In January 2022, the Ministry of Environment, Forest and Climate Change (“MoEFCC”) had issued Draft Plastic Waste Management Rules, 2022 for public consultation which proposed amendments to the Plastic Waste Management Rules, 2016 (“PWM Rules, 2016”). Subsequently, on 6th July 2022, the MoEFCC notified the Plastic Waste Management (Second Amendment) Rules, 2022 (“Amendment Rules, 2022”) which appear to have been notified with the purpose of aligning with the Guidelines on Extended Producer Responsibility on Plastic Packaging (“EPR Guidelines”) which were issued earlier in February 2022. Issuance of the Amendment Rules, 2022 is the first development since the ban on identified types of single use plastics, which came into effect from 1st July 2022.
Salient features of the Amendment Rules, 2022:
- Key Definitions
- Biodegradable Plastics: The Amendment Rules, 2022 have introduced a definition for biodegradable plastics to mean plastics, other than compostable plastics, which undergo degradation by biological processes under ambient environment (terrestrial or in water) conditions, without leaving any micro plastics, or visible, or distinguishable or toxic residue, which has adverse environment impacts, adhering to laid down standards of Bureau of Indian Standards and certified by the Central Pollution Control Board (“CPCB”).
- End of Life Disposal (“EOL Disposal”): As per the newly added definition, EOL Disposal refers to the use of plastic waste for generating energy (subject to relevant guidelines in force), which includes co-processing, except in cases where feedstock chemicals are produced for further use in the production of plastic which may then be considered under recycling or for road construction as per Indian Road Congress guidelines etc.
- Importer: The definition of an Importer has been broadened to mean ‘a person who imports plastic packaging or products with plastic packaging or carry bags or multi-layered packaging (“MLP”) or plastic sheets or like’. Under the PWM Rules, 2016, an Importer was a person who imports or intends to import and holds an Importer-Exporter Code number, unless otherwise exempted which in effect referred to imported of plastic material and not importers of ‘products with plastic packaging’ which is the current expanded scope.
- Plastic Packaging: The definition of MLP has been amended to add “Plastic Packaging” which means “packaging material made by using plastics for protecting, preserving, storing, and transporting of products in a variety of ways”.
- Plastic Waste Processors (“PWP”): As per the Amendment Rules, 2022, PWPs are recyclers of plastic waste, including entities, engaged in using plastic waste for energy (waste to energy), which would include coprocessing or converting plastic waste to oil (waste to oil) (except in cases where feedstock chemicals) are produced for further use in the production of plastic which may then be considered under recycling, industrial composting.
- Pre-consumer and Post-consumer plastic packaging waste: Two stages of consumer plastic packaging waste have been introduced. As per the PWM Amendment Rules, 2022, pre-consumer plastic packaging waste means “plastic packaging waste generated in the form of reject or discard at the stage of manufacturing of plastic packaging and plastic packaging waste generated during the packaging of product including reject, discard, before the plastic packaging reaches the end-use consumer of the product” and post-consumer plastic packaging waste means “plastic packaging waste generated by the end use consumer after the intended use of packaging is completed and is no longer being used for its intended purpose”.
- Waste to Energy: Use of plastic waste for generation of energy and includes co-processing.
- Amendments to ‘Conditions’ under the PWM Rules, 2016
Among the conditions prescribed under Rule 4 of the PWM Rules, 2016 (for manufacture, import, distribution, sale and use of plastic material), it is worth noting that prior to the Amendment Rules, 2022, Producers, Importers, and Brand Owners (“PIBO”) had the liberty to self-determine whether they would fall under the minimum thickness requirements relating inter alia to ‘plastic sheet or like, which is not an integral part of multilayered packaging and cover made of plastic sheet used for packaging, wrapping the commodity’ except where such thickness may impair the functionality of the product. However, the Amendment Rules, 2022 specifies that the only exception to the minimum thickness requirement will be cases that are “as specified by the Government” where the plastic sheet may impair the functionality of the product. Therefore, the amendment expands the application of this requirement to all categories of plastic material as referred to in this condition unless specifically identified and exempted by the Government, and also does away with the PIBOs’ ability to self-assess applicability of the minimum thickness requirement.
