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A review of Extended Producer Responsibility (EPR) practice and regulation in Kenya

Emerging from the need to address products’ environmental and health impacts, Kenya, through the Ministry of Environment and Forestry, established the Extended Producer Responsibility (EPR) Regulations from the Environmental Management and Co-ordination Act No. 8 of 1999, that speaks to the duty of producers in ensuring sustainable waste management and operating the “polluter pays principle” as an expected norm in the rules throughout their products’ life cycle. Within the same efforts to champion adjacent environmental management and conservation in Kenya, the Senate passed the Sustainable Waste Management Bill, 2021, with an adjacent objective to the EPR regulations to enable efficient waste management, a move that places Kenya at a thrust towards the realisation of the right to a clean and healthy environment. These regulations obliged Producers and Producer Responsibility Organizations (PROs) to achieve the objectives of the EPR regulations and the newly passed Sustainable Waste Management Act 2022 to its utmost fulfillment of its objectives in the environment.

The results of this effort is geared at the reduction of pollution and environmental degradation, sustainable use of natural resources, promotion of circular economy, reduction of waste at the source, promotion of environmentally friendly product design and promotion of a culture of environmental consciousness and responsibility.

Apart from the international laws developing the foundation for the practice of Extended Producer Responsibility regulation in Kenya, Kenya seeks to ensure active legislation on the same through the provisions of the Constitution under Article 10 sub-section 2 and Article 42 to safeguard its principle and value of governance that is provided within the same. On that note, the Environmental Management and Coordination Act No. 8 of 1999 was provided to set an outstanding beginning for the country to align its international and national principles on environmental management regulation as part of environmental management and conservation efforts. The Act brings out the adoption of the “polluter pays” principle, which is a key foundation in environmental governance, fulfilling the realization of the Constitution of Kenya’s provisions on environmental management and conservation and also an essential legal tool for the development of the EPR for the nation especially to take the point of plastic leaks into the marine environment. Kenya is notably an internationally bound party to the implementation of general obligations on the minimization of the generation of hazardous wastes and relevant to the “polluter pays” principle that brings about the efforts to implement the EPR principle in Kenya’s legislations, i.e., several Multilateral Environmental Agreements (MEAs) compose of the Stockholm Convention on Persistent Organic Pollutants, the International Convention on Civil Liability for Oil Pollution Damage, the 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972 and the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal.

The EPR regulations in Kenya establish major aspects in ensuring such responsibility when it comes to all products and packaging in all phases of their life cycle. These regulations look at the obligations that producers are required to fulfil under their extended regulations through options such as Collective EPR Schemes, Individual EPR Compliance Schemes or transfer of their individual responsibility to Collective EPR Schemes. Additionally, the regulations touch on the responsibilities of Producer Responsibility Organizations (PROs) who have been delegated the duties of EPR obligations on behalf of producers from collection, sorting, material recovery, recycling, treatment, and end-life management of its members’ products. It also adds the requirement of a PRO per product in the market. EPR plans also are part of the regulations and key implementing factors of the EPR practice where the working EPR plan is formulated and submitted to the National Environmental Management Authority every two years with the information containing minimum targets for reuse, recycling, or recovery operations; collection, logistics, recycling and composting systems and end of life disposal; public awareness and consumer education information program on waste segregation and proper handling of post-consumer products; annual reporting mechanisms; training and capacity building of members; financing models for the Scheme and any other actions necessary for execution. Finally, the establishment of functioning waste management services and EPR schemes is a similarly essential part of implementing sustainable practical regulations for the producers and PROs through the devolved government of counties in the establishment of the former. This is supported by effective Public Private Partnerships (PPPs) to establish and operate collection, take-back, disposal and setting up material recovery and sustainable waste management facilities.

Similar to the EPR regulations, the Sustainable Waste Management Act 2022 also provides related EPR regulations that later ensued to the Extended Producer Responsibility Regulations 2022 (EPR) by imposing obligations on both public and private entities for an environmentally friendly and sustainable approach to mandatory producer responsibility practices which is one of the provisions of the Act. It establishes the obligations of producers dealing with the post-consumer stage of their product life cycles for the reduction of pollution and also following the EPR regulations and their respective obligations on the same. It also provides additional private sector responsibilities to prepare a 3-year waste management plan within 6 months of the coming into force of the Act and additionally to adopt cleaner production principles such as improvement of production processes through conserving raw materials and energy and reducing toxic emissions and wastes, identify and eliminate potential negative impacts of their products, enable the recovery and reuse of the product where possible, reclaim and recycle and incorporate environmental concerns in the design, process and disposal of the product. The Act also provides for the establishment of the Waste Management Council, through the Cabinet Secretary, that will be obliged with the function of enhancing inclusive inter-governmental coordination for the national sustainable waste management strategy, promoting inter-county waste management partnerships in consultation with county governments, recommending incentives to promote sustainable waste management and mobilizing of resources for the financing of the waste management sector.

It is important for producers and PROs to understand the practicality of the EPR regulations through the Sustainable Waste Management Act 2022 principles to ensure strategic planning on costs of compliance and avoid unnecessary penalties as a result of non-compliance for private entities with respect to the Act. It sets on the following principles that operationalize effectively, i.e., the precautionary principle which involves control of any suspicious activity from environmentally harmful consequences, the polluter pays principle that involves the payment of any environmental damage through pollution by the polluter, the zero waste principle which seeks to have products and processes designed and managed in a manner that ensured reduction of volume and toxicity of waste to an extent that it can be utilized to provide wealth creation, employment and reduction of pollution and also the provision of incentives to landowners who manage land and watersheds for ecological services and to conserve natural resources.

Lastly, the 2014 National Environment Policy pursues the development of an integrated national waste management strategy to help with the effective management of the country’s solid waste challenges and through the 2014 National Solid Waste Management Strategy, a foundation for the formulation of policies and laws provided with EPR as one of the approaches that would support in the realizing of the objectives of an integrated waste management, promotion of resource recovery, re-use and recycling.

Conclusively, Kenya’s efforts to ensure sustainable waste management, resource mobilization and collaborative efforts mainly remain compliant with the full obedience of producers and PROs in achieving positive results for the environment.

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