityExtended Producer Responsibility PlanProducer Responsibility Organisation’sProducer Responsibility ObligationsCharging and Modulation offeesUse ofMembership Feesand IncomeProducer Responsibility AgreementsPRO GovernanceExemption from PRONumber of PROs per Waste StreamRegistrationand Operating licenseRenewalRecord Keeping and Submission of returnsRole of AuthorityEPR Schemes and Waste ManagementEPR and CountiesVoluntary Compliance and Mandatory ComplianceAudit, Oversight and CoordinationAppealsPenalties and Offences2
THEENVIRONMENTAL MANAGEMENT AND CO-ORDINATION ACT, 1999(No. 8 of 1999)IN EXERCISE of the powers conferred by section 86 of the EnvironmentalManagement and Co-ordination Act, 1999, the Cabinet Secretary for Environment andForestry, on the recommendation of the National Environment Management Authority,makes the following Regulations—THE ENVIRONMENTAL MANAGEMENT AND CO-ORDINATION (EXTENDEDPRODUCER RESPONSIBILITY) REGULATIONS, 2020PART I — PRELIMINARYCitation.1. These Regulations may be cited as the EnvironmentalManagement and Co-ordination (Extended ProducerResponsibility) Regulations, 2020.Interpretation.2. In these Regulations unless the context otherwiserequires—“Act” means the Environmental Management andCo-ordination Act, Cap 387, Laws of Kenya;“Actors” refers different players in the extendedproducer responsibility value chain.“Authority” means the National EnvironmentManagement Authority established under the Act;“Circular Economy” –refers toinitiatives raction ofmaximum value fromnaturalresources,closingof material loops andcreation ofnew value from materials that wouldotherwisehavebeenwasted.“Converter” means an entity that transforms twosecondary rawmaterials or combines twosecondary raw materials to create a newproduct“Consumer,” refers to end user of a product.“Compliance schemes,” refers to both individualand collective extended producer responsibilityschemes”.“Deposit Refund scheme” refers to a collectionsystem that requires a monetary deposit on aproduct at the point of sale. Consumers redeem thesurcharge when they return the product.“Entity,” refers to both individual persons and3
registered organizations’.“Extended producer responsibility”- refers to theobligation of a producer to reduce pollutionthrough environmentally sound practices in allphases of a product lifecycle including postconsumer and safe end of life stage.It includes butis not limited to design for re-use andrecyclability, creation of take back schemes,recycling, composting and other suitable recoveryand disposal measures.“Environmental friendly/ecodesign- refers to thepractice of reducing environmental degradationand pollution by making products that complywith environmental sustainability that includes butis not limited to minimal waste y,biodegradability and safe disposability.“Filler” refers to an entity that fills emptypackaging with their products before being placedin the market.“Free rider” means an entity that does notcontribute to a collective scheme but benefits fromits existence and action; it includes producers whofail to manage own products at the post-consumerstage; producers who under declare their volumes,or fails to demonstrate fulfilment of individualextended producer responsibility obligations,producer in a pooled scheme who fails to pay theirsubscriptions, submit accurate information orfulfil their membership requirements.“Importer” refers to an entity that introducers aproduct into the market from a jurisdiction outsideKenya boundaries.“Manufacturer” refersto an entity thattransformsraw material into finished good for sale or otheruse including intermediate processesthat involveproduction or finishing or semi-manufacturedgoods“Packer” refers a person or entity who uses ormodifies packaging materials in the production orformation of packaging.“Packaging,” refers to material in which a productis wrapped or covered with in order to protect it orprevent it from being contaminated, sold ortransported. in this regulations, packaging shallalso beconsidered asa product.4
“Producer” -refers toan entity that introducesgoods, products and packaging into the market byauthorised means includingtransformation of rawmaterial andinto finished goods or productfor sale,or other use including intermediate facturedgoods,sellerofalreadymanufactured, orimporters, manufacturers,fillersand converters, distributors of material, productsand packaging.,expected to assume extendedproducer responsibility obligationsfor productsthatthey puttothe sibility for aproduct when it is discarded bya consumer or when it becomes waste.“Product” – refers a good or packaging introducedin the Kenyan market by any entity or personsthrough production, importation, franchising,marketing, and distributionoutlets and channelsfor consumption by the consumer.“Producer responsibility organization”- refers to amembership organization set up to assume legalobligation to implementextended producerresponsibility on behalf of its members in a pooledcompliance scheme.“Product Lifecycle,” refers to environmentalsustainability of a product in all its stages fromraw material extraction, design, production,transportation, distribution, consumption/use,repair and maintenance, recycling and end of lifedisposal.“Individual compliance scheme”- refers to anenterprise based execution of extended producerresponsibility obligations assumed by anindividual producer.“Pooled compliance scheme”- refers to acollective scheme to fulfil extended producerresponsibility obligations by more than oneproducer through a producer responsibilityorganisation.“Mandatory initiatives” means refers to initiativesinitiated or implemented through governmentregulation.‘National Environmental Tribunal” means theTribunal established under section 125 theEnvironmental Management and CoordinationAct, 1999;5
