The Central Government released the draft regulations on the Extended Producers Responsibility (EPR) under the Plastic Waste Management (PWM) Rules 2016 as amended, on the 6th October 2021, for comments from the public within 60 days from the date of publishing. The draft document states that the new regulations have come in after extensive consultation with different stakeholders, but is completely silent on one of the largest stakeholders that include the informal waste pickers, waste collectors and the entire informal recycling value chain. While the regulations on paper appear to wield a magic wand in terms of solving the plastic waste problems, overall draft regulations are top down in approach, and do not take into consideration the ground realities of the recycling economy.
Missing Links & Exclusion of the Informal Sector
The glaring omission of the informal waste workers and the entire informal recycling value chain, is not just disconcerting but one fails to understand the thought process or rationale behind the draft regulations. Dharmesh Shah, Policy Analyst says, “The regulations can be termed as aspirational. The Solid Waste Management Rules 2016 and PWM Rules 2016, as amended, make significant commitments towards integration of the informal sector. However, the draft regulations, in an attempt to operationalise EPR fail to take into consideration that the entire informal recycling sector is currently holding up the recycling sector, and this cannot be wished away”.
Definition Ambiguity: Who is a recycler and who is a plastic waste processor?
There is clear ambiguity in the definition of recyclers and plastic waste processors. According to the draft regulation, recyclers are entities who are engaged in the process of recycling of plastic waste; and plastic waste processors means recyclers and entities engaged in using plastic for energy (waste to energy) and converting it to oil (waste to oil). The question then arises, what happens to those recyclers engaged in the business of washing, palletisation, grinding, bailing plastics?
|What’s in the new regulation?|
Applicability: The EPR regulations are applicable to both pre-consumer and post-consumer plastic packaging waste and places the responsibility on Producer, Importer and Brand Owner ( PIBO) for collection and recycling of plastic packaging waste.
By the expanded definition of brand owners to read trademark and now means a person or company who sells any commodity under a registered brand label/ trademark, the obligation of EPR, explicitly states that EPR is applicable to online platforms/marketplaces and supermarkets/retail chains other than those, which are micro and small enterprises as per the criteria of Ministry of Micro, Small and Medium Enterprises, Government of India, apart from the Food & Beverage, Personal Care, Household, Healthcare, and Other Sectors
Prioritising Waste Hierarchy: The EPR regulation prioritises waste hierarchy of reuse, recycling, use of recycled plastic content and then end of life disposal.
In the PWM Rules 2016, as amended defined ‘Waste Management’ as a means the collection, storage, transportation reduction, re-use, recovery, recycling, composting or disposal of plastic waste in an environmentally safe manner. And the draft EPR Regulation, breaks down the definition further by defining the terms, reuse and end of life disposal:
i) Reuse means using an object or resource material again for either the same purpose or another purpose without changing the object’s structure
ii) End of Life disposal means using plastic waste for generation of energy and includes co-processing (e.g. in cement kilns) or waste to oil or for road construction as per Indian Road Congress guidelines, etc. The regulations also state that only those plastics, which cannot be recycled such as multilayered multi-material plastics (at least one layer of plastic and at least one layer of other material), will be sent for end of life disposal such as road construction, waste to energy, waste to oil, cement kilns (for co processing) etc. as per relevant guidelines issued by Indian Road Congress/CPCB from time to time. The regulations also define ‘Waste to Energy’, as using plastic waste for generation of energy and includes co-processing (e.g. in cement kilns).iii) Recycled Plastic: The latest amendment as on 17th September 2021 of PWM ( Second Amendment) Rules 2021 in Rule 4, in sub rule ( 1), for clause (b), states ‘carry bags made of recycled plastic or products made of recycled plastic can be used for storing, carrying, dispensing, packaging ready to eat/drink food stuff subject to the notification of appropriate standards and regulation under the Food Safety and Standards Act, 2006 (34 of 2006) by the Food Safety and Standards Authority of India’. In this context the draft EPR regulations define Use of recycled plastic as recycled plastic, instead of virgin plastic, is used as raw material in the manufacturing process
Coverage: The EPR regulations, attempt to cover three categories of packaging –
Rigid Plastic Packaging (which includes PET, HDPE, PP etc);
Flexible plastic packaging of single layer or multilayer (more than one layer with different types of plastic), plastic sheets or like and covers made of plastic sheet, carry bags (including carry bags made of compostable plastics), plastic sachet or pouches and
Category III that is Multilayered plastic packaging (at least one layer of plastic and at least one layer of material other than plastic)
Targets: The EPR Targets for the PIBOs shall be determined category-wise and State/UT wise, with a clear year-wise target to ensure minimum level of recycling (excluding end of life disposal) of plastic packaging waste collected.The regulations further specify mandatory use of recycled plastic in plastic packaging based on three categories for producers, importers and brand owners, based on the percentage of plastic manufactured for the year, effectively from 2023- 24. Exemptions are granted by CPCB on a case-to-case basis if this obligation cannot be met due to statutory requirements.
