Henar Dyson, a solicitor at law firm, Thomson Snell & Passmore, outlines the legal obligations of firms in conforming to the WEEE Directive on the disposal of electronic products and packaging waste
All EU businesses are subject to an extensive waste recycling and disposal programme. The waste packaging aspects have been in place since 1994 and the electronic waste aspects (known by the acronym WEEE) since 2007.
The aim of the programme as a whole is to address the environmental impact of business activities. Businesses are encouraged to consider the need for and nature of the waste at the point of creation and then to take responsibility for its collection, recycling and disposal.
These two regimes overlap and, given the nature of the packaging of electronic goods, can be considered at the same time. A September 2010 case shows this well. It involved a wholesaler of hairdressing supplies, prosecuted for failing to register as a producer of electronic waste. The wholesaler also pleaded guilty to charges under the packaging waste regime. The fine came to over £30,000.
Prosecutions under WEEE have been rare, probably because of the wider publicity surrounding the implementation of the rules. However, there are frequent prosecutions under the waste packaging regime, which seems to catch more businesses out. A reminder of the key obligations is in order.
Producer responsibility
The basic principle is “producer responsibility” i.e. businesses must take financial responsibility for the environmental impact of their activities.
There are differences between the two sets of rules. For example, a ‘producer’ of packaging waste is any business that meets certain turnover and waste weight thresholds and handles waste in any of these ways:
• manufacturing raw materials for packaging;
• converting raw materials into packaging;
• packaging goods or products for sale;
• selling packaging (including packaged goods);
• importing packaging.
If a business handles at least 50 tonnes of packaging a year and has an annual turnover of more than £2m, it will be a producer. Group companies will need to combine the total packaging weight and turnover of the group.
A ‘producer’ of electronic waste is:
• a manufacturer and seller of own-branded electrical and electronic equipment;
• a reseller under its own brand of equipment manufactured by other suppliers. A reseller will not be a “producer” if only the brand of the manufacturer appears on the equipment, but the packaging waste rules could still apply to it;
• an importer or exporter of equipment on a professional basis into another EU member state.
Notably, there are no turnover requirements in relation to WEEE producers.
The registration and disposal obligations
In order to comply with the rules, business falling within the rules will need to:
• register with the relevant agency and provide information in relation to the waste recovered each year. In England and Wales, this is the Environment Agency; or
• arrange for the disposal of the waste either by joining a registered compliance scheme which will carry out the recovery and recycling obligations on its behalf, or by carrying out the recovery and recycling of waste itself.
The information requirement
Producers of electronic goods must mark them to assist with their separate collection at the end of their life. They must also make information available to treatment facilities in respect of new types of goods that they put on the market.
In addition, distributors of electronic equipment (retailers or wholesalers of new electronic goods for use by households) must establish and inform consumers about a ‘take back scheme’. This will allow the consumer to dispose of old goods, at the seller’s expense.
Sellers of packaging or packaged goods have an additional obligation to advise their customers about how packaging waste can be recycled and where waste can be taken for collection.
The offences
The fine detail of both sets of regulations is beyond the scope of this article. Unfortunately, ignorance is no defence and the criminal sanctions for failing to comply are considerable. Smaller cases can attract a fine up to £5,000 per offence.
More significant cases can attract an unlimited fine. The largest fine to date, which related to a waste packaging prosecution, is £250,000.
The Environment Agency now has the right to impose civil sanctions in certain cases, including fines. This is a non-court based route, that is clearly a faster, cheaper option for the Environment Agency.
Steps to take
All businesses falling within the rules should:
• inform themselves about the extent to which the rules apply to them. Berr has produced a guidance note for businesses
• appoint a senior person to manage the regulatory obligation. Consider arranging for them to attend a local seminar on the subject;
• use the help available online. Visit the Environment Agency website (www.environment-agency.gov.uk). Make regular visits to keep up to date with developments;
• monitor the activities of the business. Expansion may increase the amount or type of waste produced, triggering a requirement to register.