Originally published 14th September 2004
The European Union ("EU") has for some years been concerned over the level of waste produced within its borders and the small proportion that is recovered or recycled. Each year 1.3 billion tons of waste are produced of which 67% is incinerated or sent to landfill. On current estimates these figures will continue upwards. The EU is hoping to reverse the trend, and reduce the proportion of hazardous waste, by the introduction of two key Directives – one on Waste Electrical and Electronic Equipment ("WEEE")1, the other on the Restriction of the Use of Certain Hazardous Substances ("RoHS")2. With the DTI now consulting on their adoption into UK law, it is the last chance for producers and retailers of electronic and electrical goods to have their say and to assess the wide-ranging implications of the Directives before obligations start coming into effect early next year. Some of these implications and obligations are discussed below.
First, the definition of electronic and electrical equipment ("EEE") is broad comprising almost all goods running on mains or battery power up to certain voltage ratings3 and falling within one of 10 non-exhaustive categories of equipment4. This includes obvious articles such as PCs and less obvious ones such as sports and medical equipment and smoke detectors. The exclusions are limited - filament bulbs, household luminaries, large-scale stationary industrial tools, implanted and infected medical devices and equipment intended specifically for military purposes. Equipment that is part of another type of equipment not within the Directive’s scope is also intended to be excluded but the application of this exemption is uncertain. For example, would an electric thermostat for a gas heating system be covered or not and what of the heating system itself? If these are excluded from the WEEE Directive, are they also excluded from the RoHS Directive? The Commission has recently requested legal opinions on these issues and is waiting for the responses.
Secondly, the term "producers" is also widely defined including manufacturers and sellers of own-brand EEE, businesses importing/exporting EEE into Member States, and re-sellers selling under their own brand. The WEEE Directive requires producers to set up and, from 13th August 2005, fund systems for the collection, treatment and recovery of electronic waste from private households and waste of similar nature and quantity from businesses. Placing funding obligations on producers is intended to encourage more environmentally friendly design practices. However, the Directive allows costs to be passed on to consumers through increased prices (though collection from consumers is to be free of charge). Minimum recovery rate targets are to be reached by 13th August 2006 – for most categories of goods these are between 70% and 80% by weight. New targets will be set by the end of 2008 and will raise the levels.
Producers will also have to register and to report 2004 sales data (so that their market shares can be calculated) between January 2005 and 12th August 2005. From 13th August 2005, all EEE will have to be marked so as to clearly identify the producer, production date and carry a symbol of a crossed-out wheelie bin.
The WEEE and RoHS Directives were to have been implemented by all Member States by 13th August 2004 – giving a full year before the obligations on producers take effect. The UK, along with several other countries, has missed this deadline but the DTI released on 30th July 2004 the proposed implementing regulations and accompanying guidance for consultation5. The consultation closes on 29th October and the regulations are expected to come into force before the end of the year. The fact that the implementation of the 2 Directives into UK law will be late, does not affect the above obligation dates.
One point to note from the proposals is that, although the regulations are intended to implement a single UK model for compliance with the Directives, it is not EU-wide. This, plus the uncertainty over the scope of EEE covered, means that producers are likely to face a variety of different regimes and in respect of different ranges of products across the EU. Aware of this problem, the consultation papers include a short report commissioned by the DTI on existing measures and the current status of transposition of the WEEE Directive in other EU Member States.
Another is that the previous consultation showed a strong preference for the establishment of a national clearing house for WEEE collected from a network of designated collection facilities around the UK. The clearing house would coordinate the allocation of the waste to producers for treatment and/or recovery. How the clearing house will function, and its fairness, should therefore be a key concern for producers. Accordingly various mechanisms are suggested in a discussion paper produced as part of the consultation by the Strategic Electronic Waste Policy Forum – a joint industry/parliamentary group formed to develop fair means of meeting the WEEE Directive’s requirements. The consultation recognises that timing is tight and so expects industry to take a lead in taking the clearing house concept forwards.
For retailers of EEE, which includes any and every store selling such goods from corner shops upwards, the consultation papers highlight the choice they will have to make as to whether to offer in-store take-back schemes for WEEE from 13th August 2005 or join an approved retailer compliance scheme. Distance sellers will have to make an equivalent decision.
As treatment costs for electronic waste will be one of the main portions of compliance costs, the consultation encourages producers to consider the draft guidance on WEEE treatment and storage produced by the Environment Agency. The Environment Agency will be responsible for enforcing the regulations6 but will also offer guidance on the interpretation and scope of the Directive.
In conclusion, the consultation paper provides a considerable amount of information. Most of it is essential reading for producers and retailers whether they intend to respond to the consultation or not. It is a last chance to prepare for the coming new regime on electronic waste that should not be missed.
Footnotes
1 Directive 2002/96/EC as amended by Directive 2003/108/EC. 2 Directive 2002/95/EC. 3 1,000 V AC; 1,500 V DC - WEEE Directive, Article 3(a). 4 WEEE Directive, Annex IA (with a non-exhaustive list of example products in Annex IB). 5 There have been 2 prior rounds of consultation – the first (closing on 30th May 2003) was a broad brush consultation on how the 2 Directives should be implemented; the second (closing on 1st March 2004) concerned Government proposals put forward in the light of the first consultation. 6 For Scotland it will be the Scottish Environment Protection Agency and, for Northern Ireland, the Department of the Environment.
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