Conceptual aspects of Extended Producer Responsibility

The current system of hazardous and production waste management in the Republic of Moldova is not integrated and based on activities compliant with "waste hierarchy" and on a mechanism of "Extended producer responsibility" for waste management, similar to the community one, as a result of which this fact does not ensure the minimization of potential threats to the environment and the population.

Starting from the special law no. 209/2016 on waste, some general regulations that configure the institution are of interest "Extended producer responsibility" as a distinct one within the mechanism for managing and preventing the generation of waste both at the national and local levels of the Republic of Moldova.

Mainly, the subjects subject to the regime are specified extended producer responsibility, which concern natural or legal persons (the product manufacturer) who, at a professional level, design, produce, process, treat, sell and/or import the following products:

• batteries and accumulators;
• electrical and electronic equipment;
• vehicles;
• oils;
• packaging,

The extended responsibility of the manufacturer represents the totality of obligations directly imposed on the subjects mentioned above, either individually or collectively, for the recovery and valorization or recycling of end-of-life products. These measures must encourage the development, production and marketing of products with multiple uses, which are sustainable from a technical point of view and which can, after becoming waste, be subject to safe recovery and disposal that does not pollute the environment.

The activities for the application of extended producer responsibility aim at:

• measures to accept returned products and waste that remains after the use of those products,
• subsequent waste management and financial assurance by producers for these activities.

These activities are to ensure the hierarchy of waste imposed by Law no. 209/2016, in terms of preventing the generation and management of waste, by consecutively and cumulatively complying with the following order:

a) prevention;

b) preparation for reuse;

c) recycling;

d) other capitalization operations, including energy capitalization;

e) elimination.

Product manufacturers subject to the extended producer responsibility regulations are obliged:

a) to ensure, according to the requirements approved by the Government, the labeling and marking of the products and the use of symbols indicating that the product is subject to a separate collection, its removal being prohibited;

b) to ensure the organization and operation of individual or collective systems for managing the respective waste streams;

c) to register in the Automated Information System "Waste management" (SIA MD) approved by the Government, by submitting a list of necessary documents to the registrar;

d) to ensure the record, starting from 23.12.2017, of the products being made available on the market for a period of 5 years, reporting annually to the Environment Agency the amount of products made available on the market in the case of honoring the extended responsibility of the producer individually . Upon presentation of proof of membership of a collective scheme, this responsibility will be honored by a collective scheme;

e) to present proof of an individual system or to certify the membership of a collective system of collection, treatment, recovery or disposal of products that have become waste;

f) to carry out educational and information/awareness programs regarding the collection and treatment of products that have become waste;

g) to ensure, individually or through collective systems, the achievement of collection and recycling targets for products that have become waste, established by the Government.

Distinctly, product distributors subject to the extended producer responsibility regulations are obliged:

a) to register in the List of producers of products subject to the extended producer responsibility regulations, held by the Environmental Agency;

b) to ensure, starting with 23.12.2017, the record of placing products on the market for a period of 5 previous years and to report annually to the Environment Agency the quantity of products made available on the market.

In order to evaluate the performance achieved, starting from 23.12.2017, in the collection, treatment, recovery or disposal of products that have become waste, the Environment Agency maintains and updates the list of producers of products subject to extended producer responsibility regulations, which is a component of SIA MD. Those who honor their way individual the obligations described above present the Environmental Agency with proof of the existence of individual systems for free collection and separate collection, treatment, recovery or disposal of products that have become waste. If producers of products subject to extended producer responsibility regulations honor their obligations by joining a system collective, individual responsibility will be subsidiary to the responsibility of the collective system.

It is noteworthy that the collective systems that act on behalf of producers are authorized by the Environment Agency, to the extent that the applicant will present the constitutive act of the legal entity and the operating plan for the period of validity of the authorization, which will contain at least the following:

a) the quantities of products to be managed, by types and sources of origin;

b) description of the method of implementation of the obligations in order to reach the established targets;

c) presentation of the coverage of the entire territory of the Republic of Moldova;

d) the financial plan for implementing the producer's extended responsibility regime.

It is specific for the collective systems that act on behalf of the producers of electrical and electronic equipment and of vehicles, that they are obliged to set up a commission, based on the financial guarantees presented by the producers, to cover the sums necessary to finance the operations of collection, treatment, recovery and non-polluting disposal of electrical and electronic equipment waste generated in private households and of end-of-life vehicles, derived from the products introduced on the national market by producers who joined the collective system and who ceased their activity.

The collective systems bear the costs of collection and separation of the waste collected through the collection points. The costs are established by mutual agreement with the local public authorities of the administrative units, but they must not exceed the unit fee established for the sanitation service for the population.

Thus, starting with January 1, 2019, only producers registered in the List of producers of products subject to the extended producer responsibility regulations can introduce electrical and electronic equipment on the market of the Republic of Moldova.

At the same time, to the extent that the Government has far exceeded the terms set by Law no. 209/2016 on waste, in order to develop and approve all the special normative mechanisms for the implementation of the institution of the extended responsibility of the producer of products that fall under it, on 14.01. 2019, the Ministry of Agriculture, Regional Development and Environment approved Othe order regarding the Checklist in the fields of competence of the Environmental Protection Inspectorate, among which is the management of waste and chemical substances.

Accordingly, the environmental control body will check whether Manufacturers of products subject to extended liability regulations have ensured:

- registration in the "Waste Management" automated information system (SIA MD);

- the record and the annual reporting of the quantity of products made available on the market;

- presentation of proof of an individual system or member of a collective system of collection, treatment, recovery or disposal of products that have become waste;

- conducting information/awareness programs regarding the collection and treatment of products that have become waste;

- achieving collection and recycling targets for products that have become waste.

