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THE WASTE ELECTRICAL AND ELECTRONIC

EQUIPMENT REGULATIONS 2006

SUMMARY

John L.D. Kerr

DISCLAIMER

This paper provides a summary of the Waste Electrical and Electronic Equipment Regulations 2006. It represents the author’s opinion of the salient points and it should be emphasised that it is a summary which does not purport to be a detailed account. As such, it cannot begin to address all possibilities in all circumstances and the reader is advised to consult the actual Regulations or the author on specific points. The information given is accurate up to January 2010.

1. INTRODUCTION

On 12 December 2006, the Waste Electrical and Electronic Equipment Regulations (‘the Regulations’ - S.I. 2006/3289) were laid before parliament. The majority of their provisions came into force on 2 January 2007, but the marking requirements, discussed below, and information for treatment facilities on new electrical and electronic equipment (‘EEE’) came into force on 1 April 2007. Other provisions, such as distributor obligations for waste EEE (‘WEEE’) and final user obligations, also discussed below, came into force on 1 July 2007.The Regulations have since been amended by S.I. 2007/3454 and S.I. 2009/2957 (which was itself amended by S.I. 2009/3216). These amendments are taken into account in this summary.

Two weeks before the deadline for producers to join a compliance scheme, the DTI (as was, now DBERR) published its long-awaited Guidance.  To obtain a copy of the latest version, please click here.

The Regulations transpose Directive 2002/96/EC on WEEE (‘the Directive’). As an environmental Directive, it is up to the devolved administrations to decide on how to implement it. However, the Regulations are mainly UK-wide, although regulations 4 (amendments to the Environment Act 1995), 45 (charges for proposed compliance schemes) and 51 (charges for authorised treatment facilities and exporters) do not apply in Northern Ireland. Charges in the Province are determined by the Waste Electrical and Electronic Equipment (Charges) Regulations (Northern Ireland) 2006 (S.S.R. 2006/509).

The Directive is an ‘extended producer responsibility’ Directive and the implementing Regulations follow this principle whereby ‘producers’ of electrical and electronic equipment will have responsibility for the environmental impact of their products when they become waste. By this means, the broad objectives of the Directive, which are to address the environmental impact of WEEE and to encourage its separate collection and subsequent re-use, treatment, recovery and environmentally sound disposal, will be met.

The Regulations are enforced by the ‘appropriate authority’ which is the Environment Agency in England and Wales, the Scottish Environment Protection Agency (‘SEPA’) in Scotland and the Department of the Environment in Northern Ireland.

2. DEFINITIONS AND EXEMPTIONS

The Regulations apply to electrical and electronic equipment, which is defined as:

equipment which is dependent on electric currents or electromagnetic fields in order to work properly and equipment for the generation, transfer and measurement of such currents and fields falling under the categories set out in Schedule 1 [to the Regulations] and designed for use with a voltage rating not exceeding 1,000 volts for alternating current and 1,500 volts for direct current.

The categories in Schedule 1 are:

1. Large household appliances

2. Small household appliances

3. IT and telecommunications equipment

4. Consumer equipment

5. Lighting equipment

6. Electrical and electronic tools (with the exception of large-scale stationary industrial tools)

7. Toys, leisure and sports equipment

8. Medical devices (with the exception of all implanted and infected products)

9. Monitoring and control instruments

10. Automatic dispensers

Schedule 2 to the Regulations includes a non-exhaustive list of products that would fall under each category, but many grey areas remain.

Note that there is a slight difference between ‘categories of EEE’ under the Directive and the definition of ‘categories of EEE’ in the Regulations. In the former case, categories of EEE are the 10 categories listed above; under the Regulations, however, categories of EEE are defined as:

(i) the categories of EEE listed in Schedule 1 (excluding display equipment, cooling appliances containing refrigerants and gas discharge lamps),

(ii) display equipment,

(iii) cooling appliances containing refrigerants, and

(iv) gas discharge lamps

These are the categories that are used to calculate a producer’s and scheme’s market share of household WEEE and for reporting and record keeping purposes.

Certain EEE is exempt from the scope of the Regulations, in particular:

• equipment not dependent on electricity to work properly in its basic (primary) function;
• equipment that is part of another type of equipment which is outside the scope of the Regulations (e.g. an aircraft or car);
• EEE designed specifically to protect the UK national security or for a military purpose;
• filament light bulbs;
• household luminaires for fluorescent lamps;
• large-scale stationary industrial tools;
• implanted medical equipment and infected medical equipment.

