THE REFORM OF EXTENDED PRODUCER RESPONSIBILITY IN POLAND

KIELTYKA GLADKOWSKI KG Legal attended a conference on Extended Producer Responsibility (EPR), including the deposit and deposit system, as well as the implementation of the Single Use Plastics (SUP) Directive.

EXTENDED PRODUCER RESPONSIBILITY (EPR)

EPR is a producer-focused mechanism that aims to reduce waste, particularly plastic waste, by increasing recycling and decreasing dependency on new raw materials. EPR moves the cost of managing post-use products partially or fully from local governments to the producing industry. 

A key assumption of EPR is to consider the whole “life cycle” of products, i.e. from design, production and use to proper waste management. “Life cycle” includes designers, manufacturers, distributors (including product marketing), vendors, and customers/consumers. The EPR concept also assumes that appropriate economic incentives can turn waste into a valuable raw material, which should be thought about from the design stage.

With increased concerns about the environment and public health, the appropriate treatment of end-of-life products has been a popular item on regulators’ agendas, particularly in the context of electrical and electronics waste (e-waste). Many governments, including 27 Member States of the European Union (WEEE Directive 2002/96/EC), 25 States in the US (ETC 2011), and Japan (Tojo 2004), have already instituted or are planning to implement some form of legislation to deal with end-of-life electrical and electronic equipment. Product take-back, which is based on the concept of Extended Producer Responsibility (EPR), is a popular form of such legislation. Under EPR-based take-back laws, producers are physically or financially responsible for the collection of end-of-life electronics (typically from designated collection points such as municipal junkyards) and their recovery (e.g., recycling materials or reusing components), so as to divert hazardous materials away from landfills.

The increase of financing of the recovery and recycling of waste by the producers of packaged products announces the standardization of national sorting and recycling processes, in accordance with European legislation. The design of the new EPR system also offers hope for a qualitative environmental change. Today, societies are faced with tons of waste, much of which ends up in landfills and pollutes ecosystems instead of being recycled. The idea behind the directives currently being introduced into Polish legislation is to care for the natural environment.

Thanks to EPR, producers will be forced to see the value in the material they use for production, they will be forced to treat it much more carefully, so that it does not end up in the open air as rubbish, after a short life in the form of a product or packaging.

LEGAL ISSUES   

The commencement of work on the Polish draft Act on amending the Act on packaging and packaging waste management and certain other acts resulted from the need to transpose into Polish law Directive (EU) 2018/851 of the European Parliament and of the Council of 30 May 2018 amending Directive 2008/98/EC on waste as regards Articles 8 and 8a, which relate to extended producer responsibility (EPR). In addition, the bill transposes Articles 6 and 9 from Directive (EU) 2019/904 of the European Parliament and of the Council on the reduction of the environmental impact of certain plastic products. The deadline for transposing the provisions of Directive 2018/851 was July 5th, 2020, however, the deadline to bring Extended Producer Responsibility systems into compliance with the requirements of the Directive is 5 January, 2023. The deadline for implementing Directive 2019/904 was July 3rd, 2021.

According to the proposed legislation, waste prevention actions shall be taken at least to:

• promote and support sustainable production and consumption models;
• promote the design, production and use of the goods, which are resource-efficient and durable (without artificial shortening of the product’s life cycle);
• in the case of products containing materials that are critical resources, prevent these materials from becoming a waste;
• promote the re-use of products and development of  the systems which support the repair and the re-use of products (in particular with regard to electrical and electronic equipment, textiles, furniture, packaging and construction materials and products);
• in addition, producers are also obliged to apply self-control mechanisms, in particular audits, for the financial management of environmental obligations,  collecting data, reporting on products placed on the market, collecting and processing waste from their products.

Some of the regulations came into force on 1 January, 2021. The rest of the regulation was to enter into force finally on 1 January 2022.

