Managing plastic packaging waste: Why the draft EPR rules are likely to fall short

The exclusion of waste collectors and the informal recycling value chain is one among the key concerns with the draft EPR rules.

Anu pushes her overloaded trolley past the supermarket door, towards her car. At home, she empties the contents of her bag onto the counter and then goes about emptying packets into her storage containers –  Biscuits, Dry Fruits, Pulses, Spices. She is left with the discarded packets — most of which can be termed plastic packaging waste — that she places in the bag kept aside for recycling. Her bag already contains some takeaway boxes,  yogurt containers, a flour (atta) packet, chocolate wrappers, some personal care and cleaning containers. As a citizen, she has done her job of ensuring that all packaging is segregated and stored for the pickup. 

Kumudha, Dry waste collection operator, who services Anu’s ward picks up all the materials on the day assigned and takes it to the recycling centre. At the centre,  all materials are sorted into different categories – paper, plastic, metal glass, with further segregation. Each plastic item is further segregated into different categories – PET bottles ( Soft drink bottles), HDPE (shampoo bottles), LDPE ( milk covers), MLP ( Snacks, atta, chocolate wrappers etc)

While some of these plastics have value, and  are sent for further recycling, Kumudha worries about the multilayer, multimaterial packaging accumulating in her centre, which is not recyclable, has no monetary value and needs to be sent for co-processing to cement kilns. 

“Sorting multilayer plastic packaging is a backbreaking exercise. But at all our centres, we take pride in the fact that we ensure these materials which would either have been dumped, landfilled or ended up in water bodies, are collected. And this comes with great cost – the cost of labour involved in collecting, sorting, and bailing at practically no incentive,” she says, “But that’s not all, even in high value materials the price fluctuates, leaving us to operate at a loss.“

On October 6th,  the Environment Ministry released the draft regulation on Extended Producer Responsibility (EPR) for plastic waste management, to make producers, importers of plastic packaging and brand owners responsible for plastic packaging.  Clause 14. 3, categorically states  “The entities involved in waste collection will hand over the waste for treatment and recycling or for identified end uses”. 

Waste worker Kumudha in Bengaluru
Waste workers like Kumudha play a huge role in collecting, sorting and keeping plastic packaging away from landfills. Yet the Draft EPR Rules ignore them completely. Pic: Pinky Chandran

This puts informal waste workers and micro entrepreneurs like Kumudha at risk of being exploited for cheap labour, without any compensation for the efforts undertaken of collecting, transporting and sorting. 

Read more: Indian cities need a waste inventory. These studies show why and how

It also in effect criminalises the entire informal recycling economy, given Clause 6, of the regulation, which states the brand owners like Surf, Pepsi, Coca-Cola etc cannot  do business or dealings with any entity not registered through the centralised portal developed by the Central Pollution Control Board, which in effect makes any intermediaries illegal.  Clause 9.1aI states that such entities carrying out activities without registration under PWM Rules 2016 are in violation and will attract environmental compensation.

But before we go deeper into the problematic nature of the draft proposals, let us try to understand what EPR seeks to achieve and how its journey in the country has been so far.

Who should be made responsible for packaging waste?

While waste management has traditionally been a municipal responsibility, in the recent years, there has been a shift to accord responsibility to producers/manufacturers to be made responsible for the packaging, throughout its life cycle. This concept, termed as  Extended Producer Responsibility, was coined by Thomas Lindhqvist, a Swedish academic, in the early nineties.  The rationale behind EPR, was simple: Business cannot use natural resources infinitely, without paying for the environmental costs of their products that contribute to the ever increasing consumer waste. 

When did India first introduce EPR and in what context?

India first introduced Extended Producers Responsibility (EPR)  in 2011 under the Plastic Waste (Management and Handling) Rules, 2011 and E- Waste Management and Handling Rules, 2011. This was the result of the recommendations made by the Expert Committee set up to examine the comments and suggestions including economic instruments in the Draft Plastics (Manufacture, Usage and Waste Management) Rules, 2009. 

The two important recommendations of the committee were to introduce a system of EPR to recycle plastic waste and to include informal sector actors such as waste pickers in plastic waste management.  The 2011  Rules put the onus on the municipal authority to operationalise EPR, through manufacturers and brand owners and engage with waste pickers.  

What’s been the progress till date?

Unfortunately, the rules remained on paper, with municipal authorities failing to operationalise EPR or meaningfully engage with waste pickers. And this was noted in the Central Pollution Control Board’s Annual Report  2012-13;  2015-16, and 2016-17 . It stated that municipal authorities have not set up any mechanism or have engaged with any agency for the management of plastic waste.

The 2016 Plastic Waste Rules which superseded the 2011 Rules, also stated that producers/ manufacturers would need to work out modalities for waste collection system based on Extended Producers Responsibility and involve State Urban Development Departments. They could do this either individually or collectively, through their own distribution channel or through the local body concerned, within six months from the date of publishing the rules. 

Why has the government released the draft EPR Rules?

