Charging up for the battery regulations

As the first compliance schemes for the batteries directive get underway, Helen Nicholson looks at the directive in more detail and the obligations it imposes

The directive on batteries and accumulators, and waste batteries and accumulators, introduces tighter controls on the manufacturing and labelling of batteries and producer responsibility for the cost of the collection, treatment, recycling and disposal of batteries. The disposal of waste automotive and industrial batteries by landfill or incineration will also be banned from 1 January 2010.

The directive has been transposed into UK law by two new regulations - the Batteries & Accumulators Regulations 2008 and the Waste Batteries & Accumulators Regulations 2009, which came into force on 26 September 2008 and 5 May 2009 respectively. The remaining requirements of the directive will be incorporated by forthcoming amendments to existing dangerous goods and hazardous waste legislation.

Both sets of regulations cover all batteries regardless of shape, volume, weight, composition or use, including accumulators or rechargeable batteries, whether or not incorporated into appliances. However, the 2009 regulations do not apply to batteries used for military or space purposes.

From 26 September 2008, the 2008 regulations prohibit the placing on the market in the EEA of all batteries containing more than a specified quantity of mercury and all portable batteries containing more than a specified quantity of cadmium. There are some caveats. There is a minimum threshold for button cells with a mercury content of 2% or less by weight.

Similarly, portable batteries intended for use in emergency and alarm systems, medical equipment or cordless power tools are exempted from the restriction on cadmium. The 2008 regulations also impose labelling requirements for batteries and a need for battery-powered appliances to be designed so that batteries can be readily removed.

The 2009 regulations introduce a scheme of producer responsibility for the cost of the collection, treatment, recycling and disposal of batteries dependent on the type of battery. As regards portable battery producer obligations, those businesses that place over a tonne of portable batteries on the market in any compliance period must join a batteries compliance scheme (BCS).

That BCS must in turn finance the net costs arising from the collection, treatment and recycling of their members' share of all waste portable batteries collected in the UK. Compliance periods run on a calendar year basis. If a producer does not join a BCS then it must finance the net costs for which it is responsible directly.

Data collection
All businesses which produce portable batteries are obliged to collect data evidencing the quantity and chemistry type of portable batteries which it has placed on the UK market since 5 May 2009 and in each subsequent compliance period and keep that data for four years. If it is a member of a BCS then it must report that data to the operator of the scheme. Otherwise, the data must be reported to the appropriate national environmental regulator.

The BCS must register its members and ensure all waste batteries collected by it or on its behalf are delivered to and accepted by an approved battery treatment operator or exporter for treatment and recycling. Various record keeping and reporting obligations apply and the BCS must ultimately provide a declaration of compliance to the regulator.

Producers of waste industrial and automotive batteries must take back their waste batteries from end-users when requested in certain circumstances at no charge and must ensure all waste batteries are delivered for treatment and recycling to approved treatment operators or exporters. Producers must also register with BIS and keep records of the tonnage of batteries which they placed on the market in a compliance period and which they have taken back.

In addition, shops or other distributors which supply 32kg or more portable batteries to end-users in any compliance period must take back waste portable batteries in store at no charge from 1 February 2010 and inform end-users of the availability of that facility. A distributor may request a BCS to collect its waste portable batteries without charge.

Local authorities
While there are no direct obligations on local authorities under these regulations, it is likely that where they have contracts with an existing producer compliance scheme in relation to the collection of WEEE, they will look to extend their arrangements to include waste batteries collection if that scheme is also operating a BCS. However, an authority may make arrangements with an unconnected BCS if it chooses.

There could be benefits if local authorities and BCSs co-operate by taking advantage of local authority collection infrastructure, expertise in waste collection and potential access to batteries in household waste and also collection at civic amenity sites, and public buildings like libraries and council buildings.

The National Measurement Office is responsible for enforcing the 2008 regulations in the UK whereas for the 2009 regulations, enforcement will be by the national environmental regulator. Both bodies have extensive powers to make investigations and gather evidence, as well as powers of entry and inspection.

Helen Nicholson is a solicitor at Pinsent Masons

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