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MoEFCC publishes Draft E-Waste (Management) Rules for public consultation

MoEFCC publishes Draft E-Waste (Management) Rules for public consultation
Trade & Regulatory Compliance Practice | Kainat Singh

The Ministry of Environment, Forest and Climate Change ("MoEFCC") published the Draft E-Waste (Management) Rules ("Draft Rules") for public consultation. The Draft Rules will be taken into consideration by the Central Government on/after 18th July, 2022, and if notified, shall supersede the E- Waste (Management) Rules, 2016 ("2016 Rules").

Applicability: The Draft Rules are applicable to every manufacturer and producer of electrical and electronic equipment, refurbisher and recycler involved in manufacture, sale, transfer, purchase, and processing of e-waste or electrical and electronic equipment listed in Schedule I of the Draft Rules.

  • Registration: Under the Extended Producer Responsibility ("EPR") framework of the Draft Rules, Manufacturers and Producers, among others, are required to mandatorily register on the centralised portal created by the Central Pollution Control Board ("CPCB"). An entity that is both the Manufacturer as well the Producer is required to register under the two categories separately. In case, any registered entity furnishes false information/wilfully conceals information/in case of any irregularity, the registration of such entity may be revoked by CPCB for a period up to three-years after giving an opportunity to be heard.
  • Producer responsibilities: A Producer of electrical and electronic equipment (listed in Schedule I of the Draft Rules) is required to register itself on the CPCB centralised portal. It shall obtain and implement EPR target as per Schedule III through the CPCB online portal. The Producer is also required to file annual and quarterly returns on the CPCB portal (the 2016 Rules only mandated filing of annual returns with the CPCB/SPCB). The EPR obligations for each product will be decided on the basis of the information provided by Producers on the online portal and the individuals product’s life period.
  • EPR Targets: Producers are required to fulfil EPR obligations as per Schedule III of the Draft Rules which appear to be consistent with the figures in the existing regulations:
    • For 2022-23, the E-Waste Recycling Target shall be 60% of the quantity of waste generation as indicated in EPR Plan
    • For 2023-2024, the E-Waste Recycling Target shall be 70% of the quantity of waste generation as indicated in EPR Plan
    • 2024-2025 onwards, the E-Waste Recycling Target shall be 80% of the quantity of waste generation as indicated in EPR Plan
  • EPR Certificates: EPR certificates may be purchased by Producers from registered Refurbishers. On production of the refurbishing certificates purchased from the registered Refurbishers, the EPR obligation of the Producers would be deferred by the duration as prescribed by the CPCB for the corresponding quantity of e-waste.
  • Recyclability of End Product and Compatibility of Components/Parts: Two new requirements have been inserted as an attempt to reduce the use of hazardous substances in the manufacture of electronic equipment and their components –
    • Obligation has been placed on Manufacturers to use technology/methods to make the end product recyclable as far as possible; and
    • Ensure that component(s)/part(s) made by different Manufacturers are compatible with each other "as far as possible" so as to reduce the quantity of e-waste.
  • Environment Compensation ("EC"): Under the Draft Rules, EC shall be levied for violation of any of the provision of the Draft Rules and subsequent guidelines issued by the CPCB. The unfulfilled EPR obligation for a particular year will be carried forward to the next year and so on and up to 3 years. Payment of EC shall not absolve the Producers of the EPR obligation set out in these regulations.
  • Prosecution: Entities may be prosecuted, for EPR certificate related or audit related requirements, under Section 15 of the Environment (Protection) Act, 1986 ("EPA") (which deals with the contravention of the Rules made under the EPA). This prosecution will be in addition to the EC levied under this regulation.
  • Verification and Audit: CPCB by itself or through a designated agency shall verify compliance of the Draft Rules through random inspection and periodic audit.
  • Steering Committee: A Steering Committee ("Committee") shall be created under the Chairman, CPCB to oversee the overall implementation, monitoring and supervision of the Draft Rules. The Committee shall include representatives from the following organisations and sectors:
    • Representatives from MoEFCC
    • Representatives from MoEFCC
    • Representatives of Electrical and Electronic Equipment Producers and Manufacturer Association
    • Representatives of Electrical and Electronic Equipment Producers and Manufacturer Association
    • Representatives of SPCB/PCC as co-opted by the chairman of the Steering Committee
    • Head of the Concerned Division of CPCB - Member Convener

    The Committee will decide upon the disputes arisen from time to time and on representations received, refer substantial issues to the MoEFCC pertaining to the Draft Rules, review and revision of guidelines/EPR targets/addition of Equipment under Schedule 1 of the Draft Rules and will have to power to approve other processes and requirements prescribed under the Draft Rules.

Our Take:

The applicability under the Draft Rules largely focuses on relevant entities playing a key role in dealing with e-waste. From a compliance standpoint, stakeholders would have to ensure that they are filing both annual and quarterly returns under the revised responsibilities on the CPCB portal.

Furthermore, stakeholders would also have to ensure that they are not engaged with any unregistered Manufacturer, Producer, Recycler, and Refurbisher. For these purposes, they may consider adding terms to contracts with such entities to ensure compliance with registration requirements on the end of the entities as well.

Additionally, the requirement under the Draft Rules for Manufacturers to ensure that component(s)/part(s) made by different Manufacturers are compatible with each other as far as possible seems to be an overreach and practically difficult to comply with. It is unlikely that compatibility and interoperability can be ensured in the absence of legislative standards set out by the Government and contractual agreements with other manufacturers where such compatibility can be uniformly tested.

It is worth noting that as a penalty under the Draft Rules, registration may be revoked "in case of any irregularity". Such a penalty is excessive and should be reconsidered by the Ministry with inputs from the Committee.

The creation of the Steering Committee is definitely an attempt at ensuring greater representation while formulating guidelines and standards. In that regard, representation by the Electrical and Electronic Equipment Producers and Manufacturer Association will be helpful in communicating and representing the interests of Industry players.

Link to the Draft Rules - https://moef.gov.in/wp-content/uploads/2022/05/Draft-E-Waste-Management-Rule.pdf

Link to the 2016 Rules - https://cpcb.nic.in/displaypdf.php?id=RS1XYXN0ZS9FLVdhc3RlTV9SdWxlc18yMDE2LnBkZg==

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Ameet Datta - Partner (Practice Lead) | ameet@saikrishnaassociates.com

Suvarna Mandal - Partner | suvarna@saikrishnaassociates.com

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