Waste collectors rightly want more of a say in extended producer responsibility

According to the NVRD, the current system of producer responsibility gives producers of packaging waste, among others, too much influence over policy. They also exert a significant amount of control over the implementation of this policy. The NVRD is asking the government to take more control so that municipalities are no longer sidelined and to focus on targets higher up the R-ladder. This is one of the recommendations made by the NVRD following a legal study into producer responsibility conducted by Utrecht University (UU) on behalf of the NVRD. The NVRD shares these recommendations in a letter to State Secretary for I&W Vivianne Heijnen. The Utrecht University Study UU investigated the legal frameworks of producer responsibility, looking in particular at how rights and duties are divided between municipalities and their waste collectors on the one hand, and producers on the other. In doing so, they compared European regulations with Dutch regulations. In the Netherlands, the main provisions for EPR are set out in the Environmental Management Act, the Decree on Extended Producer Responsibility Rules and the EPR schemes dealing with a specific product category, such as the Packaging Management Decree. At European level, this is the Waste Framework Directive. This directive defines the minimum requirements for an EPR system and what Member States can determine at national level. This comparison showed that national and European regulations broadly correspond, but that the way the Dutch government implements EPR leads, among other things, to sub-optimal results in terms of circularity, a weak negotiating position for municipalities, and a lack of dialogue between different stakeholders, namely municipalities, collectors, civil society organisations and recyclers. This is despite the fact that ensuring regular dialogue between stakeholders is identified as part of the EPR obligation in Article 8 of the Waste Framework Directive. In addition to facilitating dialogue, UU argues that EPR schemes legally offer the possibility to steer towards a more circular economy. For this purpose, 'high-quality' targets can be included in areas such as reuse, repair and fibre-to-fibre recycling. However, they still see problems regarding the enforcement of targets within Dutch regulations. This is evident, among other things, from the lawsuit brought by Recycling Netwerk because producers failed to meet glass recycling targets. In this lawsuit, the Council of State ruled that the Waste Fund (Afvalfonds), which failed for years in a row to approach the mandatory target of 90% glass recycling, does not have the power to meet this target because the Waste Fund is dependent on third parties to achieve this standard and cannot enforce this cooperation. "An order subject to periodic penalty payments cannot be imposed when it is plausible that the offender does not have the power to comply with that order," the Council of State said. "(...) an order due to the Waste Fund's dependence on third parties cannot extend further than to taking or investigating concrete measures to at least approach the recycling standard more closely." This ruling effectively means that the policy drafted for glass to meet the 90% recycling target is unenforceable. NVRD Recommendations Based on UU's research, the NVRD makes several recommendations to State Secretary for I&W Vivianne Heijnen. The aim is to increase the role of municipalities and waste collectors and give them more of a say in the policy process. In the letter, the NVRD advises the national government to: Reconsider the various possible policy instruments and look at how to achieve a circular raw materials chain, since it has been shown that EPR alone is not sufficient; involve municipalities in draft decisions in the same way as producers are currently involved; introduce modulated fees in line with the r-ladder; anchor the interests of municipal and public waste collection in EPR systems throughout their duration, so as to be treated as an equal chain partner; introduce a system in which the central government has more control over agreements on compensation and ensure that the central government can also act as an arbitrator when different stakeholders cannot work it out themselves; invest more in knowledge and data collection within the government, so that dependence on producers decreases and better enforcement is achieved; ensure that who has what tasks, roles and responsibilities within an EPR system is better elaborated, with the central government taking on a more guiding role;

According to the NVRD, the current system of producer responsibility gives producers of packaging waste, among others, too much influence over policy. They also exert a significant amount of control over the implementation of this policy. The NVRD is asking the government to take more control so that municipalities are no longer sidelined and to focus on targets higher up the R-ladder.

This is one of the recommendations made by the NVRD following a legal study into producer responsibility conducted by Utrecht University (UU) on behalf of the NVRD. The NVRD shares these recommendations in a letter to State Secretary for I&W Vivianne Heijnen.

