Adopted in February 2003, the WEEE Directive must be transposed into UK law by August this year - a deadline that the Government has repeatedly vowed to meet. Draft regulations are due in May.
In November 2003, the Department of Trade and Industry issued its second consultation paper on the transposition of the Directive (ENDS Report 347, pp 52-54 ). Responses from key interested parties show that anxiety is growing about the large number of issues that have yet to be resolved - not least how the proposed national clearing house will fulfil its role and be regulated.
In a pattern reminiscent of the debate eight years ago about the implementation of the packaging Directive, battle lines are being drawn by the various players - producers, retailers, councils, recyclers and regulators - over the legal and financial responsibilities involved.
The system could operate under a set of regional or nationwide logistics contracts (ENDS Report 349, pp 17-18 ), which would be awarded by compliance schemes or individually registered producers. Most large producers are expected to join REPIC, the scheme established by trade bodies AMDEA and Intellect, which represent the white goods and IT, telecommunications and electronics industries.
However, it is not clear if the clearing house will cover the whole of the UK. The Scottish Executive is concerned that a system of large regional or national contracts between compliance schemes and recyclers would benefit a few large recyclers at the expense of smaller ones.
Uncertainties over what functions the clearing house will perform and how it will be regulated are of "increasing concern" to the Environment Agency, which warns that without "urgent" clarification of such issues, it will not be able to ensure the necessary systems and trained staff are in place.
Most respondents to the DTI consultation support the clearing house concept but believe that its role should be restricted to registration of producers, the collection of market share data and the calculation of producers' recovery and recycling obligations. Allowing it to manage the collection of WEEE from CA sites would, they believe, create a monopoly.
But conversely, said the British Retail Consortium, there is a danger of creating a system that leads to a multiplicity of collection contracts with the same set of contractors in each region, all servicing the same sites. One way of avoiding this, it said, could be the creation of regional collection contracts.
There are differing views on whether the clearing house should hold all data and report to the Agency, or whether some data, such as those on meeting the recycling targets, should be reported directly to the Agency.
The Environmental Services Association suggested that there should be a WEEE carriers registration system within the clearing house framework, including a database of accredited waste carriers to which the clearing house would allocate collections. This, it said, would provide a clear audit trail to ensure that equipment is delivered to authorised treatment facilities.
A number of respondents pointed out that this system would be unfair in some cases. "Producers of products that are economic to recycle may end up subsidising producers whose products are costly to recycle," warned the Industry Council for Electronic Equipment Recycling (ICER).
One example where this could occur is with producers of IT and telecommunications equipment and consumer equipment - two categories lumped together under a 75% recovery target under the current proposals.
The idea is strongly supported by REPIC, and by most producers. Intellect said the fee should be the same amount for every type of product independent of weight or value.
Retailers, however, strongly oppose the concept. The BRC said that it would reduce the incentive for producers to design environmentally advanced products since "it is unlikely to represent the true cost of operations." Retailers are also concerned that their customers would regard the fee as a tax.
The retail sector is also expected to pay for a new WEEE recycling fund of £5 million per year between 2005-2010, to which councils could submit bids for funds to provide collection facilities at CA sites. Together the fund and the network should not cost more than £10 million per year.
Retailers that already take back WEEE upon delivery of new appliances to households believe they should be rewarded for their contribution to the national WEEE recycling picture.
Dixons, for example, whose Currys stores offer a take-back service for white goods, wants the retailer compliance scheme to allow its members to opt in or out on an equipment-category basis. Government failure to account for such services when calculating retailers' contributions to compliance costs "is likely to result in their significant curtailment or withdrawal."
This is a serious threat given the significant contribution that such take-back services make to the overall collection of WEEE. Although the UK is believed to collect around 7kg of WEEE per capita, compared with the Directive's target of 4kg, the target may be increased when the Directive is revised in 2008.
The BRC "strongly disagrees with the principle of requiring retailers to generate a pre-defined sum of money which incorporates a ring-fenced amount for local authorities." Instead, the compliance scheme should deliver a network based on a defined density of collection facilities. Such a network it believes would cost less than £10 million.
Moreover, as ICER put it in its response, "having created the necessary collection network to meet their obligation, retailers do not consider they should fund civic amenity site improvements as well."
The BRC hopes to develop with the Government a tender document, based on "an output-based funding mechanism", for inclusion in the draft regulations.
Arguing that some local authorities will not be able to accommodate WEEE collection facilities at their CA sites, the Furniture Reuse Network, which represents refurbishment companies and charities, has suggested that the fund should be opened up to refurbishers, some of which could install "bring" banks on their premises.
