Batteries Regulations summary – 20 April 2009
1. Introduction
a. The Batteries Regulations have now been laid before Parliament and can be found in full at Appendix 2 below.
b. A number of significant changes have been made from the proposals contained in the recent consultation and draft Regulations. These include
· A change in threshold above which producers are required to finance treatment etc of portable batteries from 3 tonnes down to 1 tonne of batteries placed on the market
· The requirement for small producers (below 1 tonne) to register with the Agencies and NOT with a scheme.
· The increase in threshold above which retailers must offer free take back from 16kgs/yr to 32 kgs/yr.
· A removal of the 280m2 floors pace threshold below which retailers did not have to offer in store take back.
· The removal of the two stage approval process for schemes – now down to a single application.
· A change in the scheme fee mechanism, lowering the £149k annual registration fee to £118k but applying a £680/producer additional annual registration fee.
c. There are a number of areas that require clarification and we understand that a Guidance Document will be released shortly.
d. Appendix 1 contains a summary of each Regulation to simplify the process of finding specific paragraphs.
2. Timeline
31 May 2009 / Schemes must submit application for approval30 Sep 2009 / Agencies must notify schemes of approval
15 Oct 2009 / Large producers must register with a Compliance Scheme
Small producers must register with the appropriate Agency
31 Oct 2009 / Schemes must register their members with the Agency they are approved by
30 Nov 2009 / Agencies must provide Producer Registration Numbers for registered producers
1 Jan 2010 / Producer financing obligations start
31 Jan 2010 / Schemes and small producers must submit relevant ‘placed on the market’ data to relevant Agencies
1 Feb 2010 / Retailer takeback obligations begin
31 Mar 2010 / Agencies must inform schemes of market obligation for 2010
End of month following each quarter / Schemes must supply data to Agencies for batteries placed on market during quarter by its members
End of month following each quarter / ABTOs and ABEs must submit quarterly returns for batteries received for treatment
31 May each year / Schemes must submit a declaration of compliance
31 August each year / Schemes must submit revised Operational plans
31 Oct each year / Schemes must re-register members with Agency
3. Overview
a. The Batteries Regulations will, from 1 January 2010, require certain producers - manufacturers, importers and own brand sellers - to take responsibility for the collection of sufficient portable batteries to enable the UK to meet a collection target of 25% of batteries placed onto the market by the end of 2012. The UK is thought to be currently collecting approximately 2-4% of the estimated 40,000 tonnes of portable batteries placed on the market
b. Large producers – those placing more than one tonne a year onto the market – will have to join approved compliance schemes that will organise the collection, treatment and recycling of sufficient batteries to meet their member’s target obligations. Small producers – those placing less than one tonne onto the market – must register with the appropriate environmental Agency.
c. Producers must register by mid October.
d. Non-enforceable interim targets have been put in place for 2010 and 2011 to encourage a stepped approach to meeting the 2012 target.
e. Compliance schemes will have to put in place arrangements with various collectors to meet these targets. It is expected that these will come primarily through retailers offering free in-store takeback to consumers, local authorities collecting batteries at Civic Amenity sites and from households and through other arrangements such collections from businesses.
f. Retailers that sell a high volume of batteries will have to provide free takeback facilities to their customers from 1 February 2010.
g. All collected portable batteries will have to be taken to approved battery treatment facilities that will issue evidence to the scheme responsible for their delivery. The sum of this evidence will be used to demonstrate that they have collected sufficient batteries to meet their targets.
h. The cost for large producers will be significantly more than small producers. Small producers will be charged an annual fee of £30 to register with the Agency. Compliance schemes will be charged £118k per year plus £680 per member which they will have to recover from their members. They will also have to charge their members for the costs of the collection, treatment and recovery of portable batteries.
i. The Regulations also introduce producer obligations for industrial and automotive batteries. However, because these are already hazardous waste and therefore collected separately and also have a value, it is not expected that the Regulations will have an impact on the process for industrial and automotive battery collection.
j. However, producers of these batteries will be required to register with the Department of Business Enterprise and Regulatory Reform (BERR).
4. Detail
a. Portable batteries
i. The Batteries Regulations come into force on 5 May 2009. From this date, producers will be expected to have records of the amount of batteries they place onto the market.
ii. Portable batteries are considered to be all types of battery that are not industrial or automotive including battery packs, purpose built fitted batteries and rechargeables.
iii. The definition of ‘placed onto the market’ has not yet been clarified, but is expected to be similar to packaging and WEEE where it is available for supply to retailers ie has entered to country or been manufactured, not actually sold to end users.
iv. The Regulations define two class of producer. Small producers are those that place 1 tonne or less of batteries onto the market in the relevant year. Large producers are those that place more than 1 tonne onto the market.
v. For 2010, producers must register by 15 October. Large producers must register with a scheme and small producers must register with the relevant environmental Agency that covers the area where their head office is based – the Environment Agency (EA) for England and Wales, the Scottish Environmental Protection Agency (SEPA) for Scotland and the Northern Ireland Environment Agency (NIEA) for Northern Ireland. Registration will simply require company details.