In the UK, there is also an exemption for a ‘fixed installation', although this is not mentioned in the Directive nor the Regulations. Rather, it stems from an FAQ document issued by the European Commission, and carried over into the DBERR Guidance, but only the UK and Commission agree with it. It is likely, therefore, that this exemption will be withdrawn at some point. For the moment, however, fixed installations are exempt.

The meaning of ‘fixed installation' is complex but, briefly, it stems from the exemption for equipment that is part of another type of equipment that is not itself subject to the Regulations.

So, in a nutshell, if it needs a battery or a plug, fits into one of the 10 categories above and is not exempt, it’s EEE.

The Regulations affect two broad categories of business - producers and distributors - and apply to two different classes of WEEE, depending upon the intended end-user of the original equipment before it becomes waste - WEEE from Private Households (WPH or 'B2C') and Non-Household WEEE (NHW or 'B2B'). Taking these in turn:

The ‘producer’ is defined as:

any person who, irrespective of the selling technique used, including by means of distance communication...

(a) manufactures and sells electrical and electronic equipment under his own brand;

(b) resells under his own brand equipment produced by other suppliers, a reseller not being regarded as the ‘producer’ if the brand of the producer appears on the equipment, as provided for in sub-paragraph (a); or

(c) imports or exports electrical and electronic equipment on a professional basis into a Member State;

In short, if you manufacture EEE and put your brand on it, or brand EEE manufactured by someone else, or import EEE into the UK, you are a producer.

The ‘distributor’ is defined as:

any person who provides electrical or electronic equipment on a commercial basis to the party who is going to use it

regardless of whether that person is providing goods to a consumer (i.e. an individual) or an end-user (i.e. a business - but see ‘Obligations’ below).

Note that a producer who also supplies EEE direct to the person who is going to use it, for example, through staff sales or at trade shows, will also be a distributor.

Regarding the classes of WEEE, WPH is defined as:

WEEE which comes from private households and from commercial, industrial, institutional and other sources which, because of its nature and quantity, is similar to that from private households.

NHW, or business-to-business (B2B) WEEE as it has become commonly known, is not defined in the Regulations, but it is all WEEE other than WPH.

There is a major problem with these classes because the two overlap, yet the system introduced, discussed below, is aimed at WEEE that arises in private households, which is not the same as WPH, as defined.

The Regulations apply during a ‘compliance period’ which is the calendar year.

3. OBLIGATIONS

3.1 PRODUCERS

Producers have the following obligations:

1. Finance the cost of collection, treatment, recovery and financially sound disposal of WPH deposited at Designated Collection Facilities (‘DCFs’ - see ‘Household WEEE’ below), or returned to producer compliance schemes (‘PCSs’) by distributors or others, during a compliance period;

2. Finance the cost of collection, treatment, recovery and environmentally sound disposal of NHW arising during a compliance period from EEE put on the UK market on or after 13 August 2005, and for EEE put on the market before that date where it is replacing EEE that is of an equivalent type or fulfilling the same function (‘historic WEEE’);

3. Join a producer compliance scheme (PCS);

4. Provide information to the scheme (e.g. on the amount of EEE put on the market, in tonnes, by category, plus display equipment (i.e. computer screens in category 3 and television sets in category 4), cooling appliances containing refrigerants and gas discharge lamps, further split into EEE that was intended for use in private households and EEE than was intended for use other than in private households);

5. Keep records of the information in (4) for four years;

6. Disclose his EEE producer registration number ('EPRN' - issued by the appropriate authority on registration) to distributors to whom he supplies or intends to supply EEE;

7. Mark EEE with:

• the Wheeled Bin symbol;
• a date mark; and
• the producer’s identity mark (e.g. logo); and

8. Provide information on re-use and environmentally sound treatment of new types of EEE within one year of the EEE being put on the market.

For B2C producers, the information is to be provided quarterly but, for B2B producers, it is to be provided annually. In both cases, the information must be ‘as accurate as reasonably possible’.

Producers who are both B2B and B2c can join a different scheme for each, but it is hard to imagine why any would want to.

