The Ministry of Environment and Forestry completed the development of the Draft Extended Producer Responsibility Regulations 2021 (EPR). The aim of the regulations is to provide a framework for the establishment of mandatory EPR Schemes in the country to enhance resource use efficiency, stimulate innovation, spur recycling and reduce the amount of waste destined for final disposal. 

Since the late 1980s, the concept of EPR has become an established principle of environmental policy in an increasing range of countries. It aims to make producers responsible for the environmental impacts of their products throughout the product chain, from design to the post-consumer phase to alleviate the burden on counties and taxpayers for managing end-of life products, reduce the amount of waste destined for final disposal and increase rates of recycling. To be compliant with the EPR regulations, producers must join a Producer Responsibility (PRO) or elect to join an Individual Compliance Scheme.

What is an EPR Scheme?

Extended Producer Responsibility is defined as an environmental management approach in which a producer’s responsibility for a product is extended to the post-consumer stage of a product life cycle.

Who is a Producer?

A producer is any entity that introduces goods, products and packaging into the country using authorised means by manufacturing, importing, distributing, converting, selling or reselling or otherwise brings as per the regulations.

What is a PRO?

Producer Responsibility Organization (PRO) refers to a membership organization set up to assume legal obligation to implement EPR on behalf of its members (producers) in a collective compliance scheme.

What is an Individual Compliance Scheme?

Individual compliance scheme refers to an enterprise based execution of extended producer responsibility obligations assumed by an individual producer of a sole product.

How to Ensure Compliance with EPR 202o

• Each producer must join or participate in establishing a Producer Responsibility Organization (PRO) or Individual Producer Scheme that is registered with the National Environment Management Authority (NEMA) within six months of the enactment of the regulations. The registration shall be valid for a maximum period of four years, unless revoked, suspended or cancelled by the Authority. 
• Each individual producer and PRO shall obtain a producer responsibility number (IPRN) and Producer Extended Responsibility Number (PERN) from the Authority respectively.
• Compliant schemes to obtain registration and annual operating licenses in subsequent years of operation.
• NEMA may allow more than one PRO to accommodate material variation of the product
• The Authority shall issue an interim permit for a period of 90 days for registration to enable
• the PRO to undertake stakeholder engagement.
• The regulation recognises two main phases of establishing an extended producer responsibility compliance scheme — Voluntary and Mandatory Schemes. 
  • Voluntary initiatives- typically undertaken by industry, and aimed at piloting an EPR compliance scheme;
  • A voluntary scheme can operate for a period of two years thereafter transition to a mandatory scheme.
  • Mandatory scheme is a regulated scheme, registered, licensed and operated in compliance with these regulations

PRO Obligations

• Collection, sorting, material recovery, recycling, treatment and end of life management of its members’ products. 
• Modulation of EPR fees according to established environmental criteria on product design, useful life and end of life management as set out in the membership registration requirements and as reviewed during the annual members general meeting.
• Subject to conditions and limitations set out in the PRO contract, a proportion of the waste recovered may be set aside for reuse or for recovery of usable parts.
• Market development for the secondary raw materials for the products under their scope.
• Restrict or ban all harmful and dangerous substances that undermine environmental sustainability in the products of its membership.
• Set minimum targets for reuse, recycling and recovery for its members and offer incentives for waste collectors and informal waste holders to encourage sorting of waste at source.
• Provide updated information on product quantities, recyclability and reusability, interpretation of packaging labels, market traceability mechanism, and any other prescribed information.
• Organize monitoring of its membership activities to ascertain that objectives are being achieved and to trigger inspections in view of applying sanctions to members who fail to fulfil their membership obligations.

Counties’ Roles in Implementing EPR

Waste management as a devolved function puts county governments at the heart of collection and disposal of waste in their respective jurisdiction, except hazardous waste. In order to meet recycling and recovery work-plan objectives, PROs may sign agreements with counties by which the counties pledge to implement separate collection and sorting of end-of-life products according to technical instructions that are communicated to residents under their jurisdiction.

Requirement for PRO Registration

• The PRO shall comply with objectives of waste prevention, and waste management plans and targets set out by the jurisdiction of county or counties within their area of operation.
• A PRO may be required to communicate with County Governments to submit county specific information on quantities of waste covered and that have been collected and managed and declared in their territory. A PRO shall comply with this request.
• A PRO shall undertake to collect products at no cost, regardless of market conditions for raw materials on behalf of the county.
• A PRO may enter into public private partnership projects with counties to establish material recovery facilities and other recovery initiatives in its operational area of jurisdiction.

Requirements for interim registration: 

1. Minutes of the meeting of sector members attended by at least 30 companies, the interim officials, the resolution and a reserved business name after the meeting 
2. List of membership

Requirements for registration/renewal 

• Proof of registration as a company limited by guarantee as provided by the Companies Act Kenya 
• Updated list of membership and fee structure of the membership. 
• Provide an EPR plan (see Schedule Four of EPR Regulations 2021) 
• Signed minutes of meetings with relevant actors 
• Provide copy of lease agreement of the facility of operation 
• Payment of the prescribed fees to the Authority 
• Provide a dispute resolution mechanism for the actors in the scheme 
• Ensure that the Articles and Memorandum of Association of the company declares that the sole business of the company is to undertake EPR obligations on the specific products. 
• The directorship and membership of the company comprises of members of the PRO 
• Memorandum of Association to declare change of Directorship every two years 
• EPR fees structure agreed among members calculated using guidance provided in Schedule Nine 
• (For renewal), submit a progress report on the achievement of set targets.