Bodies representing councils, refurbishers and the waste industry oppose capping the fund at £10 million, on the grounds that it would be too small. The DTI's estimate of the cost of upgrading CA sites "does not accurately reflect current CA site capacity, the range of activities undertaken at sites or the projected waste streams that operators will be expected to manage in the future," said the ESA.
The Local Government Association was concerned that the DTI is assuming that CA sites will be the main collection points "despite the fact that many people do not have access to them." It also warns that there seems to be an assumption that that all CA sites can be upgraded to separate WEEE, whereas "this is simply not the case". Cambridgeshire, for example, has space at only four of its ten sites.
The Local Authority Recycling Advisory Committee said that some local authorities do not see why they should provide collection facilities for WEEE when they currently have no statutory recycling targets for household waste beyond 2005/06. Councils may choose to collect WEEE only if the cost is less than landfilling it.
LARAC warned that if WEEE bring banks are used, compliance schemes should be allowed to rely on local authorities' statutory obligations to collect litter to clear any waste fly-tipped at the banks.
It also warned that bring events are unlikely to be successful as it has proved difficult to get the public to deposit specific types of waste at CA sites, even under supervision.
LARAC called for the establishment of an independently chaired forum, involving all stakeholders, to agree collection specifications. These would cover issues such as the frequency of collections, types of containers and quality control.
The consultation paper suggested that an indicator on reuse could be developed for inclusion in the Best Value performance indicators, which apply to local authorities in England and are currently under review.
This is supported by the FRN, which notes that while the Best Value indicator for recycling of household waste explicitly excludes reuse, councils in Wales are required to report on the amount of municipal waste "recycled or reused". It is also supported by the ESA, whose members often work with refurbishers in partnership with local authorities.
However, the LGA and LARAC argue that any reuse targets should be placed on producers instead of councils, in line with the concept of producer responsibility. Councils may also believe that there is a potential conflict between priority being given to reuse and the fact that it removes equipment from a waste stream that can count towards councils' statutory household waste recycling targets.
Other suggestions from the DTI were that compliance schemes, as a condition of registration, could be required to show how they would encourage reuse, or incentives could be given to producers to do so.
Unless these measures are implemented, said the FRN, "the whole refurbishment sector, private as well as social, will be fundamentally disadvantaged." The organisation has called for a mandatory requirement for all relevant parties to assess all collected equipment for reuse, however it is collected. All collection contracts would also have to require the separation of equipment for reuse.
Appliance manufacturers and retailers - the larger of which with own-brand products count as "producers" under the Directive - do not want reuse to increase because such products undermine sales of new products.
Intellect said that reuse of domestic WEEE "raises serious issues", such as "very low quality", and that producers have no control over refurbishment yet will have a liability if the equipment still carries their brand name.
The BRC wants reuse organisations to be allowed to register as collection points. This would help to ensure that the WEEE stream is filtered for items suitable for reuse and would save refurbishers from having to transfer equipment that is not reused to another location - but such sites could also be part of the retailer compliance scheme's network of drop-off points for consumers.
In particular, the status, powers and responsibilities of the clearing house should be clarified "urgently" if the registration of producers is to begin in "late 2004/05". The fact that this date is later than that proposed in the consultation paper - August 2004 - suggests that the DTI's estimate of when regulations will be laid before Parliament has slipped back a few months.
The Directive does not allow for a de minimis registration threshold for producers, and the Agency expects a large number of producers will fail to register. To avoid a hefty workload in terms of prosecutions, it suggests that such "free-riders" could be allowed to accept an enhanced obligation.
A major task for the Agency will be permitting of WEEE storage, treatment and recovery sites. These provisions will be implemented as part of the new permitting regime for waste facilities on which the Government plans to consult shortly. Guidance on when equipment collected through the retailer take-back network is "waste" needs to be clarified and made consistent across all waste streams and sectors.
The waste industry is eagerly awaiting Agency guidance, due in May, on the treatment and recovery of WEEE so that it can plan the necessary investments in facilities. This, said the ESA, should state the de minimis level of residual fluid that can remain in treated equipment and clarify which materials and components should be removed at CA sites prior to reprocessing.
The DTI expects that the guidance will not include minimum quality standards. However, Transform, the compliance scheme set up by Biffa and EMR, said standards for treatment and processing should be covered by legislation to ensure there is no repeat of the "fiasco" of the EU Regulation on ozone-depleting substances "where [fridge recycling] plants are still operating to sub-standard specifications without penalty".
The Agency said that treatment should be carried out prior to shredding where it prevents the contamination of shredder output and thereby maximises opportunities for recycling and minimises the volume of hazardous waste. It should also be carried out where to do otherwise would prevent reuse and recycling of components. The FRN said mercury switches, batteries, cartridges and cathode ray tubes should be removed.