A producer who is a member of an approved compliance scheme is exempt from the financing obligations (1 and 2 above) as these will be carried out by the scheme on behalf of its members. However, where a producer is a member of a compliance scheme which has its approval withdrawn, he has 28 days in which to join a new scheme or apply to join a new scheme. In the interim period, the producer is responsible for financing the cost of collection, treatment, recovery and environmentally sound disposal of WPH and NHW. In the case of WPH, the appropriate authority will determine the amount of WEEE for which the producer is responsible. In such circumstances, a producer will have to provide a ‘Declaration of Compliance’ to the appropriate authority by 1 June in the year following the compliance period.

A producer who, after 1 July 2007, put EEE on the market in any Member State other than the UK by means of distance communication (e.g. mail order, telephone or internet sales) must comply with article 8 of the Directive for that EEE. Article 8 is concerned with financing the cost of collection, treatment, recovery and environmentally sound disposal of WPH. Such a producer must also provide the appropriate authority with information that demonstrates that he has complied with this obligation and keep records for four years of the amount of EEE he put on the market in each Member State, along with details of compliance with article 8(4) of the Directive. Article 8(4) states: ‘Member States shall ensure that producers supplying EEE by means of distance communication also comply with the requirements set out [in the rest of article 8] for the equipment supplied in the Member State where the purchaser of that equipment resides’.

What this appears to mean is that producers who supply EEE to consumers in other Member States by distance communication must demonstrate to the appropriate authority in the UK how they will meet the obligation to finance the cost of collection, treatment, recovery and environmentally sound disposal of that EEE when it becomes waste. Presumably, each Member State will have systems in place to deal with this, for example, through some form of charging scheme for non-domestic producers. However, the most likely means by which producers will demonstrate compliance is through joining a compliance scheme, or its equivalent, in each Member State in which is supplies consumers with EEE.

3.2 DISTRIBUTORS

Distributors of WPH have the following obligations:

1. Provide free takeback on like-for-like sales;

2. Provide information to consumers on:

• the requirement on each Member State under article 2 of the Directive to minimise the disposal of WEEE as unsorted municipal waste and to achieve a high level of collection of WEEE for treatment, recovery and environmentally sound disposal;
• the collection and take back systems available;
• the role of consumers in contributing to the re-use, recycling and other forms of recovery of WEEE;
• the potential health and environmental effects of hazardous substances in EEE;
• the meaning of the wheeled bin symbol;

3. Keep records of the number of units of WPH returned to him; and

4. Keep records of the information made available to consumers.

A distributor who joins the take back scheme, discussed below, is exempt from points (1) and (3).

Distributors of NHW have no statutory obligations under the Regulations.

3.3 FINAL USERS

For historic WEEE (i.e. NHW put on the market in the UK before 13 August 2005), which is not being replaced or where the producer cannot be identified, the final user is responsible for the cost of collection, treatment, recovery and environmentally sound disposal of the WEEE. Such WEEE must be treated at an authorised treatment facility (see below) or exported for treatment, although this does not apply to the re-use of whole appliances.

However, such users may enter into an agreement whereby the parties to the agreement make alternative arrangements for dealing with such WEEE. Presumably, this means that final users may themselves join a compliance scheme and the scheme will take on responsibility for the WEEE.

Note that, in effect, this means that, from 1 July 2007, it is an offence for any business end-user to throw WEEE away.

4. COLLECTION, TREATMENT ETC. SYSTEM

4.1 HOUSEHOLD WEEE

As mentioned above, distributors of EEE intended for use in private households have certain obligations under the Regulations, including free like-for-like take-back and record keeping, both of which can be met through joining a Distributor Take-back Scheme (DTS). At the moment, only one such scheme exists although, when its contract runs out in 2010, it may be replaced or more than one DTS may be appointed.

The DTS accepts distributors as members and the income received, through membership fees, is used to establish and maintain a series of Designated Collection Facilities (DCFs) across the country. The DTS is responsible, in effect, for approving DCFs and ensuring a satisfactory nationwide accessible system. It was proposed that an adequate DCF network should cover, as a minimum, a similar geographical pattern to the existing local authority civic amenity site infrastructure. This will provide adequate public access for those wishing to discard household WEEE and members of the public are able to take WEEE to these DCFs and deposit it there free of charge.

Distributors may also offer a free take-back service and provide the WEEE so collected to a PCS, on condition that the PCS has established a system to receive such WEEE. This is a change from the draft Regulations, under which all separately collected WEEE had to pass through a DCF.

