29/09/11

By Henar Dyson

The EU waste recycling and disposal programme is extensive and complex for businesses to interpret. The programme is aimed at encouraging businesses to consider the need for and nature of the waste that it handles and then to take responsibility for its collection, recycling and disposal.

The waste programme includes rules that apply to packaging waste and electronic waste (WEEE). Seemingly, the publicity surrounding the arrival of WEEE in 2007 has been more effective than that relating to the packaging waste regime, from 1994. This has meant that prosecutions under WEEE have been rare. However, there are frequent prosecutions under the waste packaging regime, which seems to catch businesses unaware of their obligations.

Unsurprisingly, the two regimes overlap given the way in which electronic goods are packaged. 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.

In its defence, the wholesaler said that it was unaware of its obligations. This defence could be easily ignored if it was not heard time and time again during prosecutions. The fine in that case came to over £30,000.

Producer responsibility

The basic principle is that businesses falling within the regimes must take financial responsibility for the environmental impact of their activities.

There are differences between the packaging and electronics regimes that will need to be considered in detail. However, it is entirely possible for both regimes to apply to a single business.

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;

an importer or exporter of equipment on a professional basis into another EU member state.

It is important to note that there are no turnover requirements in relation to WEEE producers.

The registration and disposal obligations

In order to comply with the rules, any business falling within either or both sets of 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 to carry out the obligations on its behalf, or by carrying out the recovery and recycling of waste itself.

The information requirement

Producers of electronic goods must mark the goods 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.

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 criminal sanctions for failing to comply with an applicable regime 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, under the waste packaging regime, was £250,000.

The Environment Agency now has also has the right to impose civil sanctions in certain cases, including fines. This is a swifter, cheaper option for the Environment Agency and therefore likely to be used increasingly.

Steps to take

First of all, consider whether the rules might apply to the business. If so:

appoint a senior person to manage the ongoing regulatory obligation and to keep up to date with developments;

use the help available online. Visit the Environment Agency website: www.environment-agency.gov.uk

BERR has produced a guidance note for businesses: http://www.berr.gov.uk/files/file54145.pdf

monitor the activities of the business. As it grows, the scale or type of waste produced may bring the business within one or both regimes.

About The Author

Henar Dyson is a solicitor at law firm, Thomson Snell & Passmore