Manufacturers and importers of packaged products, lighting and electronic equipment have until 26 August 2020 to comment on draft Extended Producer Responsibility Regulations that will impose onerous waste management responsibilities.
In a significant policy shift, the Minister of Forestry, Fisheries and Environment has abandoned plans to use government-managed Industry Waste Management Plans (IndWMPs) to promote waste reduction, recycling and the “circular economy” for the paper and packaging, lighting and electronic equipment industry sectors. Instead the Minister proposes imposing extended producer responsibility (“EPR”) obligations on these sectors which will allow a greater degree of industry-management.
What is ‘Extended Producer Responsibility'?
EPR involves requiring “producers” of certain products that result in the generation of waste to take responsibility for that waste after the products have been sold (i.e. during the “post-consumer phase”) and to establish schemes to collect, reuse, recycle, recover energy from, and /or dispose of this waste. The intention is to promote a “cradle-to-grave” approach that will incentivise producers to design and package products in ways that minimise the generation of waste and promote efficient resource use.
The National Environmental Management: Waste Act No. 59 of 2008 (‘Waste Act’) defines EPR measures as measures that extends a person’s financial or physical responsibility for a product to the post-consumer stage of that product’s life cycle. These measures include: waste minimisation programmes; financial arrangements to promote the reduction, reuse, recycling and recovery of waste; awareness programmes to inform the public of the health and the environment impacts of waste emanating from the product; and any other measures to reduce the potential impact of the product on health and the environment.
Drafts published for comment
The Waste Act empowers the Environment Minister, after consultation with the Minister of Trade and Industry, to identify a product or class of products to which EPR will apply and to specify the EPR measures applicable to that product or class of product (section 18(1)).
On 26 June 2020, the Environment Minister published the following documents for comment:
(For the purposes of this article we refer to the above products as “EPR products”.)
Who will be affected?
The draft EPR Regulations apply to any person or category of persons who is engaged in the commercial manufacture, conversion, refurbishment or import of any new or used EPR products (referred to in the draft EPR Regulations as a “producer”). Manufacturers and importers of packaged products will be affected because they fall within the definition of “producers” of packing materials even if they are not importing or manufacturing lighting or other electrical and electronic equipment.
Any organization or person who is engaged in, or plans to be engaged in, the commercial manufacture, conversion, refurbishment or import of any new or used lighting or electronic product or who imports goods enclosed in packaging, should check whether the products in question are EPR products. If so, they would be well advised to begin the process of working out how they will comply with the potentially onerous EPR obligations when they become law.
What is the effect of EPR?
All existing producers of EPR products will be required to register with the Department (draft EPR Regulations, reg. 4(1)) and to develop and implement an EPR scheme or to join another scheme (reg. 5(1)) The draft EPR Regulations prescribe:
The draft EPR Regulations impose such significant obligations on producers that they will be compelled to join a producer responsibility organization (see below) which can fulfil them on its behalf.
For example, producers are required to establish, implement, finance, audit and manage the data of the EPR Scheme. They must also: collect extended producer responsibility fees; submit reports every six months, collate and submit data to the South African Waste Information System; conduct life cycle assessments of EPR products and use the result to design more environmentally friendly products, and reduce waste; promote small businesses; develop and implement a broad-based black economic empowerment (BBBEE) transformation charter; develop and establish secondary markets for recyclable materials; implement mandatory take back of all EPR products at the end of its life; and implement environmental labels and declaration for EPR products.
A person convicted of contravening the EPR Regulation would be liable to a fine, imprisonment for a period not exceeding 15 years, or both. A producer who does not comply with the Regulations may also have their registration revoked and/or be compelled to join another scheme.
Producer Responsibility Organizations (“PROs”)
The draft EPR Regulations allow producers to comply with their EPR obligations by joining a non-profit “product responsibility organization” which is responsible for the management and implementation of the EPR scheme on behalf of its members. It is anticipated that all producers will join such organizations (many of which already exist) because it would be extremely onerous for a single organization to meet all the requirements of the EPR regulations themselves.
Deadline for submissions
Comments on the draft notices must be submitted by 26 August 2020, (On 28 July 2020 the original comment period was extend by 30 days [GN. 817]) Submissions can be made to the following addresses:
By post to: The Director General: Department of Environment, Forestry and Fisheries
Attention: Mr Anben Pillay
Private Bag X447
By hand at: Environment House, 473 Steve Biko Street, Arcadia, Pretoria, 0082
By email: firstname.lastname@example.org