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Don’t dump tech: analysis of the Nigerian Communication Commission’s draft e-waste regulation for the telecoms sector

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Rotimi Akapo

Advocaat Law, Lagos

rotimi.akapo@advocaat-law.com  

Lateef Bamidele

Advocaat Law, Lagos

lateethamidele@advocaat-law.com

Introduction

E-waste means electrical and electronic equipment(EEE),whole or in part discarded as waste by the consumer or bulk consumer as well as rejects from manufacturing, refurbishment and repair processes.[1] Constantly evolving technology, faster networks, new applications and services improvement in rural connectivity technology, initiatives to drive access and communication services to previously unconnected and unserved areas, the increasing rate of multiple device ownership, the tendency to electrify non-electrical equipment, cloud computing services, and shorter replacement cycles and other factors have all led to the proliferation of EEE, and consequently to e-waste.

A recent report by the World Economic Forum classified e-waste as the fastest growing waste stream in the world with approximately 48.5 million tonnes in 2018 alone.[2] Given the recent growth in the ICT sector, Nigeria continues to struggle with e-waste particularly in its commercial capital Lagos state, a direct destination for imported EEE where brokers and traders from other countries engage in the sale and purchase of second-hand electronic devices.[3] Lagos is regarded as the leading destination in Africa for large scale shipment of EEE from the United States, Europe and Asia with an estimated 500 containers of approximately 500,000 used EEE arriving the country’s ports monthly. This article examines the draft regulatory framework released by the NCC to combat e-waste in the telecoms sector, the responsibilities of the different stakeholders, monitoring the directions and sanctions for non-compliance.

The Nigerian Communications Commission (NCC) Draft E-Waste Regulations

The NCC Draft E-Waste Regulation (the Regulation), aims at providing a regulatory framework for the management and control of e-waste in the telecoms sector. It sets out provisions to promote reuse, recycling and other forms of recovery of used telecoms equipment so as to cut greenhouse emissions and contribute towards sustainable development.[4] The Regulation, amplifies the Extended Producer Responsibility (EPR) programme by setting out the responsibilities of each stakeholder in the sector, requiring requires them to obtain an authorisation valid for five years, for the purpose of achieving the objective.[5] EPR is the responsibility of any producer of electrical or electronic equipment, for channelling e-waste to ensure its environmentally sound management.

Responsibilities of manufacturers

The Regulation provides that every manufacturer of EEE covered by NCC’s Type Approval Standards,[6] is expected to apply for EPR authorisation and implement the programme by collecting e-waste generated at the end of life of the products manufactured or imported into Nigeria. This will be either in form of buy-back arrangement, exchange scheme, deposit refund scheme, return to retail store, drop-off site, collection event, whether directly or through any authorised agency and channelling the waste to authorised recyclers. The manufacturer is required to fix a visible permanent label identifying its name on the product at the production stage.[7]

Among other responsibilities, the manufacturer is expected to provide measures to recover the e-waste from consumers through a collection system which allows the distributor or retailer to accept e-waste from its final holders or private households free of charge, or alternatively by concluding contracts with collection facility agents or others for the collection and sorting of e-waste from final holders or private household free of charge. Contact details including free-phone telephone numbers must be provided to consumers through the manufacturer’s website and product user documentation to facilitate return of the e-waste. If the recovery is by way of deposit refund scheme, the manufacturer is to refund the deposit amount to the consumer, while annual returns of EPR in specified form must be filed with NCC before the end of June of each following year.

Responsibilities of collection and disposal facility agents and vendors

The Regulation envisages a collection agent as a new stakeholder to collect e-waste on behalf of the manufacturer, vendor, and recycler where authorised, and bans unlawful disposal of e-waste in receptacle bins and dump sites in a way that will adversely affect human health and the environment.[8] The vendor, where authorised by the manufacturer, is to collect and transport e-waste by providing the consumer with a collection box, bin or a designated area for deposit or through take back system and send this e-waste to the collection facility, or recycler as designated by the manufacturer. Both the agent and the vendor are expected to ensure that no damage is caused to human health and the environment during the storage and transit of the collected e-waste. E-waste cannot be stored for more than six months unless otherwise permitted by the NCC.[9]

Responsibilities of consumers, recyclers, and transporters

The Regulation requires every consumer or bulk consumer to channel all e-waste through collection centres or dealers of authorised producers, or recyclers, or through the designated take-back service providers of the producer and such e-waste should not be mixed with waste containing radioactive materials. The Regulation further requires a bulk consumer to file annual returns stating that e-waste has been correctly returned.[10] The role of the recycler licenced by the NCC is to ensure that collection, dismantling and recycling of e-waste is carried out in a way which results in no damage to human health or the environment. The recycler is further required to make its records available for scrutiny whenever demanded by NCC.[11] An e-waste transporter shall maintain signed copies of all instances of e-waste and/or receipts and copies shall be made available for review during transit or during an inspection visit by NCC officers. A copy of the evidence document must be forwarded to the NCC within 30 days of the waste’s removal.[12]

