Legal brief: A new industry caught by WEEE

Ross Fairley describes the recent changes to the producer responsibility regime to cover companies in the solar sector

The solar sector in the UK is growing, with the small-scale feed-in tariff (FIT) and support from the Renewables Obligation driving considerable expansion over the past few years. Almost 1.7GW of solar capacity has been installed in the UK under the FIT scheme, and the government's solar roadmap forecasts that around 10GW will be deployed by 2020.

The growth of the UK solar industry has seen many new companies established and more developers are gaining consent and constructing solar energy projects to tight deadlines. The UK has also seen an influx of overseas businesses setting up operations.

Activity in the UK's solar sector has been frenetic and it is understandable that not all companies will have looked up from their day-to-day development work to focus on whether there are any new and emerging EU rules and regulations that affect their business. One such example is the producer responsibility regime for the safe disposal of waste electrical and electronic equipment (WEEE), which has recently been amended and now covers solar photovoltaic (PV) panels.

New WEEE Regulations

The Waste Electrical and Electronic Equipment Regulations 2013 (the 2013 Regulations) came into force on 1 January 2014 and implement the recast WEEE Directive (2012/19/EU). The original WEEE Directive (2002/96/EC), published in 2002, covered a range of electrical and electronic equipment (EEE) used by consumers and businesses, and was implemented by the WEEE Regulations 2006. These regulations placed responsibility on EEE producers to fund the management of WEEE that arises from products placed on the UK market.

The 2013 Regulations extend the 10 original WEEE categories to cover a wider range of EEE, which now includes solar PV panels. Although some EEE is not caught by the new regulations until 1 January 2019, PV panel producers and distributors must comply with its requirements from 1 January 2014. Solar development businesses can be forgiven for thinking that they are not automatically a "producer" of EEE. However, the 2013 Regulations reiterate that, for the purposes of compliance, a producer refers to those that:

  • manufacture EEE;
  • import EEE into an EU member state (either for sale or installation); and
  • relabel EEE to place it on the European market under their own brand.

The definition of producer is sufficiently broad that businesses importing PV panels for installation on large-scale commercial and renewable developments are likely to be caught.

Impact on PV supply chain

All producers of EEE are legally required to register with an approved producer compliance scheme (PCS), an industry-managed take-back and recycling initiative. Through registration with a PCS, producers finance the cost of collection, treatment, recycling and disposal of both their own EEE placed on the UK market and any WEEE that their products replace.

Producers must inform the PCS provider of the amount of EEE they place on to the UK market in the "business-to-consumer" and/or "business-to-business" categories in each compliance year. A minimum threshold has been introduced in the 2013 Regulations. It means that producers who place less than five tonnes of EEE on to the market in a year can meet their obligations by registering with the relevant environment regulator, and are not required to join a PCS for the next compliance year.

The new regime also allows producers and non-household EEE users to enter into agreements for the treatment of WEEE using alternative financing methods, such as collecting and treating unwanted electrical equipment when new equipment is installed.

The anticipated lifespan of PV panels used in new projects is 25-30 years. The financing of safe disposal may, therefore, not be a significant concern for the solar industry for some time. However, compliance with the regulatory scheme is required now and new companies, many of which may be thinking of participating in public authority procurement programmes, should be careful not to find themselves blacklisted as a result of non-compliance. Companies and their officers also need to be wary of the criminal penalties of breaching the Regulations.

What producers need to know

From 1 January 2014, all manufacturers and importers of photovoltaic (PV) panels as well as firms rebranding PV panels for installation or sale must:

  • ensure that PV panels are marked with the waste electrical and electronic equipment (WEEE) symbol (a crossed-out wheeled bin);
  • keep records for at least four years of the amount of electrical and electronic equipment (EEE) placed on the UK market, broken down by categories listed under the regime;
  • sign up to an approved producer compliance scheme; and
  • provide customers with information as to the treatment and disposal arrangements they provide for EEE once it reaches its end of life.

Getting help

The Environment Agency has published guidance on when EEE is considered waste and the controls that apply, and how producers, importers and rebranders can comply with the Waste Electrical and Electronic Equipment Regulations 2013.

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