 In the context of the conceptual aspects addressed, in order to achieve the objectives indicated in Law no. 209/2016, it is necessary to create at national level an integrated System of Extended Producer Responsibility (REP) with the cumulative meeting of the following conditions:

1. Sooner completion by the Ministry of Agriculture, Regional Development and Environment of the processes of elaboration, approval, expertise, public consultations of the draft regulations regarding the management of waste batteries and accumulators, of used oils, of end-of-life vehicles, with their final approval by to the Government of the Republic of Moldova, in order to identify not only the legal basis but also the operational mechanism of the Extended Producer Responsibility institution in the spirit of the detailed provisions of the Community legislation.

2. Development and approval of a National Program regarding the implementation of the Extended Manufacturer's Responsibility, which will contain in particular the following information:

a) the type, quantity and source of waste generated within the territory, the waste that can be transported to or from the national territory, as well as an evaluation of the evolution of waste flows;

b) existing waste collection schemes (individual or collective) and the main recovery and disposal facilities, including any special arrangements for WEEE, waste batteries and accumulators, used oils, end-of-life vehicles and packaging;

c) registration of producers in the Automated Information System "Waste Management" (SIA MD), and respectively, record keeping, transmission of data and information about waste and their management in SIA MD. The fulfillment of these powers will be entrusted to an employee of the manufacturer who will have the necessary certifications in the field of waste management;

d) assessment of the need for new collection schemes, closure of existing waste facilities, additional infrastructure for waste facilities, as the case may be, related investments;

e) information about the criteria for identifying sites and information about the future disposal or operation capacity of major recovery facilities;

f) general waste management policies, including planned waste management technologies and methods;

g) organizational aspects related to waste management, including the distribution of responsibilities between public and private actors dealing with waste management;

h) an analysis of the usefulness and adequacy of the use of economic and other instruments to solve various problems related to waste, taking into account the need to maintain a good functioning of the internal market;

i) carrying out awareness and information campaigns addressed to the general public or target groups of the public;

j) sites historically contaminated by waste disposal operations and their rehabilitation measures;

k) the financial-fiscal instruments to cover the costs of collection, treatment and non-polluting waste disposal of products that fall under the extended responsibility of the producer.

3. Revision of Law no. 1540/1998 regarding environmental pollution regarding the development of a budgetary-fiscal mechanism for the calculation, collection and full recovery of the costs borne by producers in order to comply with the "polluter pays" principle and the principle of Extended Producer Responsibility.

Emerging from the practice of the EU states, the financial means accumulated from the collection of environmental taxes are transferred to private collective organizations or organizations managed by the state for the financing of projects in the field and are mostly intended for the development and exploitation of waste collection systems, as part of an Extended Producer Responsibility (REP) system.

Currently, in the Republic of Moldova, the tax for environmental pollution provided for in Law no. 1540/1998 on environmental pollution continues to be levied, without a mechanism regarding the conditions for placing batteries and accumulators, electrical and electronic equipment on the domestic market, vehicles, oils and packaging, in particular, regarding the direct or indirect provision of legal entities with the necessary financial coverage for waste management of these products in the context of extended producer responsibility.

In the created conditions, there is a fundamental need in the development and approval of a mechanism for refunding the tax for environmental pollution, corresponding to the percentage of managed waste, for companies that implement the principle of REP, as well as ensuring that the taxes collected for environmental pollution will be directed to the Fund National Ecological, which will later be used for these purposes.

Comparatively, in Romania, for example, WEEE management fee (green tax, green stamp or Eco tax) – represents the contribution of consumers to cover the costs of collection, treatment and non-polluting disposal of waste electrical and electronic equipment (WEEE).

The amount of the tax ensures the financing of the entire collection and recycling process, as well as the fulfillment of the environmental objectives provided by European and national legislation. 

This is included in the purchase price of the electronic or household appliance and is visible (highlighted separately on the invoice), being assumed by all manufacturers and distributors of electrical and electronic equipment. 

The green stamp applies to every new electrical and electronic equipment purchased and has a fixed price level per product category, set independently of brand, weight, volume or selling price and dependent on the recycling capacity of the equipment in question.

4. The completion of the WEEE Regulation approved by GD no. 212/2018, as well as the introduction into the draft regulations regarding the waste of batteries and accumulators, end-of-life vehicles, used oils and packaging, with regulations on the collective systems of taking over the extended responsibility of producers, in especially, the organizational-legal form of the competent legal entities, the purposes of the activity (commercial or non-commercial), the tax regime, etc.

Comparatively, in Romania, for example, taking over the legal responsibilities of manufacturers and importers of electrical and electronic equipment in order to facilitate the collection, treatment, recycling and non-polluting disposal of waste electrical and electronic equipment (WEEE), through a system collectively, it is ensured through collective, non-governmental and non-profit organizations. All proceeds are invested in the establishment and development of the WEEE collection system, collection, processing, recycling and neutralization, as well as environmental education campaigns. The main objectives of such organizations are to fulfill the legal obligations of its members regarding the responsible management of waste electrical and electronic equipment (WEEE), respecting the highest European quality standards, as well as the elimination of hazardous substances for the environment and the reuse of secondary raw materials in production processes with the ultimate aim of ensuring the conservation, protection and improvement of the quality of the environment, the protection of human health and the prudent use of natural resources.

5. To the extent that, according to art. 8 letter c) of Law no. 209/2016 on waste, the Government of the Republic of Moldova has the competence to approve normative acts, including, regarding the methodology for calculating consumption tariffs for waste management services, in its elaboration, a separate compartment should be dedicated regarding the waste management of the products that fall under the Extended Responsibility of the Producer.

Author: Igor Şeremet, Lawyer, university lecturer, at the Department of International Lawand European of the USM Faculty of Law, Doctor in Law