Responsibilities of the importer

Every licensed importer is required to ensure that all imported EEE is type-approved by the NCC, fit for purpose and is of comparative models of equipment in use. Importers are not allowed to import scraps or equipment containing more than the tolerable concentration value of some restricted substances. They must ensure that their products are correctly packaged for protection during transit, loading and unloading and are required to obtain approval from the NCC for EEE received as donations from any person. Equally, annual returns in specified form must be filed on or before 30 June of the following year.[13]

Enforcement mechanism

The Regulation sets out various fines ranging from NGN200,000 (approx. USD$500) to NGN10m (approx. USD$26,000), for non-compliance which includes, but is not limited to operating without EPR and operating as an importer, transporter or recycler of EEE without authorisation. Submission of false records is subject to a fine of NGN10m, and the NCC may revoke the licence granted to any stakeholder if the default continues. The Regulation further permits the NCC to seize any EEE which production or importation violates the provisions of the Regulation.

Conclusion

There are divergent views on e-waste management being the exclusive preserve of National Environmental Standards and Regulations Enforcement Agency (NESREA) as opposed to other sector regulators also policing environmental issues in their various sectors. This regulatory overlap is causing confusion in the management and enforcement of e-waste resulting in the non-compliance with laws and regulations. This is evident by the lack of success of the National Environmental (Electrical Electronic Sector) Regulations[14] issued by NESREA in 2011 which was anchored on the five ‘R’s – Reduce, Repair, Re­use, Recycle and Recover – as the primary drivers in eliminating e-waste. It is perhaps expedient for the purposes of effectively meeting the challenges posed by e-waste, that the NCC and other sector regulators combine efforts with NESREA to regulate the problem.

All the states of the federation must also be part of the debate in eliminating e-waste. In Lagos state for example, being a popular destination for dumping e-waste, agencies such as the Lagos State Infrastructure Maintenance and Regulatory Agency (LASIMRA) must work in conjunction with Lagos State Environmental Protection Agency (LASEPA) and the state house of assembly in developing robust laws and policies around the effective management of e-waste without prejudice to the overriding authority of the National Regulator.

While the Regulation is a welcome development as a means of sectoral commitment to tackling the growing menace of e-waste in Nigeria, there is also a need to ensure that adequate steps are taken to integrate the existing informal waste recyclers into the formal recycling structure to be adopted by every producer, manufacturer, collecting agent and recycler. The telecoms sector is a major contributor to the use of EEE and with this Regulation, a path can be charted to face the challenge effectively through the involvement and support of all stakeholders.


Notes

[1]Definition provided in Regulation 30, Nigerian Communications Industry Draft E-waste Regulations 2018.

[2]Everest Amafuele, ‘NCC moves to stop e-waste dumping in Nigeria’, Punch, 6 March 2019, available at: https://punchng.com/ncc-moves-to-stop-e-waste-dumping-in-nigeria/ last accessed, 13September 2019.

[3]Richard Summers,‘Legal aspects of E-Waste’, a paper delivered at the IBA Regional Conference on Environment held in Cape Town, South Africa in November 2018.

[4]Regulation 2, Nigerian Communications Industry Draft E-waste Regulations 2018.

[5]Regulation 10, Nigerian Communications Industry Draft E-waste Regulations 2018.

[6]Standards published by the Commission pursuant to the NCC Act and these Regulations, which shall be the applicable technical standards and specifications for identified equipment types, including the initial standards set out in the schedule to the Guidelines. Such equipment that has been certified to be safe and promote interpretability between communications networks.

[7]Regulation 3(1), Nigerian Communications Industry Draft E-waste Regulations 2018.

[8]Regulation 4, Nigerian Communications Industry Draft E-waste Regulations 2018.

[9]Regulation 5, Nigerian Communications Industry Draft E-waste Regulations 2018.

[10]Regulation 6, Nigerian Communications Industry Draft E-waste Regulations 2018.

[11]Regulation 7, Nigerian Communications Industry Draft E-waste Regulations 2018.

[12]Regulation 9, Nigerian Communications Industry Draft E-waste Regulations 2018.

[13]Regulation 8, Nigerian Communications Industry Draft E-waste Regulations 2018.

[14]The conflict is laid to rest from the onset as the Regulation 1 of the NCC Draft Regulation is made without prejudice to this Regulation.

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