In February 2020, the Ministry of Environment, Forest and Climate Change (“MoEFCC”) had issued Draft Battery Waste Management Rules, 2020 for public consultation. Subsequently, on 24th August 2022, the MoEFCC notified the Battery Waste Management Rules, 2022 (“BWM Rules”). The BWM Rules supersede the Batteries (Management and Handling) Rules, 2001 that dealt with the management of lead acid batteries.
Pertinently, the BWM Rules apply to Producer, dealer, consumers of “all types of batteries regardless of chemistry, shape, volume, weight, material composition and use” and “entities involved in collection, segregation, transportation, re-furbishment and recycling of Waste Battery”.
Salient features of the BWM Rules:
- Battery: As per the BWM Rules, a battery is a new or refurbished cell and/or Battery and/or their component, including accumulator, which is any source of electrical energy generated by direct conversion of chemical energy and includes disposable primary and/or secondary battery.
- Battery Pack: This refers to any set or module of cells and/or Battery that are connected or encapsulated within an outer casing so as to form a complete unit that the end-user is not intended to split up or open.
- End of Life (“EOL”) Battery: An EOL Battery is one which has been used, completed its intended use and is not meant for refurbishment
- Portable Battery: As per the BWM Rules, a Battery that is sealed, less than five kilograms, not made for industrial purposes, electric vehicle or to be used as an Automotive Battery is a Portable Battery.
- Producer: For the purpose of the BWM Rules, a Producer is an entity that engages in (i) manufacture and sale of Battery including refurbished Battery, including in equipment, under its own brand; or (ii) sale of Battery including refurbished Battery, including in equipment, under its own brand produced by other manufacturers or suppliers; or (iii) import of Battery as well as equipment containing Battery.
- Refurbishment: The BWM Rules acknowledge the provision of refurbishing batteries. As per the rules, refurbishment refers to repairing, re-conditioning, re-purposing of used Battery for its second life.
- Waste Battery: The definition of a Waste Battery includes (i) used and/or EOL Battery and/or its components or spares or parts or consumables which may or may not be hazardous in nature; (ii) pre-consumer Off-Spec Battery and its components or spares or parts or consumables; (iii) Battery whose date for appropriate use has expired; or (iv) Battery which has been discarded by a user.
Other than the definitions noted above, the BWM Rules also define an automotive battery, electric vehicle battery, industrial battery, and state that words and expressions that have not been defined under these rules shall carry the same meaning as provided under the Environment (Protection) Act, 1986.
Centralised Online Portal and Committee for Implementation
Responsibility of Producers, consumers, recyclers, and refurbishes
- Producer: A Producer would have Extended Producer Responsibility (“EPR”) obligations for a Battery introduced by it in the market to ensure that the recycling or refurbishing obligations are met and ensure that Waste Batteries are being sent for recycling or refurbishing and not for landfilling or incineration. A Producer is also required to file annual returns, by 30th June of the next financial year, with the CPCB and the concerned SPCB regarding the waste batteries collected and recycled/refurbished as part of its EPR obligations. An option of engaging itself or authorising another entity for collection, recycling or refurbishment of waste batteries has been provided to the Producer. In the event another entity is engaged, the EPR obligations would remain with the Producer. Further, an EPR plan is to be submitted every year by a Producer containing information on quantity, weight of battery as well as the dry weight of the battery materials), for the battery manufactured in the preceding financial year to the CPCB.
- Consumer: Interestingly, the BWM Rules stipulate certain responsibilities of consumers. These include the responsibility of discarding Waste Battery separately from other waste streams, such as mixed and domestic waste streams, and ensuring that the Waste Battery are disposed off in an environment friendly manner.
- Refurbisher and Recycler: As per the BWM Rules, both Refurbisher and Recycler, as the case may be, are under an obligation to ensure that the Waste Battery is removed from collected appliance if a Battery is incorporated in an equipment and adhere to the respective rules and regulations pertaining to management of hazardous waste, waste generated during handling and refurbishing/recycling activities alongside general compliance with the standards and guidelines prescribed by the CPCB regarding Waste Battery.
Targets for EPR
Violation and imposition of Environmental Compensation (“EC”)
The BWM Rules stipulate that a Producer needs to register with the Central Pollution Control Board (“CPCB”) by filing a form (also provided in the BWM Rules) through an online portal that the CPCB will be setting up. Similarly, Refurbishers as well as Recyclers are required to register themselves with the State Pollution Control Board (“SPCB”).