vi. Compliance Schemes will need to get approved. Applications for approval must be received by 31 May 2009 with a non-refundable fee of £17k. For subsequent years, Applications will need to include extensive information about how the scheme will subsist for at least three years and operate to meet their members targets. Schemes will also be required to show how they will inform and educate the public about the benefits of battery recycling.
vii. The Agencies are not required to notify a scheme of their approval until 30 September, giving schemes two weeks to accept registrations from members.
viii. Schemes must then register their members with the appropriate Agency by 31 October, paying a fee of £118k plus £680 per member. This is an annual charge designed for cost recovery by the Agencies for their costs of registration, monitoring etc.
ix. Small producers must pay an annual fee of £30 when they register with the Agency but then have no further financial liability under the Regulations. It pays to be a small producer.
x. Small producers and schemes must provide data for batteries placed onto the market to the relevant Agency by 31 January. For 2010 compliance period, this data must be for 5 May – 31 December 2009. For schemes, the Agencies will then estimate the amount placed onto the market from 1 January – 5 May.
xi. Small producers only need to supply data once a year by 31 January. Large producers will be required to provide quarterly data to their schemes which must be submitted to the Agencies by the end of the month following each quarter. The weight of batteries placed on the market in tonnes split by chemistry. It is not clear whether this is to the nearest tonne of part of a tonne.
xii. By 31 March in the year following a compliance period, the Agencies must inform schemes of their final target tonnages. For 2010, this will be based on 2009 data. For 2011, on the average of 2009 and 2010 data and for 2012, on the average of 2010 and 2011 data.
xiii. By 31 May, schemes must then submit a Certificate of Compliance for the previous year, showing that they have sufficient evidence to meet the targets. However, it should be noted that whilst the targets are laid down in the Regulations, failure to meet the 2010 and 2011 targets are not considered offences. The targets are as follows and relate to the sum of portable batteries placed onto the market. There is no split by chemistry.
· 2010 – 10% (not enforceable)
· 2011 – 18% (not enforceable)
· 2012 – 25%
· 2013 – 30%
· 2014 – 35%
· 2015 – 40%
· 2016 and beyond – 45%
xiv. Producers may register after 15 October with a scheme, but will in theory be subject to prosecution unless they are new producers in which case they must register within 28 days of becoming a producer.
xv. Following registration – by 30 November in 2009 and within 28 days subsequently - the Agencies will provide a unique battery producer registration number that will remain with a producer regardless of which scheme they are in.
xvi. All data and company information supplied by producers and schemes must be signed off by a Directors signature although the regulations allow this to be electronic.
xvii. From 1 January 2010, Compliance Schemes will be required to pay the costs of collection, treatment and recycling of portable batteries. As part of their application for approval, they will have had to indicate who they will be dealing with to get sufficient batteries to meet their likely obligations and these relationships should then commence from that date.
xviii. Schemes will be required to provide the following:
· Free collection from retailers where those retailers have provided free takeback.
· Free drop off points for ‘economic operators’ (commercial collectors) and local authorities.
· All collected batteries must be delivered to approved battery treatment facilities or approved exporters. These will then issue evidence to schemes.
xix. If a scheme collects more batteries than it needs to meet its targets, it must still pay for the costs of those additional batteries. In theory, they may be able to get another scheme to take on the costs in return for the evidence, but if the targets are not compulsory, it is unlikely they would be able to do so. This would mean that a scheme that miscalculated the success of their battery collecting relationships might end up costing their members considerably more than another scheme that decided to play it safe. There is still a question over whether it will be permissible to trade actual evidence.
xx. Under the EU Directive, retailers are required to provide free takeback for portable batteries from consumers.
xxi. The Regulations have imposed a threshold for that responsibility that has significantly changed from the threshold proposed in the consultation.
xxii. Regardless of floor size, any retailer that sells more than 32kgs of batteries in a year must offer free takeback either in-store if a shop based retailer or through other means if on-line.
xxiii. 32kgs is the equivalent of 25 AA or 4 D batteries a week. This would suggest that many thousands of retailers will be caught by this requirement.
xxiv. It is expected that retailers will enter into arrangements with specific schemes for regular collections, however if a retailer is unable to do that, it is entitled to phone any scheme to request a collection. The scheme must respond within 21 days and carry out the collection within a reasonable time.
xxv. One issue still to be resolved is whether mixed portable batteries have to be collected under Carriage of Dangerous Goods requirements. This would necessitate ADR trained drivers and properly marked vehicles, making it very difficult for the big retailers to back haul. This is being reviewed by the Agencies and Defra.
xxvi. In addition, obligated retailers are required to provide information to consumers on the environmental issues of battery recycling.
b. Industrial and Automotive batteries
i. I&A battery producers must register by 16 Oct 2009 with BERR unless they are a portable battery producer as well, in which case they must only register with the appropriate Agency.
ii. There is no fee for registration.
iii. Producers must supply data by 31 Mar to BERR in the year following a compliance period of the amount of batteries placed onto the market by chemistry in that compliance period.
iv. Industrial battery producers are, from 1 Jan 2010, required to provide free take back:
v. If they supplied the end user
vi. If they supplied batteries of the same chemistry to the end user but the end user can’t, for some reason, return them to the supplier