WEEE - Waste Electrical and Electronic Equipment - Regulations

Every year over 1 million tonnes of electrical and electronic equipment (EEE) waste is being disposed of in landfills across the UK, with only 18% of all waste being recycled. However, with the final phase of the Government’s plans to implement the WEEE Regulations nearly complete, this may all be a thing of the past.

As from 1 July 2007, all businesses affected by the Regulations must wise up to their new responsibilities and implement the correct procedures in accordance with the Regulations or be liable to a fine.

The aim of WEEE

WEEE aims to:

• Reduce EEE waste.
• Encourage re-use, recovery and recycling by setting targets for various categories of WEEE.
• Make Producers responsible for the products they manufacture, hire or import.
• All EEE to be marked with a ‘crossed out wheelie bin’ symbol.
• Establish and maintain a register of EEE Producers.
• Separately collected WEEE must be treated.
• Make Distributors responsible for taking back WEEE free of charge.

Who will be affected?

Producers - Any business that manufactures, imports or re-brands electrical or electronic products within the EU. This can include power tools, heating control instruments and lighting equipment.

Distributors - Any person who provides electrical or electronic equipment on a commercial basis to the party who is going to use it, e.g. wholesalers, retailers, distance sellers and producers making direct sales to consumers.

The Regulations differentiate between EEE sold for non-household (business, professional) and household (consumer as a member of the public) purposes. However, any business that is selling directly to household users may be deemed both a Producer and Distributor and, therefore, will need to fulfil dual obligations.

Businesses that sell, treat, store or dismantle WEEE will also be affected.

What types of products fall within the Regulations?

The Regulations contain an extensive list covering a wide range of electrical goods, for example:

• Electrical and electronic tools including power tools – e.g. drills, saws.
• Monitoring and control instruments – e.g. smoke detector, heating regulators.
• Lighting Equipment – e.g. fluorescent lamps.
• Large household appliances – e.g. air conditioning appliances, freezers, microwaves, electric radiators.
• Small household appliances – e.g. vacuum cleaners, clocks, watches, toasters.
• IT and telecommunications equipment – e.g. printers, copying equipment, laptop computers, telephones.
• Consumer equipment – e.g. television sets, video cameras.
• Toys, leisure and sports equipment – e.g. coin slot machines.
• Medical devices – e.g. for dialysis, cardiology, nuclear medicine.
• Automatic dispensers – e.g. for hot drinks, hot or cold bottles or cans.

Key dates for implementation

The final Regulations are expected in December 2006, with the main obligations placed on Producers and Distributors coming into effect on 1 April 2007 and full responsibility starting on 1 July 2007.

Producers’ obligations

The implementation of the WEEE directive has many side effects for Producers and their obligations are extensive. Below is short checklist of some of the key obligations:

• Fund the collection, recovery, recycling and treatment of their EEE waste or request that a Producer Compliance Scheme (PCS) carry out the obligation.
• All Producers must be a member of a PCS, the scheme will then register and report information to the Environment Agency and, if required, take on the paper registration, reporting and practical obligations required under the Regulations on behalf of the Producers.
• To register Producers must complete an application form, pay a fee and provide information relating to all EEE placed on the market during a 12 month specified period. The Environment Agency will be accepting applications for the PCS from 4 January 2007 and all Producers will be required to join fully by 15 March 2007.
• Each scheme will have its own separate percentage targets by weight for the recovery, re-use and recycling of different categories of WEEE.
• The obligations under the PCS are based on the market share of each of its members, the weight and categories of WEEE reported by the scheme.
• The relevant Environment Agency will provide the Operators of the PCS with information on the tonnage of WEEE and outline the relevant market share of each of the Producers that are members of a PCS. This will allow the Operator to negotiate financial contributions required from each member.
• Each scheme will have to negotiate with local authorities and other Designated Collection Facility (DCF) Operators to collect sufficient WEEE in order to meet their obligations.
• A PCS can purchase and sell evidence notes to ‘cash in’ on exceeding obligations or to ‘buy’ their way to compliance targets.
• There will be a code of practice covering the collection of WEEE from DCFs and PCSs collecting WEEE from waste disposal authorised sites will be obliged to implement the code as well.
• Mark all EEE placed on the market with a ‘crossed out wheelie bin’ symbol
• Provide information on their EEE to allow authorised treatment facilities to safely dismantle and recycle or reuse their products. Authorised treatment facilities will process the WEEE in line with legislation and provide evidence notes to Producers. These must then be submitted by the Producers to the Environment Agency to prove compliance.
• Any mismatches in amounts of WEEE not processed by the PCS will be resolved at the end of each year by a purposely set up Exchange System.
• For a transitional period of 4-6 years Producers that sell new products must display the costs of meeting their WEEE obligations, either in store or on the product.