Meghana Shetty, Legal Team, The Anonymous Indian Charitable Trust (TAICT) explains the context, pointing out that there have been several petitions filed before the NGT to take the necessary action on EPR: 

  • Him Jagriti Uttaranchal Welfare Society v UOI in O.A 15/2014 which dealt with plastic bottles as well as the packaging of other carbonated drinks, liquor and other consumable goods.
  •  In 2017 the CPCB filed a petition against the State of Andaman & Nicobar Islands (O.A 247/2017) on the enforcement of the 2016 plastic waste management rules which includes the rules on EPR, following this there was an Execution Application No. 13/2019 for enforcement of the same.
  •  In 2019 and 2020 a minor Aditya Dubey filed two petitions (​​(O.A No. 997/2019 & O.A 28/2020) which were clubbed together against Amazon, Flipkart, Coca Cola, Hindustan Coca Cola, Pepsi, Patanjali, Himalayan Water, Parle Agro and Indian Railways. The petitions sought enforcement of the EPR 2016 rules wherein the NGT had directed the CPCB to conduct an environmental audit of these companies and look into their environmental violations. 
  • In 2020 there was another petition (OA 29/2020) filed by Avani Mishra against the Union of India to enforce the EPR rules on plastic pens. 

On January 8 2021, the hearing of Central Pollution Control Board v. State of Andaman & Nicobar & Ors (Execution Application No. 13/2019 in OA 247/2017) in the NGT looked into the report by the Ministry of Environment, Forest and Climate Change on EPR. According to this report in 2017, there was a committee constituted to look into the ‘Mechanism and implementation of EPR’. In 2020 this committee released a guideline document that proposed three models for the EPR regime. 

At that time, the document was released on the website for people to comment on and the committee was looking into the comments to make the necessary changes. The NGT looked into this issue and held that the framing of the EPR regime was progressing at a very slow pace further stating that there was no excuse for such a prolonged delay and further held that the MOEFCC should finalise these rules at the earliest preferably by April 2021.

Multi-layer plastic
EPR rests management of multi-layer plastic such as sachets with the manufacturer until the end of its life. Pic:Wallpaperflare

What are the other points in the proposed draft EPR Rules?

The proposed draft is applicable to both pre-consumer and post consumer plastic packaging of waste and places the responsibility on the producers & importers ( of plastic packaging) and brand owners ( any individual or company that sells any commodity under a registered brand/label trademark) — PIBOs in short — to collect and recycle plastic packaging.  This includes online platforms/marketplaces and supermarkets/retail chains other than micro and small enterprises. 

The regulation prioritises reuse, recycling, use of recycled plastic content and states 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) — should be sent for end of life disposal such as road construction, waste to energy, waste to oil, cement kilns (for co-processing) etc. Examples of these plastics include spice packets, packaged food like flour, noodles, chocolate wrappers etc.

The regulations mandate a year-wise target that includes the category of plastic and State/Union Territory-wise recycling target of plastic waste collected. Plastic producers/ importers are expected to declare to the government, through a centralised website, the amount of plastic produced/imported, along with an action plan on collection mechanism. 

The regulations also specify mandatory use of recycled plastic in plastic packaging based on three categories, based on the percentage of plastic manufactured for the year, effectively from 2023-24. 

Another clause in the regulations is on Offsetting and EPR Certificates. This allows the PIBOs to offset, carry forward or sell any surplus over the targets, in the categories of reuse, recycle, recycled plastics. However, they cannot trade the surplus under ‘end of life disposal’ category. PIBOs are expected to maintain transactions of plastic packaging material purchased, by category and quantity separately. In addition, they are also to maintain a record of sale by category and quantity. The online platform shall be used as a means to cross check the transactions”

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

Read more: Plastic waste: Why EPR alone doesn’t stand a chance

Problems and challenges with the Draft EPR Rules

The Action Taken Report of the Ministry of Environment, Forest and Climate Change (MoEFCC) based on the report of the Expert Committee on NGT Order in Him Jagriti Case and the CPCB Interim Report on EPR framework details steps undertaken to formulate a policy of EPR. The meeting, National EPR framework under PWM Rules, 2018, held on October 25 2019, lists participants from industry bodies, government representatives and corporates. But there is no inclusion of representatives of waste pickers and other informal recyclers.

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.  

As the Union Minister for Urban Development, Housing and Urban Poverty Alleviation and Parliamentary Affairs, Venkaiah Naidu wrote in the preface to this 2016 report, India is home to 10% of the world’s waste pickers, or about 15 lakh waste pickers. It is well known that almost 20% of a city’s waste is already being segregated and recycled by this sector.  However as per other reports upto  60% of recyclable plastic waste is recycled by the informal sector And yet, the draft regulations ignore them completely.

According to Vidya Venugopal, Legal Team, TAICT, “The proposed draft focuses on larger organisations, while ignoring households and the informal economy (including waste pickers).  The Regulations have also ignored the importance of MRFs and its ability to include 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 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”. 

There is nothing euphemistic about the new regulations. As  ​​Shibu Nair, India Coordinator at GAIA (Global Alliance for Incinerator Alternatives), points out “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.” 

The Regulations are also lacking and not complete as many provisions require guidelines that are not yet developed by the CPCB, including the ability to send certain waste for ‘End of Life Disposal’.  The mechanism to transfer certificates for PIBOs to fulfil their recycling obligation is also not fully developed.  There is ambiguity with regard to the definition of “compostable plastic” and the downstream processing of it.  

Lastly, it is not clear whether the online portal, containing submissions from the PIBOs will be accessible to the public.  This brings about issues like lack of transparency and accountability.

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