Once established, operators of DCFs (and/or distributors) and compliance schemes will set up agreements between themselves to have the waste removed, again free of charge. It is the responsibility of the PCS to ensure that all WEEE it collects from a DCF is delivered to an Authorised Treatment Facility (ATF), and treated according to the Best Available Treatment, Recovery and Recycling Techniques (BATRRT). ATFs are licensed under separate ‘permitting’ Regulations - the Waste Electrical and Electronic Equipment (Waste Management Licensing) (England & Wales) Regulations 2006 (S.I. 2006/3315; in Scotland, S.S.I. 2006/541) and regulated by the appropriate authority. Exporting for treatment is also allowed.

Once treated, WEEE will then have to be transferred to a reprocessor, unless the ATF is itself such a reprocessor. Again, WEEE may be exported for reprocessing. ATFs are responsible for providing statutory evidence notes on the amount received, treated, recycled, recovered and disposed of, but only when the ATF is 'approved' by the appropriate authority (hence becoming an AATF).

The amount of WEEE for which a PCS will be responsible will be calculated according to its market share of the total registered with the appropriate authority for a particular category in a given compliance period. So, for example, if one million tonnes of large household appliances (category 1) is registered in total, and a PCS registers 100,000 tonnes of this, its market share will be 10% and it will be responsible for the collection, treatment, recovery and environmentally sound disposal of this percentage of category 1 WEEE deposited at DCFs, or collected by distributors, during that compliance period. This percentage will, of course, be shared between the members of the scheme according to their own market shares.

4.2 NON-HOUSEHOLD WEEE

It is obvious that the system described above is designed exclusively to deal with consumer WEEE, not business WEEE, and, in principle, it is fairly simple - a producer joins a scheme, gives data on the amount and type of EEE put on the market, and pays the scheme for carrying out the rest, on a tonnage basis. For NHW, however, there is no such arrangement and the Regulations simply state that a PCS will finance the cost of collection, treatment, recovery and environmentally sound disposal of NHW arising from its members during a compliance period in the following circumstances:

• for all EEE put on the market on or after 13 August 2005;
• for all EEE put on the market before 13 August 2005 where a member of the scheme is supplying new EEE that replaces the old item and is of an equivalent type or performs the same function.

Producers of NHW and end-users may enter into commercial agreements whereby the end-user takes responsibility for all EEE from that producer when it becomes waste. This means that an end-user may join a compliance scheme and take responsibility for all WEEE arising from his activities, rather than contacting all his suppliers and/or suppliers’ compliance schemes, or may make other arrangements.

How all this works in practice is not elaborated upon and, as with nearly all the practical detail, it is up to the PCSs to develop systems to ensure compliance (which Econo-Weee has done).

5. COSTS

There are, of course, costs associated with compliance. For distributors, the cost is for membership of the DTS or for setting up his own take-back system. For producers, there are four separate fees:

• the fee for joining a compliance scheme (there is no joining fee for membership of Econo-Weee);
• the appropriate authority registration fee (see below);
• annual scheme membership fee;
• the cost of collecting, treating etc. the WEEE for which the producer is responsible, for both WPH and NHW (included in the membership fee for Fixed-price members of Econo-Weee - see ‘Membership Categories' on the main menu for details).

Under the draft Regulations, the fee payable by schemes to register its members with the appropriate authority was fixed at £707, regardless of the size of the business. This was based on the projected income the authorities would need to fulfil their duties under the Regulations and an estimated 5,750 producers.

Under the final Regulations, however, a sliding scale has been introduced (fees are payable to the producer’s PCS, which will then register the producer with the appropriate authority and pay the aggregate fee):

• for each scheme member that is not, and is not required to be, registered under the Value Added Tax Act 1994^[1] - £30;
• for businesses whose turnover is £1 million or less, not covered by the above case - £210; and
• for those businesses whose turnover is more than £1 million - £445

This is a significant decrease from the fee originally proposed, suggesting that the number of expected producers is much higher than initially believed (the figure of 100,000 has been bandied about).

[1] In other words, the sales revenue of the business is less than £67,000 per annum.

6. TIMESCALES

As mentioned above, the Regulations are based on an annual ‘compliance period’, from 1 January to 31 December. Activities in relation to a compliance period begin before it starts, continue throughout, and end in the following June.

The main dates are shown in the following table:

© John L.D. Kerr

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