As for Producers, a registration will be valid for a period of five years and can be renewed by making a submission through a prescribed form before completion of sixty days of the expiry of the registration.
The CPCB has been entrusted with the task of establishing an online portal for registration and filing returns, in order to reflect the material balance of waste battery as well as the details regarding audit of the Producers and other entities involved in the process. This web portal will act as a single point data repository for orders and guidelines pertaining to implementation of the BWM Rules.
A Committee, comprising of representatives from various ministries, organisations such as the CPCB as well as stakeholders, will be constituted to recommend measures to MoEFCC for effective implementation of the BWM Rules and to guide and supervise development and operation of the online portal as well as undertaking any modifications in the forms attached to the BWM Rules
The CPCB has been empowered to verify compliance by a Producer through inspection and periodic audit. In case of violation of the rules, the CPCB can suspend and/or cancel registration of a Producer and/or impose Environmental Compensation (“EC”). An appeal against orders requiring such suspension/cancellation can be made with the MoEFCC which shall dispose off the appeal within forty-five days after the submission of the appeal.
Similarly, the SPCB has been entrusted with the task of ensuring compliance by a Refurbisher/Recycler by conducting inspections and periodic audit. In the event an entity provides false information, then the SPCB will have the power to suspend and/or cancel registration of such an entity for a period up to five years after providing a reasonable opportunity of being heard.
Labelling requirements for Battery and Battery Packs have been provided in Schedule I of the BWM Rules and place labelling obligations on the Producer. As per Schedule I, a Producer must ensure that all Battery or Battery Packs are appropriately marked and labelled as per the standards prescribed by the Bureau of Indian Standards. The BWM Rules also require that all labels and symbols are visible, legible and indelible and prohibit any Battery or Battery Pack being placed on the market unless marked with the “crossed out wheeled bin symbol” and heavy metal symbols (for batteries containing mercury, cadmium or lead) in the dimensions specified under the BWM Rules.
As mentioned above, the Producers are required to meet their EPR targets and obligations. EPR targets for Producers are mentioned in Schedule II of the BWM Rules and stipulate that Producers are required to meet their EPR obligations through the EPR certificate made available by Recycler or Refurbisher. In case of non-availability of EPR certificates with Recyclers/Refurbishers, the Producer shall have the responsibility of collection. Further, collection of 100% Waste Battery and of 100% of refurbishment or recycling would be mandatory by end of ten-year compliance cycle (end of 10th year) against the Battery placed in the market during the ten-year compliance cycle. As regards Portable Battery, EPR targets have been provided on a year wise basis.
Under the BWM Rules, a rule has been inserted to impose EC based on a ‘polluter pays principle’ and to also align the implementation of such EC regime outlined under the EPR Guidelines. Under the BWM Rules, EC may be levied for, inter alia, non-registration, providing false information/willful concealment of material facts by registered entities, submission of forged/manipulated documents by registered entities. Further, non-fulfilment of obligations set out under the BWM Rules will attract penal action under Section 15 of the Environment (Protection) Act, 1986 i.e. imprisonment for a term which may extend to five years with fine which may extend to one lakh rupees, or both.
The BWM Rules appear to have been introduced in furtherance of the Government of India’s initiative of promoting circular economy and to provide a streamlined process for safe disposal of battery wastes by stipulating comprehensive responsibilities for all the entities involved in the manufacture, production and ultimate disposal by an end consumer of all kinds of batteries.
However, from a compliance perspective, the BWM Rules may have potential overlaps with the provisions and obligations under the E-Waste (Management) Rules, 2016 thereby leading to repetition of compliance and reporting requirements by PIBOs (Producers, Importers and Brand Owners) and therefore impairing the ease of doing business in India. For instance, it is unclear how targeted Waste Battery collection of batteries that are embedded within consumer electronic goods will be differentiated from the targeted E-waste collection of the consumer electronic goods itself. Additionally, the wheelie bin labelling requirement is already covered under the E-Waste (Management) Rules, 2016.
Given the above, the relevant industry members and the MoEFCC should preferably co-ordinate to come out with necessary clarifications to the BWM Rules to address potential compliance overlaps.