Offsetting and EPR Certifications: Another important criteria in the regulations, is that any surplus in one category can only be used for offsetting, carry forward and sale in the same category. And any surplus under end of life disposal cannot be used for reuse or recycling off setting.
State Registration: The regulations clearly put the focus on the State Pollution Control Boards, to ensure that the PIBOs ( operating in two states) are also registered under the sub category of the states, apart from the national registration
Documentation: It is expected that PIBOS provide Action Plan containing information on the EPR Target, category-wise and state wise, where applicable, through the online centralized portal developed by CPCB PIBO must maintain transactions of plastic packaging material purchased from producers and/or importers separately, by category and quantity separately. In addition, the producers and importers are also to maintain a record of sale by category and quantity. And the online platform shall be used as a means to cross check the transactions It is also expected that PIBOs and waste processors file annual reports on the plastic packaging waste collected and processed towards fulfilling obligations under EPR with the concerned CPCB/SPCB/PCC as per proforma prescribed by CPCB by the 30 April of the next financial year. This includes Information on the reuse and/or recycled content used for packaging purposes.
Problems and Loopholes
According to Shibu Nair, India Coordinator at GAIA (Global Alliance for Incinerator Alternatives) “ The EPR framework is by the corporations and for the corporations. It does not recognize local self government of any forms in India and does not consider local geographies”
Promotion of Parallel Recycling Economy
The regulation states that PIBOs may develop separate waste collection and segregation infrastructure of plastic packaging as required, in order to fulfil their EPR obligations based on the category of plastics. This includes:
- Establishing waste plastic collection points and Material Recovery Facilities (MRFs), with a frequency that is proportional to the area covered and the volume.
- Collection of plastic, from the entities like ULB, gram panchayats, other public authorities or third parties carrying out waste management, and provide for the collection from all entities that have made use of that offer; provide for the necessary practical arrangements for collection and transport and sent to a registered facility for recycling or end of life disposal
- PIBOs can ensure that the network of collection points based on population size, expected volume of plastic /packaging waste, accessibility and vicinity to end-users, not being limited to areas where the collection and subsequent management is profitable.
As per the SWM Rules 2016, it is the duty and responsibility of the ULB to setup MRFs or secondary storage facilities with sufficient space for sorting of recyclable materials to enable informal or authorized waste pickers and waste collectors to separate recyclables from the waste and provide easy access to waste pickers and recyclers for collection of segregated recyclable waste such as paper, plastic, metal, glass, textile from the source of generation or from MRFs. The inherent flaw with the proposed regulation is failing to take into account, existing infrastructure set up of the ULBs, to collect dry waste and the informal recycling value chain’s operations, and the need for upgradation of informal infrastructure. The draft regulations cease to appreciate the complexities and provide guidelines to support the material flow supply chain. A case in point is the clause that states PIBOS and waste processors will not carry out any business without registration obtained through on-line centralized portal developed by CPCB and that the entities shall not deal with any entity not registered obtained through on-line centralized portal developed by CPCB and this in essence has the potential to render the entire informal collection illegal, which is counter to what is proposed in SWM Rules 2016 and PWM Rules 2016
According to Lubna Anantakrishnan, Project Manager at SWaCH Plus, “The draft regulations encourage new collection points and MRFs to be set up for channeling plastic waste. New, private waste streams will dispossess waste pickers of plastics, crumble the existing informal recycling economy, and destroy millions of livelihoods across the country.” In the urgency to allow for privatisation of the recycling sector, allows for a linear approach for transactions between PIBOs and registered processors with the rest of the informal chain, being invisibilized.
The section 14.3 that states the entities involved in waste collection will hand over the waste for treatment and recycling or for identified end uses and 14.4 that states voluntary collection points will hand over plastic packaging waste to the PIBOs or third party agencies acting on their behalf with a view to their treatment and recycling or their identified end use, is deeply concerning and calls for immediate recall, given that it doesn’t talk of a buy back mechanism, as it absolves the PIBOs from paying any money for collection.
Given that the regulations allow for the PIBOS to operate multiple modes of collection and schemes such as deposit refund system or buy back or any other model, to prevent mixing of plastic packaging waste with solid waste, the tracking mechanism is not clear. In the long run, this will create transparency problems as the Regulations routinely refer to a “centralized online portal” but do not provide relevant information like whether the portal will be accessible by the general public.
In the case of Bengaluru, where over 150+ Dry Waste Collection Centers are operational, the modalities of engagement between multiple PIBOs, will need to be worked out.
It is also expected that all plastic waste processors put in their data on their website, while on paper this is a good move, capacity building needs to be undertaken and public data mandate, needs to be applied to all PIBOS
Chasing Sustainability with Compostable Plastics
Compostable Plastics/Bioplastics/ Biodegradable Plastics, seem to be the new obsession with the country. The PWM Rules 2016 as amended only defines compostable plastics. It is not clear if the same definition applies for all terminologies that are used interchangeably.
