New portable batteries obligations

Begonia Filgueira | 9 years ago

new_portable_batteries_obligations_main

You will have new legal obligations if, anywhere in the UK, you sell more than 32kg of portable batteries per year or place portable batteries on the UK market. The Waste Batteries and Accumulators Regulations 2009 (the Batteries Regulations) came into force on 5 May 2009, covering collection, treatment and recycling obligations for portable, industrial and automotive batteries. Here I will only cover portable batteries.

The distributor and producer-responsibility regime contained in the Batteries Regulations applies to England, Wales, Northern Ireland (NI) and Scotland. However, NI and Scotland have legislated separately on the following:

• NI’s Regulations implementing changes required to waste-management licences and charges, namely the Waste Batteries and Accumulators (Treatment and Disposal) Regulations (NI) 2009 and the Waste Batteries and Accumulators (Charges) Regulations (NI) 2009; and

• Scotland’s Regulations implementing changes required to waste management licenses and automotive and industrial battery landfill ban, namely the Waste Batteries (Scotland) Regulations 2009.

Portable batteries first compliance period timeline

05 May 09 Battery Regulations in force
05 May 09 Producer responsibilities kick in
31 May 09 Deadline for applications to become BCS
30 Sep 09 BACs approvals
15 Oct 09 Large producers to register with BCS
+ 28 days Small producers who place on the market after 15 October to
register with environment agency
31-Oct-09 BACs to register their members with the relevant regulatory agency
10-Feb-10 Distributor obligations kick in

Distributors

If you or your client sell more than 32kg of portable batteries per year to end users in England, Wales, Scotland or Northern Ireland (NI), you or your client have obligations under the Batteries Regulations. 32kg equals around 300 packs of four AA batteries per year, and sales can be as a retailer or directly to businesses, so a large number of businesses fall under the distributor umbrella. If you sell less than 32kg you are considered a ‘small distributor’ and do not have obligations, but may opt in if you wish to do so.

As a ‘not small’ distributor, from 1 February 2010 you have the following obligations under the Batteries Regulations:

• you must take back the waste batteries free of charge from end users;

• you must inform end users at points of sale of such take-back;

• you must not tell end user at the time of selling them batteries the cost of collecting, treating or recycling these batteries.

This means that you will:

• have to have collection points on site for consumers to dispose of batteries;

• need displays in your shop advertising the take-back;

• not disclose to customers the cost of disposing of these batteries; and

• not charge or require that another battery be bought in exchange for the disposal.

Distance sellers also have these obligations and are required to provide information on take-back, and take back either in their shops, by return post envelope or by agreement with a BCS.

The good news is:

• you do not require an environmental permit (or waste management licence, in NI or Scotland) in order to store batteries in a collection point on your premises in compliance with the Batteries Regulations;

• you have the right to request collection from a Battery Compliance Scheme (BCS);

• you will not have to pay a fee, meet any conditions or notify your collection.

There will need to be some contractual agreement between distributors and BCS, the terms of which the EA have refused to speculate on, given that it is a private matter between contracting parties. However, since BCS need the batteries to meet producer recycling targets, distributors are likely to be in a good bargaining position and may be able to negotiate on containers and publicity material from BCS, although there is no obligation for BCS to pay for these.

There will be an enforcement body to deal with distributors obligations but we still await DEFRA’s decision on this.

Producers

‘Large producers’ who place on the market more than one tonne of portable batteries in a compliance period are required to fund the collection, treatment and recycling of waste batteries and join a BCS. A producer is defined as ‘any person in the UK that, irrespective of the selling technique used (distance sellers included), places batteries, including those incorporated into appliances or vehicles, on the market for the first time in the United Kingdom on a professional basis’.

‘Placing on the market’ means supplying to a third person, not an end user. A ‘person in the UK bringing batteries into the UK’ means that the person supplying the batteries has to have a base in the UK. In this respect, the Batteries Regulations differ from the WEEE Regulations: distance sellers who do not have a base in England (eg: a Post Office Box or store or branch) are not producers under the Batteries Regulations.

Once a large producer signs up, they become a member and their BCS takes over their responsibilities for registration, reporting sales data, publicity, collection, treatment and recycling in exchange for a fee.

Large-producer obligations include:

• joining a BCS by 15 October of the previous compliance year in which they intend to place portable batteries on the UK market; and

• reporting quarterly to their BCS sales data by tonne of batteries placed on the market (there may be an estimation of this amount for 2009 if data is not available before 5 May 2009).

Small producers who place on the market less than one tonne of batteries in a compliance year have collection, treatment or recycling obligations. However they must:

• register with the relevant environment agency within 28 days from the first day after 15 October in which they place batteries on the market;

• report their sales data to the relevant environment agency by 31 January; and

• pay an annual charge of £30 to the relevant environment agency.