- Responsibility of Producers, Importers, and Brand Owners
The Amendment Rules, 2022 have done away with the requirement of working out modalities for waste collection based on EPR and simply require PIBOs to fulfil EPR for Plastic Packaging as per the guidelines specified in Schedule II of the EPR Guidelines. Further, the Amendment Rules, 2022 have also done away with the requirement of submitting the plan of collection to the State Pollution Control Boards (“SPCB”) while applying for Consent to establish or operate or renewal.
- Protocols for compostable plastic materials
The provision for protocols for compostable plastic material has been substituted to include biodegradable plastic materials. As per the amended rule, protocols of the Indian Standards listed in Schedule I should be followed for determination of the degree of degradability and degree of disintegration of plastic material. Biodegradable plastics shall conform to the standard notified by the BIS and certified by CPCB and compostable plastic materials shall conform to the IS/ISO 17088:2021, as amended from time to time. Until the notification of a designated standard, biodegradable plastics should conform to tentative IS 17899 T:2022.
- Marking or Labelling
- The name, registration number of the producer or brand owner and thickness in case of carry bag and plastic packaging must be stated on each plastic carry bag, plastic packaging and MLP. However, this provision will not be applicable for plastic packaging used for imported goods, or cases falling under Rule 26 (Exemption in respect of certain packages) of the Legal Metrology Packaged Commodities Rules, 2011, after the approval of the CPCB, or cases where it is technically not feasible to print the requisite information mandated under this Rule as per specifications given in the Guidelines for use of Standard Mark and labelling requirements under BIS Compulsory Registration Scheme for Electronic and IT Products, after the approval of the CPCB.
- In case of MLP, with effect from 1st January 2023, the name and registration number of the producer or brand owner (instead of the manufacturer) would be required to be mentioned
- Further, an importer/producer/brand owner of imported carry bags or MLP or plastic packaging, either alone or along with the product will be required to adhere to the above-mentioned requirements.
- Registration of producer, recyclers and manufacturer
The Amendment Rules, 2022 clarify that, in the event an entity is operating in one or two States or Union Territories, then such entity would be required to obtain registration from the concerned SPCB or Pollution Control Committee of the concerned Union Territory. However, if an entity is operating in more than two States or Union Territories , then it will be required to obtain registration from the CPCB. Registration/renewal applications must be made by PIBOs in accordance with Schedule II of the EPR Guidelines.
- Environmental Compensation
Under the Amendment Rules, 2022, a new rule has been inserted to impose environmental compensation based on a ‘polluter pays principle’ and to also align the implementation of such Environmental Compensation regime with the specific guidelines relating to the same as outlined under Clause 9 of the EPR Guidelines.
The Amendment Rules, 2022 bring in positive introductions such as ‘biodegradable plastics’, ‘environmental compensation’, etc. and also appear to harmonize and supplement the EPR Guidelines. However, from a compliance perspective, the Amendment Rules, 2022 when read together with the EPR Guidelines, may lead to potential onerous compliance requirements thereby affecting ease of doing business. Requirements relating to separate registration obligations for PIBOs, calculation of EPR targets through complex methodologies, potential ambiguities relating to thickness requirements as well as labelling requirements, etc. may pose to be potential issues hindering the aspiration of the Indian Government to have an easy and streamlined compliance framework in India thereby enabling ease of doing business. It would be especially cumbersome, from a compliance and multiplicity of reporting requirements perspective, for entities which may fall under more than one role classification i.e. may be a producer as well as a brand owner and/or an importer. Such an overlap is likely to happen with the widened definition of the term importer, thereby impacting a high percentage of stakeholders.
While the intention behind introducing the Amendment Rules, 2022 is vested in environmental interest, the MoEFCC will have to take steps to ensure that the Amendment Rules, 2022 align with the EPR Guidelines as well as the extant environment laws in India for effective execution and ease of compliance.
Link to the Plastic Waste Management (Second Amendment) Rules, 2022: https://moef.gov.in/wp-content/uploads/2022/07/Plastic-Waste-Management-Second-Amendment-Rules-2022.pdf
Link to the Plastic Waste Management Rules, 2016: http://www.mppcb.nic.in/proc/Plastic%20Waste%20Management%20Rules,%202016%20English.pdf