Need to address to certain anomalies in the Plastic Waste Management Rules 2016 as amended

Need to address to certain anomalies in the Plastic Waste Management Rules 2016 as amended

As updated 13 April, 2021

The Ministry of Environment, Forest and Climate Change notified the Plastic Waste Management Rules of 2016 the implementation of which has very recently, gained some momentum, specially, the provisions related to Extended Producer Responsibility.

I have had opportunity to go through the rules and feel that certain provisions may need to be clarified and understood better in order to achieve a more robust compliance to provisions. I am taking the liberty of underlining these issues, in the hope that Your Honour would like to get the same examined and take necessary action in public interest.

1. The terms ‘Brand Owner’, ‘Producer’, ‘Importer and ‘Extended Producers Responsibility’ have been defined. Extended Producers responsibility has been defined as “means the responsibility of a producer for the environmentally sound management of the product until the end of its life.” The responsibilities of the Brand Owner and Importer have been missed out in this definition and may also need to be established.
2. Rule 9(1) states that “The producers, within a period of six months from the date of publication of these rules, shall work out modalities for waste collection system based on Extended Producers Responsibility and involving State Urban Development department, either individually or through their own distribution channel or through the local body concerned.” This misses the applicability of this rule to Brand Owners and Importers. I would feel that the provisions of rule 9(1) could be extended to add brand owners and importers also.
3. Rule 9(4) Specifies that “The producer within a period of 03 months from the date of final publication of these rules in the official Gazette shall apply to the Pollution Control Board or the Pollution Control Committee, as the case may be, of the States or the Union Territories administration concerned, for grant of registration.” This provision of registration under rule 9(4) may also be made applicable to brand owners and importers. Currently Rule 9(4) does not have any such provision.
4. The basic provisions of Rule 13 as spelt out in 13 (1) appear to be that “No person shall manufacture carry bags or recycle plastic bags or multi layered packaging unless that person has obtained a registration from the State Pollution Control Board or the Pollution Control Committee of the Union Territory concerned, as the case may be, prior to the Commencement of production”. The subsequent provisions from 13 (2) to 13 (11) seem to lay down the modalities of the application and its disposal.

This provisions of registration under rule 13 therefore appear to be applicable on manufacturers and such producers who are engaged in the manufacture or import of carry bags. The proviso does not appear to be applicable on ‘Producers’ using plastic sheets or like or covers made of plastic sheets or multi layered packaging for packaging or wrapping the commodity for which a registration under rule 9 is already provided for. Duplicity of seeking a registration both under rule 9 and rule 13 for the same activity is not the intent nor appears to have been provided for. The issue for consideration here is that registration under rule 9 has to be obtained by producers from the State Pollution Control Boards as applicable, and the Pollution Control Committees in case of U.T.’s whereas a registration under Rule 13(2) has to be obtained by Producers and Brand owners, from the Central Pollution Control Board or the State Pollution Control Board as applicable under the amended Plastic Waste Management Rules of 2018. This is indicating a double registration of a producer. The anomaly may need to be clarified because under the present understanding of the provisions a ‘Producer’ engaged in ‘only packaging of commodity’ will have to register with the State Board or Committee under rule 9 and also with the CPCB under Rule 13 if operating in two or more States.

The application under Form-1 appears to be an application for registration under Rule 9 but with reference to rule 13(2). It is not meant to be an application for registration under Rule 13 (1) or 13(2). This also needs to be explained better.

These anomalies may need to be examined and removed but in the interim period guidelines may need to evolve on the:

1. Inclusion of Brand Owners and Importers in the definition of Extended Producer Responsibility in the rules.
2. The applicability of Rule 9(1) to Brand owners and importers also.
3. The applicability of provisions of registration under Rule 9(4) to Brand owners and importers.
4. The applicability of provisions of registration under Rule 13 to such producers who are not engaged in the manufacture or import of carry bags.
5. The applicability of provisions of registration under Section 13 (2) on such producers or Brand owners who are using Plastic (as defined) for packaging only.
6. Registration of ‘Producers’, Brand Owners and Importers engaged in using plastics for packaging under Rule 9 or Rule 13 or both, the agency to grant such registration and the modality.
7. Applicability of Form 1 as an application for registration under Rules 9 or Rule 13.

An understanding of the above issues would help in removing the difficulties faced by industry and also step-up compliance.

First Update 13 April, 2021

With reference to observations on the Plastic Waste Management Rules 2016 as above, a need was expressed for necessary clarifications and amendments. Further,

1. The MoEF and CC has recently come up with a draft notification no. GSR 169(E), dated 11-03-2021 on proposed amendments to the said rules. This amendment is centered round introducing a regulation of ‘Single use plastics’ but it is felt that the aforesaid suggestions need to be examined and included in the amendment.
2. The CPCB has come up with a new set of Standard Operating Procedures for Registration of Producers, Importers and Brand Owners under the Plastic Waste Management Rules in March 2021. The situation appears to be still anomalous, especially with regards to registrations under rule 9 and rule 13 of the PWM Rules 2016 and may need the attention of the Ministry and the CPCB.
3. The CPCB is working on the surmise that PIBO’s( Producers, Importers and Brand Owners) who are operating in more than two states, are required to obtain registration from CPCB and those operating in one or two states must obtain registration from the concerned SPCB/PCC. EPR Action plan must be submitted for the registration. This is on the authority granted to the CPCB through an amendment in the Plastic Waste Management Rules 2016 made in 2018 and which states that, “in the said rules, in rule 13, for the sub rule (2) the following sub rule shall be substituted, namely.

“Every producer or brand owner shall, for the propose of registration or renewal of registration make an application in Form 1 to –

1. The concerned State Pollution Control Board or Pollution Control Committee of the Union Territory, if operating in one or two states or Union Territories or
2. The Central Pollution Control Board, if Operating in more than two states or Union Territories.”

The anomaly originates from the basic fact that Form 1 (as mentioned in the amendment) is an application for registration under Rule 9 which provides for grant of registration by the State Pollution Control Board/ Committee. This has not been amended by the notification of 2018 andhence the applicability of rule 13 for Form 1 needs to be understood better and implemented accordingly. Unfortunately, the provisions of the Plastic Waste Management rules 2016 as quoted in the SOP for granting registration to PIBO’s as published by the CPCB do not make any mention of the provisions of registration to PIBO’s engaged in using plastics in packaging as spelt out in Rule 9(4) of the PWM rules 2016. In fact, the SOP talks of only one registration while the rules provide for registrations under rules 9 and 13 and authorize the CPCB only with regards to rule 13 as above.

Sure that the Ministry and CPCB will look into the matter.

Also See:

-Need to address to certain anomalies in the Plastic Waste Management Rules 2016 as amended

–Central Pollution Control Board, India defers the process of registration of Producers, Importers and Brand Owners under the PWM Rules