MAIN ASSUMPTIONS OF THE AMENDMENT OF THE POLISH ACT

One of the crucial assumptions of the new obligations is the obligation to introduce an authorized representative, which results from the provision of art. 8a sec. 5 of Directive 2008/98 / EC. Additionally, here has been added a new definition of packaging intended for farms, which is related to the division of the packaging stream into the so-called consumer and others, i.e. from trade, distribution or industry. The above breakdown also means treating these flows separately in the context of the performance of statutory obligations (recycling, recycling accounting, possible product fee, reporting). There has been added a producer definition and an authorized representative. The producer will be the foreign entity, whose packaged products are sold in any way on the territory of the country. The manufacturer will be able to appoint an authorized representative in a country that will fulfill the statutory obligations on its behalf. There has been added a definition of biodegradable plastic. Reference in the definition to the general concept of European standards concerning packaging results from the fact that these standards are still being developed (e.g. concerning composting plastic bags at home) and now available standard (PN: EN 13432) concerns the suitability for recovery by composting and biodegradation of all types of packaging in an industrial setting, not only those made of plastics. In art. 14a, the percentage of plastics was determined as well as recycled plastics that will have to be achieved by those introducing products in packages that are single-use plastic bottles for beverages with a capacity of up to three liters, including their caps and lids made of plastic. The level of content for 2025 will only apply to PET bottles, while the level of content for 2030 will already apply to bottles of any kind of plastics, including PET. The method of calculating the achieved result was also specified level and its confirmation by having the appropriate documents and an authorization to issue a regulation was introduced, which will specify the annual levels by the end of 2029. There was added paragraph 1a and 1b, which oblige those who introduce products in packages to put on the packages a marking indicating the way of collection of waste. In addition, the marking will have to be adapted to visually impaired and blind people. As part of the new extended accountability system the manufacturer is expected to have statutory obligations, including recycling obligations implemented through the producer responsibility organization or on its own.

CONSULTATIONS

The draft assumes the adoption of a product fee of PLN 0.50 for each kilogram of packaging introduced to the market. It is estimated that in 2023 the budget will receive PLN 1.5 billion, which will go to voivodeship marshals. It will be credited to the National Fund for Environmental Protection and Water Management.

The time frame for the required infrastructure investments is very short, only 8-13 years. The Association of Packaging and Packaging Products Industry Employers EKO-PAK argues that it forces Poland to take actions that would be impossible to carry out without the active participation of the private sector. It proposed that private sector organisations should coordinate the collection system for the part of the waste the EU places particular emphasis on recycling (i.e. plastics, multi-material packaging, paper and cardboard, metals and glass). The implementation of Extended Producer Responsibility by the private sector has many advantages over a system where local government units are the coordinator. The most important of these is to guarantee the stability of the system and the sustainability of investments. The infrastructure necessary for waste management will be financed mostly with EU funds, which, however, require own contribution and sufficiently long operation of the established plants. These in turn depend on a stable supply of waste.

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During the consultation, the industry shared its initial thoughts on the ROP system concept presented. Participants identified the strengths of the proposal and those requiring further discussion.

One of the key elements of the EPR system is to ensure producers’ participation in co-financing the management of packaging waste contained in municipal waste collected from inhabitants within municipal systems. Producers declared the willingness to support communal systems but indicated the necessity to ensure the effectiveness of communal systems of municipal waste management co-financed with the funds that would come from the fees paid by producers of packaged products.

Producers and recovery organisations pointed to the need for a more in-depth analysis of the responsibility of entities in the new system and the manner of calculating costs to be borne under the EPR by entities introducing products.

Recyclers appealed for the quickest possible introduction of solutions that would provide waste processors with financial support from producers, which in the opinion of recyclers and many experts is currently insufficient.

Sources:

1. https://archiwum.bip.kprm.gov.pl/kpr/form/r4457566844123,Projekt-ustawy-o-zmianie-ustawy-o-gospodarce-opakowaniami-i-odpadami-opakowaniow.html
2. https://raport.togetair.eu/earth/raw-materials-and-circular-economy/the-reform-of-extended-producer-responsibility-which-will-benefit-poland-the-most
3. https://www.teraz-srodowisko.pl/slownik-ochrona-srodowiska/definicja/rop.html