Distributors’ obligations

Distributors will be required to facilitate the take-back of household WEEE from customers.

Here is a list of the main Distributor obligations:

• Either to provide the consumers in store with a take-back and collection on delivery, or join a Distributor Take-Back Scheme (DTS) to take-back household WEEE from consumers.
• Provide customers with the following information; the environmental impacts of EEE, reasons for separate collection of WEEE, the means of disposal of WEEE, the meaning of the WEEE markings. Distributors must retain the records detailing this information for six years.
• Distributors opting for the in-store take-back scheme will have the following obligations:
• Provide free of charge (to the consumer) environmentally sound treatment and recycling of WEEE.
• Consumers can return WEEE items free of charge on a ‘one-to-one’ basis; which means any similar product or one fulfilling a similar purpose.
• Arrange for the clearance of separately collected WEEE and retain records for six years.
• Distributors will be charged a fee for joining a DTS depending on the size of the retailer. For the larger electrical Retailers this will be based on market share of electrical and electronic equipment using their 2006 sales volumes. Smaller retailers will have a small fixed fee based upon their EEE turnover. If Distributors decide to join a DTS they have the following obligations:
• Provide consumers with information as to how they can dispose of their WEEE free of charge at the DCF.
• Obtain a waste management licence or have registered an exemption with the Environment Agency.
• Display signs to inform consumers how they may dispose of their WEEE free of charge.
• The DTS will assist its members in meeting their obligation by informing consumers of the location of convenient WEEE collection facilities.
• There is no obligation on a Distributor to take-back non household WEEE.

Business-to-Business (B2B) issues

Many businesses may be deemed non-household users of EEE if they possess it for business, professional or official purposes. For new WEEE placed on the market after 13 August 2005 the Producer is directly responsible for its collection and recycling.

EEE placed on the market before 15 August 2005 will be the responsibility of the business end-users, if they are discarding it without replacement, otherwise responsibility will rest with the Producer making a ‘like for like’ replacement.

If non-household users decide to retain their responsibility then the following obligations apply to any WEEE that is not collected by a PCS or Producer:

• To arrange and finance the consignment of WEEE to an authorised treatment facility, its subsequent treatment and environmentally sound disposal.
• To ensure the WEEE is separately collected and retain evidence that a properly licensed waste management company treated and disposed of it appropriately.
• They must comply with the waste “duty of care” regime, to ensure that WEEE is handled, recovered and disposed of responsibly. They must also appoint an appropriate company to dispose of WEEE and a record of Waste Transfer Notes should be kept for all WEEE received and transferred.

Failure to comply – what are the consequences?

Those affected by the Regulations must ensure that they fully implement and perform their duties under the Regulation, because failing to do so could lead to a breach of the Regulations.

Examples of offences under the Regulations include:

• Not marking products with the required information.
• Failing to join a compliance scheme.
• Failing to keep the necessary records and produce them for assessment.

If found guilty of an offence, Producers, Distributors and Operators can be liable to a fine of up to £5,000 per offence on summary conviction in the Magistrates Court or an unlimited fine imposed by the Crown Court.

Company Directors and Managers of companies can also be prosecuted, in addition to the company itself, if they consent to, or participate in, the offence, or if their neglect led to the commission of an offence by the company.

If the Environment Agency suspects an offence has been or will be committed, it can serve an enforcement notice specifying the ways in which the Regulations have been breached and the requirements for compliance.

What impact does this have on your business?

• It is important to ascertain if and how the Regulations will affect your company.
• Does your business fall within one of the following categories; Producer, Distributor or non-household user? If so, start planning a competent and workable regime, including any extra financial costs which may be incurred in order to met the requirements of the Regulations.
• Review any commercial agreements in order to assess the potential liability for B2B WEEE.
• Start to consider product redesigns in order to meet packaging requirements.
• Initiate close tracking of goods sold.
• Start retaining all of the required documents in order to prove compliance.

For further information please contact either ClarksLegal:

Verity Lim - vlim@clarkslegal.com - or Andrew Hall - ahall@clarkslegal.com - or visit www.clarkslegal.com.