The Utrecht University study

The UU investigated the legal frameworks of producer responsibility, looking in particular at how rights and duties are divided between municipalities and their waste collectors on the one hand, and producers on the other. In doing so, they compared European regulations with Dutch regulations. In the Netherlands, the main provisions for EPR are set out in the Environmental Management Act, the Decree on Extended Producer Responsibility Rules and the EPR schemes dealing with a specific product category, such as the Packaging Management Decree. At European level, this is the Waste Framework Directive. This directive defines the minimum requirements for an EPR system and what Member States can determine at national level.

This comparison showed that national and European regulations broadly correspond, but that the way the Dutch government implements EPR leads, among other things, to sub-optimal results in terms of circularity, a weak negotiating position for municipalities, and a lack of dialogue between different stakeholders, namely municipalities, collectors, civil society organisations and recyclers. This is despite the fact that ensuring regular dialogue between stakeholders is identified as part of the EPR obligation in Article 8 of the Waste Framework Directive.

In addition to facilitating dialogue, UU argues that EPR schemes legally offer the possibility to steer towards a more circular economy. For this purpose, 'high-quality' targets can be included in areas such as reuse, repair and fibre-to-fibre recycling. However, they still see problems regarding the enforcement of targets within Dutch regulations. This is evident, among other things, from the lawsuit brought by Recycling Netwerk because producers failed to meet glass recycling targets. In this lawsuit, the Council of State ruled that the Waste Fund (Afvalfonds), which failed for years in a row to approach the mandatory target of 90% glass recycling, does not have the power to meet this target because the Waste Fund is dependent on third parties to achieve this standard and cannot enforce this cooperation. "An order subject to periodic penalty payments cannot be imposed when it is plausible that the offender does not have the power to comply with that order," the Council of State said. "(...) an order due to the Waste Fund's dependence on third parties cannot extend further than to taking or investigating concrete measures to at least approach the recycling standard more closely." This ruling effectively means that the policy drafted for glass to meet the 90% recycling target is unenforceable.

NVRD Recommendations

Based on UU's research, the NVRD makes several recommendations to State Secretary for I&W Vivianne Heijnen. The aim is to increase the role of municipalities and waste collectors and give them more of a say in the policy process. In the letter, the NVRD advises the national government to:

Reconsider the various possible policy instruments and look at how to achieve a circular raw materials chain, since it has been shown that EPR alone is not sufficient;

involve municipalities in draft decisions in the same way as producers are currently involved;

introduce modulated fees in line with the r-ladder;

anchor the interests of municipal and public waste collection in EPR systems throughout their duration, so as to be treated as an equal chain partner;

introduce a system in which the central government has more control over agreements on compensation and ensure that the central government can also act as an arbitrator when different stakeholders cannot work it out themselves;

invest more in knowledge and data collection within the government, so that dependence on producers decreases and better enforcement is achieved;

ensure that who has what tasks, roles and responsibilities within an EPR system is better elaborated, with the central government taking on a more guiding role;

investigate options to prevent producers from shifting responsibility to third parties when recycling targets are not met.

Governance of EPR systems

There are many areas of overlap between the NVRD's conclusions and the recommendations previously made by Recycling Netwerk Benelux (RNB) to the State Secretary to accelerate the transition to a circular economy. We also observe that for stakeholders, the opportunities for input are often limited to the phase after the design of the draft policy has already been completed. Usually, the targets have already been determined in consultation with producers, and other stakeholders only have the opportunity to provide input through a consultation. As a result, changes are only possible to a limited extent. We believe that this system does not benefit environmental performance, because municipalities, collectors and environmental organisations in particular often have a good understanding of what citizens need, where the bottlenecks lie, and what is required to promote circularity, environmental benefits and to design EPR systems more effectively.

RNB has started a study into the governance of EPR systems to map out how more ambitious and effective environmental policy is being hindered. We observe that in many cases producer organisations act as advocates for the producers they represent, which raises questions about their central position in policy-making. Advocating interests is not the role of producer organisations. The interests of producers are already represented by their trade associations. Policy formulation belongs to the government, and they should steer towards maximum environmental benefits. Our study on the governance of EPR systems will map out how governments and producer organisations relate to each other and which changes in policy and the policy-making process would contribute to better environmental policy. This is a requirement for the successful sustainability of product systems and thus achieving maximum environmental benefits.