Compliance periods start in 2010 and run every year after that.

Battery Compliance Schemes

BCSs take over producer obligations under the Battery Regulations to:

• collect, recycle and treat portable batteries;

• publicise why batteries should be separately collected and what disposal

routes are available to end users;

• explain what the crossed-out wheeled bin means, and the chemical symbols for mercury, cadmium and lead.

In order to operate, BCSs require approval from one of the relevant regulatory agencies (NIEA, SEPA, EA). Approval by any of these enables a BAC to operate across the UK. Notwithstanding this flexibility, the application deadline for this year has closed and there have only been eight applications, all of them made to the EA in England. Applicants are Budget Pack Ltd (Bristol), BatteryBack Plc (Leeds), CCR REBAT Ltd (CCR UK Ltd, West Drayton), DHL Battery Compliance (Excel Europe Ltd, Coventry), eBatt (RESC Ltd, Bury), Econo-Batt Ltd (Brighton), ERP UK Ltd (London) and Valpak Ltd (Stratford-Upon-Avon).

Guidance recently published by BERR and Defra has put great emphasis for approval of BCS on their operational plan, including on explaining how they will fulfil their publicity obligations. Operational plans need to contain the following information:

• financial resources and technical expertise sufficient to deliver plans over a three-year period;

• details of its membership and obligation and the proposed arrangements for collecting, treating and recycling batteries to discharge this obligation;

• details of arrangements for meeting obligations in relation to publicity;

• systems in place to comply with the conditions of approval and the requirement to make a declaration of compliance;

• details of what reasonable arrangements will be made for accepting batteries from economic operators and waste-collection authorities;

• arrangements for free uplift from distributors; and

• an explanation of how the obligations of its prospective members relate to the arrangements put in place.

Applicants have spent their £17,000 non-refundable application fee and will be marketing heavily for members this summer. Applicants can provide further members’ details until 31 August and need to compete for producer market share in order to become an approved BCS.

Which approved BCS to join is an important and difficult decision for producers, since once a member has joined a so-far-untested scheme, they cannot leave within the first compliance year except where their BCS has had its approval withdrawn.

BCSs will also be making arrangements with distributors, since they need to collect their batteries to meet targets. Distributors may be in a good position to ask for free containers and publicity material from BCS, although there is no obligation for BCS to pay for these.

By 31 October BCSs need to register their producers with the relevant regulatory agency and, by 31 November, the agency will provide each producer with a unique registration number.

The targets

The Batteries Directive sets targets for the separate collection of waste portable batteries of 25 per cent by 2012 and 45 per cent by 2016 – a tall order if we consider that in 2006 the UK only recycled 2 per cent of portable batteries. The obligation is placed on BCSs, who must collect 25 per cent and 45 per cent, respectively, of their members’ market share; not meeting these targets is an offence punishable by a fine.

The Government has set interim targets in order to assist meeting the 2012 and 2016 obligations and, although these interim targets are not legally binding, guidance makes it clear that continued approval of a BCS is dependent on its ability to meet all targets, including interim targets. Not meeting interim targets can be an indication that the BCS will not meet its mandatory targets.

Further, a BCS’s ability to not over- or under-collect beyond its scheme operator’s obligation for the year in question is relevant to its continued approval. The regulator wants to make schemes self-sufficient, and to avoid reliance on trading between schemes to meet their operator obligations. Although once the BCS has registered evidence of collection with the regulator it can trade evidence, it needs to be very clear on how this will affect its BCS approval.

A members’ market share will be calculated in 2009 by applying 10 per cent to the weight (in tonnes) of batteries that the member places on the market in 2009. Given that the obligation to record sales only commenced 5 May 2009, if there is no previous data, the EA will estimate the total for 2009. 

Begonia Filgueira is a consultant to the DOENI and assisted in the drafting of the UK Batteries Regulations, Waste Batteries and Accumulators (Treatment and Disposal) Regulations (NI) 2009 and the Waste Batteries and Accumulators (Charges) Regulations (NI) 2009. For more information, please contact begonia@eric-group.co.uk.

About the author

Begonia Filgueira

Begonia is a specialist in Environmental Law, governance and negotiation. Her career now spans 20 years having started as an environmental lawyer in the City. She is a dually qualified UK Solicitor and Spanish Abogada who provides legal advice, trains professionals and carries out complex research in the areas of International and EU environmental law. She also advises on treaty negotiations and implementation of EU law. Begonia has advised UNEP, UNDP, the European Commission, DEFRA and DOENI. She also advises industry and NGOs on environmental policy and regulation. BREXIT negotiations is her current area of specialism.