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MOEFCC notifies E-Waste (Management) Rules, 2022

On 2nd November 2022, the Ministry of Environment, Forest and Climate Change (“MoEFCC”) notified the E-Waste (Management) Rules, 2022 (“New Rules”) in furtherance of the Draft E-Waste (Management) Rules published in May 2022 for public consultation. The New Rules supersede the E-Waste (Management) Rules, 2016 (“2016 Rules”) and the E- Waste (Management) Amendment Rules, 2018 (“2018 Rules”) (collectively referred to as “erstwhile Rules”) and will come into force from 1st April 2023.

Salient Features:

Application: The New Rules apply to the following entities that are involved in the manufacture, sale, transfer, purchase, refurbishing, dismantling, recycling and processing of e-waste or electrical and electronic equipment (“EEE”):
- Manufacturers
- Producers
- Refurbishers
- Dismantlers and recyclers
The scope of application under the New Rules has been reduced in comparison to the 2016 Rules that were also applicable to:
- consumers
- bulk consumers (which as per the New Rules are required to ensure that e-waste generated by them is handed over to the registered producer/refurbisher/recycler)
- collection centres (which as per the New Rules are considered to be a third party that may be engaged by a producer for fulfilling Extended Producer Responsibility related obligations)
- dealers (subsumed under the definition of a producer under the New Rules or may be third party engaged by the producer)
- e-retailers (subsumed under the definition of a producer under the New Rules).
Exclusions: The New Rules will not apply to waste batteries, packaging plastics, micro enterprises, and radio-active wastes, all of which are specifically governed under other legislations.
Important Definitions: The following definitions have been added/amended under the New Rules:
- The term ‘Business’ has been introduced and means the manufacturing, production, assembling and import of electrical and electronic equipment as listed in Schedule I and refurbishing, recycling, disposal and treatment of e-waste;
- The term Extended Producer Responsibility or ‘EPR’ has been redefined to specifically mean “responsibility of any producer of electrical or electronic equipment as given in Schedule-I for meeting recycling targets as per Schedule-III and Schedule-IV, only through registered recyclers of e-waste to ensure environmentally sound management of such waste;”.
- The term ‘Producer’ has been widened in scope and means any person or entity who, –
- The term ‘Target’ has been limited in scope to mean the quantity of e-waste to be recycled through a registered Recycler by the producer in fulfilment of EPR.
- The term ‘Manufacturer’, though largely unchanged as under the erstwhile Rules, has been limited to entities manufacturing EEE in Schedule I.
Registration of relevant entities on Central Pollution Control Board (“CPCB”) Portal: Unregistered entities are prohibited from carrying out any business under the New Rules, and in furtherance of the same registered entities are barred from engaging with other players that have not obtained the requisite registration. Accordingly, entities shall register on the CPCB portal (i.e. https://eprewastecpcb.in/) in any of the following categories namely:
- Manufacturer;
- Producer;
- Refurbisher; or
- Recycler.
For entities falling under more than one of the aforementioned categories, a registration under the relevant categories will have to be obtained separately. Further, an entity’s registration may be revoked by the CPCB in case of inter alia any irregularity for a period up to three-years in addition to the levying of Environmental Compensation or ‘EC’.
Responsibilities of Manufacturers: The following responsibilities have to be fulfilled by a Manufacturer (in addition to the registration requirement):
- collection of e-waste generated during the manufacture of any electrical and electronic equipment and ensure its recycling or disposal;
- file annual and quarterly returns in the laid down form on the portal on or before end of the month succeeding the quarter or year, as the case may be, to which the return relates.
Responsibilities of Producers: In comparison with the erstwhile Rules, it appears that the responsibilities of a producer have been significantly simplified. In addition to the registration requirement and annual/quarterly report filing requirement noted above, producers will be responsible for obtaining and implementing the EPR obligations and corresponding targets as well as creating awareness pertaining to the same.
EPR Regime and EPR Targets: Under the EPR regime, producers are required to fulfil their EPR through online purchase of EPR certificates from registered Recyclers only which they’re further required to submit online while filing quarterly return. The following EPR targets have been provided under Schedule III of the New Rules:
(where Year Y = Current Year; Year X = Average life of the product)
- 2023 -2024 – 60% of the quantity of an EEE placed in the market in year Y-X, where ‘X’ is the average life of that product
- 2024 -2025 – 60% of the quantity of an EEE placed in the market in year Y-X, where ‘X’ is the average life of that product
- 2025 -2026 – 70% of the quantity of an EEE placed in the market in year Y-X, where ‘X’ is the average life of that product
- 2026-2027 – 70% of the quantity of an EEE placed in the market in year Y-X, where ‘X’ is the average life of that product
- 2027-2028 – 80% of the quantity of an EEE placed in the market in year Y-X, where ‘X’ is the average life of that product
- 2028-2029 onwards – 80% of the quantity of an EEE placed in the market in year Y-X, where ‘X’ is the average life of that product
At present the New Rules do not prescribe what ‘X’ would be for various product categories.
Generation and Transaction of EPR Certificates:
- Under the New Rules, producers will have to ensure that they purchase EPR certificates from registered recyclers/refurbishers (as the case may be), that shall be valid for a period of two years from the end of the financial year in which they were generated.
- The quantity eligible for generation of extended producer responsibility certificate shall be calculated by the following formula namely:
  QEPR = Qp x Cf
  