The regulation states, in case, the obligated entity utilizes plastic packaging which is 100% biodegradable in the ambient environment leaving no traces of micro plastics/chemical residue/any other traces having adverse environmental and health impacts as certified by regulatory entities CPCB, BIS, CIPET, the EPR target will not be applicable for such material. However, as per a recent research, by Lisa Zimmermann and others, analyzing bio-based and/or biodegradable plastic products in the European market found that 80% of tested products contained more than 1,000 chemicals, and 67% of tested products contained hazardous chemicals’.
Currently with no EPR for compostable plastics/ products, and given the need for compostable plastics to be processed separately, it is not practical to club it with other plastics under Category II. ( https://cpcb.nic.in/uploads/plasticwaste/20190718144339.pdf )
Ambiguities in the Draft Regulations
According to Vidya Venugopal, Legal Team, TAICT, ‘In general, the regulations are not fully developed as many provisions require guidelines which are not yet developed by the CPCB. For instance, non-compliant entities will not be fined but will, instead, be charged with “environmental compensation”, the guidelines for imposition and collection of which have not yet been issued by the CPCB. The CPCB can also, in certain circumstances, exempt entities from the obligation for use of recycled plastic content on a “case-to-case basis”. Such ambiguities leave space for PIBOs to find loopholes and subvert the law”.
Undeveloped Mechanism for Transfer of Certificates
Ms. Venugopal adds, ‘Non-compliant PIBOs are entitled to fulfil their obligation of using recycled content through the purchase of certificates from other PIBOs. The mechanism for this exchange, however, has yet to be developed by the CPCB. The functionality of this system, therefore, is yet to be tested’.
The draft EPR regulations must ensure that a plastic credit contribution by way of pricing for low value plastics for informal workers collection, needs to be made available, as it will add for an important income stream and retrieve these materials and solve the larger systemic issue of plastic waste.
‘End of Life Disposal’ Issues
According to Meghana Shetty, ‘The Regulations state that certain non-recyclable plastics can be sent for End of Life Disposal such as road construction, waste to energy, waste to oil, cement kilns (for co-processing) etc., this will, however, have to be in accordance with guidelines issued by Indian Road Congress/CPCB. These guidelines are issued from “time to time”, creating uncertainties”.
She adds, “ In addition when the CPCB introduced SOP for Registration of PIBOs under the PWM Rules, the Cement Manufacturers Association filed a case against this SOP as being impractical”.
The CPCB issued guidelines early on for co-processing of non recyclables plastics. The guidelines stated that producers and manufacturers will in consultation with ULBs arrange collection of non-recyclable plastic waste in packed form and transport to cement companies, and that producers must assist cement kilns for establishment of required facilities for utilisation of non-recyclable plastics like shredding, feed systems, safety measures as applicable, using EPR. The lack of concrete structure and merely depending on guidelines from CPCB, without explicit mention in the regulations, would be counterproductive and theoretical for ‘End of Life disposal’ of plastic waste.
What’s the way forward?
Need for holistic and wider approach on EPR
The draft regulation needs to go back to the drawing board and integrate elements from SWM and PWM Rules 2016. In addition, EPR cannot be successful, if the informal recycling sector is ignored. In order to promote sustainable packaging, the rules will need to define sustainable packaging, not just from a design perspective, but from a lifecycle based approach. According to Myriam Shankar, Founder TAICT, “EPR as a framework needs to be broad based to cover a wide range of materials, that includes footwear and textiles, both of which use plastics, paper, metal, glass and bulky waste material. For example, at the Dry waste Collection centers, in Bengaluru, the operators are struggling to find solutions for footwear, textiles and other bulky waste material like mattresses etc”. Regulations in isolation only serve to aggravate and compound the problem, than provide a long lasting solution, as in the case of E Waste management. It is important to anticipate and address the problems of intended consequences that emerge from privatisation and total formalisation..
The proposed committee to be constituted to recommend MoEFCC for effective implementation of EPR including amendments to EPR guidelines, will need to have representation across four zones from the informal recycling value chain.
Collaboration and Incentivisation not Competition
In order to solve the problem of plastic waste, just transitions that are inclusive and in line with the commitments to sustainable development goals are required. In order to incentivise the informal recycling industry and to learn from the past failures of the E- Waste EPR, must engage proactively with the informal waste recycling chain
And as my colleague Krishna, a former child waste picker, now a Dry Waste Collection Center operator states, “ For a successful EPR policy we need to build understanding of collection from the ground, with people working in waste. With the right support, we ( waste pickers & other informal recyclers)can become key enablers in solving plastic pollution problems. We need to be invited to the table, to discuss policies that will affect our livelihood and until you see as partners in this, the problem is not going anywhere”.
Action Taken Report of MoEFCC based on the report of the Expert Committee on NGT order in Him-Jagriti Case
Minutes of the Meeting with Stakeholders for Plastic Waste Free India 17 September 2019
Report on Single Use Plastics : Department of Chemicals and Petrochemicals, Ministry of Chemicals and Fertilizers, Govt of India