Recovery- means retrieval of materials from wasteit includes repair, refurbishment, recycling,remanufacturing, composting, power generation,or any other initiative aimed at extracting valuefrommaterial that would otherwise have beendiscarded as waste.“Take back”- refers to collection andtransportation systems put in place for consumersto return their post-consumer products.“Waste Stream”-meansflow of a waste type fromdomestic or industrial area through the finaldisposal“Waste Treatment” - means the physical,mechanical biological, thermal, chemicalprocessing of waste with a view of reducing itsimpact to the environment.“Waste Management,”- refers to control andmonitoringofproductiontominimisewaste,handling of post-consumer productsincluding segregation at source, collection rial recovered fromwaste, treatment andsafedisposal of unrecoverable materials.Object and purpose.3. (1) The object and purpose of these Regulations ity schemes for all products and packaging inall phases of their life cycle to enhance environmentalsustainability through―(a) Reduction of pollution and environmentaldegradation(b) Sustainable use ofnatural resources(c) Promotion of circular economy(d) Reduction of waste at source;(e) Promotion of environmental friendly products’designs and packaging; and cleaner productionprocesses.(f) Promotion ofa culture ofenvironmentalconsciousness andresponsibility fromproduction to final safe disposal; and(g) Inclusion of the environmental costs of end-oflife management of a product in the sale priceof a product so as to promote adoption ofdesigns that reduce environmental impacts ofproducts.Application of the regulations4. These Regulations shall apply to all extended producerresponsibility compliance schemes both individual and6
collective as well as producer responsibility organisationsfor the products that have been identified by theAuthority.Extended producerresponsibility obligations.5. (1) Every producer shall bear extended producerresponsibility obligation to reduce pollution andenvironmental impacts of the product that theyintroduce in the market.(2) A producer shall design products and packagingmaterials that minimize waste, facilitate reuse,recycling, recovery and are environmentally friendlyat their end of life.(3) Every producer shall establish post-consumercollection and take back schemes system which mayinclude a deposit refund system.(4) Every producer, shall take financial and or physicalresponsibility for the management, treatment anddisposal of their post-consumer products and end oflife treatment for the waste generated by theirproducts;(5) A producer who markets a product assumesresponsibility for taking back, collecting andtreating the waste resulting from the products thatthey introduce in the market.(6) Every producer shall provide updatedinformation on quantities of products theyintroduce into the market, recyclability andreusability, interpretation of packaging labels,market traceability mechanism and any otherprescribed information though reporting systemestablished by the Authority.(7) A producer shall provide consumerwithinformationon their role onreuse, ll raise awareness onmanagement of post-consumer productsthat theyintroduce in the market.(8)Every producer shall register and providereports of the status of their implementation oftheir extended producer responsibility obligationsthrough the reporting system established by theAuthority.(9)Producer may carry out product life cycleassessment in relation to their products forenhancing environmental sustainability.7
(10)A producer shall put in place circulareconomy initiatives and any other measures toreduce impacts of their product on health andenvironment.Executionof EPRobligations6.(1) The producers shall fulfil their obligations bysetting up individual enterprise-based extendedproducer responsibility compliance scheme; orcollectively through a pooled compliance scheme.(2) Individual enterprise based scheme shall , disposal and reporting systems for wastegenerated by theirproducts.(3) The individual compliance scheme operator or theproducer shall be responsible for the organisation,management, operational and reporting aspects ofthe execution of their obligations.(4) A Producer can transfer part or their fullobligations subject to membership agreement to acollective compliance scheme through a producerresponsibility organisation, in which they takemembership.(5) The collective extended producer compliancescheme obligationshall include but not limitedtopayment of membership fees toa registeredandlicensedproducer responsibility organizationwhichshallexecute the obligationsonbehalf of itsmembers.(6) An individual producer who markets a productshall assume responsibility for collecting andtreating the waste resulting from the products ithas brought to ibility(7) Lack of an established producer responsibilityorganisation mechanism shall not exempt anyproducer from individual responsibility.7. (1) The products coveredunder extended producerresponsibility obligationsshall primarily beproductsthatnegativelyimpact the environment and health, pose achallenge in recycling or recovery operations andwhichgenerate high management costs due to—(a) quantities involved;(b) hazards they represent;(c) health risks they pose; and(d) Costly recovery operations.8
(2)The Authority shall, in addition to the products listedin theFirst Schedule,provide a list of productswhichfromtime to time may besubjectedto extended ance8.(1) No person or entity shall produce, import, marketor distribute a product unless they have obtainedproducer responsibility registration from theAuthority.(2) The Registration granted under this regulationshall be valid for a maximum period of four years;unless revoked, suspended or cancelled by theAuthority.(3) The Authority shall issue certificate of registrationfor extended producer responsibility for sations.(4) An individual producer shall obtain a producerresponsibilitynumber (IPRN) and members of aPRO shall obtain a Producer ExtendedResponsibility Number (PERN) from theAuthority.(5) For subsequent years of operation, an annualoperating license shall beissued for individualproducers’ compliance scheme and producerresponsibility organisations’ that fulfil theirperformance standards as set out in the work plan,fulfil reporting obligations and assessed to be ofgood standing by the Authority.(6) The operational license can be revoked, suspendedor cancelled if the individual producer complianceschemeor the producer responsibility organisationdoes not comply with statutory requirements, meetperformance standards set out in the work plan orhonourextendedproducerresponsibilityagreements entered intoby the actors in the pooledscheme.(7) Application for registration and renewal for theindividual producer responsibility compliancescheme and Collective Producer ResponsibilityOrganisation shall be donein standard forms andsubmitted to the Authorityas prescribedunderSchedule Two.(8) The Authority shall maintain an updated registerof all registered producer responsibilityorganizations which are in good standing whichshall be made available to the public.9