  where QEPR is the quantity eligible for generation of the certificate, Qp is the quantity of the end product and Cf is the conversion factor (quantity of inputs required for production of one unit of output)
- Additionally, the New Rules specify that EPR certificates may be purchased on a quarterly basis, limited to the EPR liability of the current year plus leftover liability of preceding years plus five percent of current year liability. The details of such EPR transactions will have to be filed as a part of the relevant entity’s quarterly returns.
Onus on Manufacturers to Reduce use of Hazardous Substances: Similar to the erstwhile Rules the New Rules require that producers do not utilise specific materials that are prohibited (such as lead, mercury etc.) in their components/consumables/parts/spares. Only equipment compliant with this requirement shall be permitted to be imported or placed on the market. However, a significant deviation in the New Rules is the introduction of unmoderated obligations on manufacturers to ensure that they use technology/methods to make the end product recyclable, and, also to ensure that components/parts made by different manufacturers are compatible with each other so as to reduce the quantity of e-waste.
Introduction of Environmental Compensation (“EC”) Regime: The New Rules introduce an EC regime that did not previously exist under the erstwhile Rules. EC may be levied on unregistered entities as well as any entities that may aid or abet the violation of the New Rules. Three or more violations under the Rules can result in the permanent revocation of registration over and above the levying of EC. Unfulfilled EPR that will be subject to EC cannot be absolved however, it may be carried forward for up to 3 years for meeting shortfalls.
Prosecution: As per the New Rules, any person that:
- provides incorrect information required under the New Rules for obtaining EPR certificates,
- uses or causes to be used false or forged EPR certificates in any manner,
- wilfully violates the directions given under the New Rules, or
- fails to cooperate in the verification and audit proceedings,
will be prosecuted under Section 15 of the Environmental (Protection) Act, 1986 (“EPA”) (that lists the penalties, in the form of imprisonment and/or fine, for contravention of the provisions of the EPA and/or any Rules, Orders and Directions made thereunder) and such entities will also be liable to pay EC.
Verification and Audit power of the CPCB: Under the New Rules, the CPCB has the power to conduct random inspection and periodic audit of producers to verify compliance of the New Rules.
Steering Committee: The New Rules have introduced a Steering Committee which inter alia consists of members/representatives from various ministries as well as producer and manufacturer associations. This committee will be responsible for implementation of the New Rules and will also preside over disputes that may arise as well as representations received in this regard. Further, the Steering Committee can take steps as it may deem fit for the implementation of the New Rules.

Our Take:

The E-Waste (Management) Rules, 2022 have introduced several provisions that help with enabling the ease of doing business. Much needed provisions such as paper processes for registering entities and filing returns have been digitised onto an easy-to-access online portal, compliances for specific entities have been simplified and likely reduced, and there is increased representation in the Steering Committee for communicating point of views from different players in the industry at the time of formation of guidelines and policies under the New Rules.

However, the impact of these steps are greatly diminished due to onerous requirements such as separate registrations for entities that may fall under multiple categories. Similarly, the obligation placed on manufacturers for ensuring that components/parts made by different manufacturers are compatible with each other so as to reduce the quantity of e-waste, appears to be operationally challenging in the absence of Government mandates or standards governing the same. Such practical constraints, if not considered, can lead to imposition of EC and possible prosecution under the New Rules considering the usage of broad terms such as ‘aiding’ and ‘abetment’ in the relevant penalty provisions. Accordingly, from a compliance standpoint, it’ll be necessary for the industry to express its concerns to the Ministry highlighting such difficulties in implementing the requirements under the New Rules.