(9) Requirements for registrationor renewalof aproducer responsibility organization shall be –(i) Proof of registration as acompany limited byguarantee;(ii) Provide a list ofmembership and proposed feestructure of the membership;(iii)Provide a two-year work plan and budget; thework plan and budget shall be reviewed everytwo years.(iv) Provide an updated list of membershipformingorrenewingmembershiptotheproducer responsibility organization;(v) Provide operations and management planof thescheme including details of directors, physicaladdress and lease agreement of the facility;(vi) Provide a sample copy of contracts whenregisteringor actual copies of contractsenteredinto during, renewalwithall the wastemanagement service providers includingcollectors, transporters’ andrecyclers;(vii) Payment of theprescribed fees;(viii) Provide signed minutes of engagementwith proposed actorsof the extended producerresponsibility scheme;(ix) Provide a dispute resolution mechanism for theactors in the scheme.(10)The Authority shall issue an interim permitfor a period of ninety days for registration toenable the producer responsibility organizationundertake stakeholder engagement.Approval of EPR ComplianceScheme by Authority9.(1) Theindividualproducerresponsibilitycompliance scheme systems shall be approved byAuthority for a maximum period of four ates proof of operational,technical, management and financial capacity tomeet their EPR obligations and terms ofreference established by government.(2) The Producer Responsibility Organisation shallbe approved by the Authority for a maximumperiod of 4 years (renewed) subject to fulfilmentof conditions set by the Authority and that thePRO demonstrates technical, managerial,financial and staffing and operational capacity tofulfil the requirements set out in the articles ofassociation andagreements setby the membersand stakeholders’ in the value chain.(3) A producer may contract service providers or anentity not controlled by the producer to organizea system for collecting and treating its end-of10
life products.These parties however, shall not becertified, however, the producers shall remainindividually responsible.(4) Each entity that markets products remainsresponsible for the proper management of wastefrom the products it has brought to market.(5) The producers shall also be shareholders of theproducer responsibility organization to whichthey belong.(6) PROs established as organisers, may contractdistributors to act as collection and take backpoints for their discardedproducts.EPR Plan10.(11) Every individual and collectiveextended producerresponsibilitycompliance schemes shall submit a two-yearwork plan to the authority outlining the following—(a) Baseline for the products and packaging handled;(b) Minimum targets for reuse, recycling or recoveryoperations;(c) Collection, logistics, recycling and compostingsystem and end of life disposal;(d) nvironmentalsustainabilitycriteria as stipulatedunder regulation 12;(e) Public awareness and consumereducation andinformationprogram on waste segregation and properhandling of post-consumer products;(f) Verifiableof paid up membership;(g) List of service providers andactors in the scheme;(h) Eco-design guidelines for the products handled by thescheme;(i) A mechanism of controlling banned or dangeroussubstances’ in products;(j) An annual reporting mechanism;(k) Training and capacity building of members andactors in the scheme;(l) Organised monitoring of members, producttraceabilitysystem, inspections with a view ofapplying sanctions on producers who fail to meetexpected requirements;11
(m) Model of financing the scheme and itemized budgetbased on actual cost;(n) Any other actions necessary for execution ofresponsibility or itemsprescribed by the Authority.ProducerResponsibilityOrganisations obligations.11.(1) The Producer Responsibility Organisation shall ility obligations on behalf of its members.(2) The producer responsibility organization shall take theorganisational andmanagement responsibility, inwhole or in part, for collection, sorting, materialrecovery, recycling, treatment and end of lifemanagement of its member’s products.(3) Individual members of a collective complianceschemeremain accountable for their extendedproducer responsibility obligations.(4) The amount, ceiling and collection methods for thefinancial contribution under sub regulation (1) shall beas set out in the terms of reference of the contract.(5) The members of the PRO shall provide financialcontributions which shall be used in their entirety toaccomplish the extended producer responsibilityobligations as set out in sub regulation (10).(6) The Producer responsibility organisation shall beresponsible for modulation of EPR fees according toestablished environmental criteria on product design,useful life, and end of life management as set out inthe membership registration requirements and asreviewed during the annual members’ generalmeeting.(7) A producer responsibility organization shall notengage in lucrative or profit-making ends in fulfillingthe obligations set out in these Regulations.(8) Subject to conditions and limitations set out in theproducer responsibility organization contract, a
Extended producer responsibility obligations. 5. (1) Every producer shall bear extended producer responsibility obligation to reduce pollution and environmental impacts of the product that they introduce in the market. (2) A producer
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