An inevitable consequence of development and industrial progress is generation of waste. Therefore, efficient waste management is a matter of international concern and countries have set up robust regulatory waste management regimes for balancing the objectives of development and environment sustainability. In India, the National Environment Policy, 2006 while suggesting measures for controlling various forms of environmental pollution lays emphasis on the need for collection and treatment systems for recycling wastes and devising measures for environmentally safe disposal of residues.1 In India, waste management is governed by various sub-ordinate legislations and the Ministry of Environment, Forest and Climate Change, Government of India (“MoEF”) in conjunct with State Pollution Control Boards of different states (“SPCB”) administer the gamut of waste management regulations. This bulletin aims at providing an overview of the various rules governing waste management in India and the issues faced in their compliance.
1. Regulatory Regime for Waste Management
Indian waste management rules are founded on the principles of “sustainable development”, “precaution” (measures should be taken to avoid environmental degradation and hazards) and “polluter pays” (polluter must bear costs for damages and harm caused to environment by his own acts). These principles form an integral part of Indian environmental law jurisprudence, as observed by the Supreme Court of India in various decisions.2 These principles mandate companies and industrial units to act in an environmentally accountable and responsible manner and for restoring the balance, if the same has been disrupted by their business processes. Bearing the essence in mind and the increased levels of waste generation as a by-product of development, various sub-ordinate legislations for regulating the manner of disposal and dealing with generated waste are made by MoEF under the umbrella law of Environment Protection Act, 1986 (“EPA”). Section 6 empowers MoEF to make rules on a wide array of issues such as standards for ensuring environmental soundness, allowable limits for emission of environmental pollutants, manner of dealing with hazardous substances, location of industries and their functioning, and measures for prevention of environmental accidents and hazards. Specific forms of waste are the subject matter of separate rules and trigger separate compliances, mostly in the nature of authorizations, maintenance of records, and adequate disposal mechanisms. Some rules have specific consequences for breach, while in case of some, the general penalty under EPA applies which involves imprisonment of person-in-charge (director, manager, officer of a company with whose consent or connivance the breach occurred) up to 5 years and/or fine up to INR 100,000 (US$ 1574).3 A brief overview of the various rules is provided below.
1.1 Bio-medical Waste (Management and Handling) Rules, 1998
The Bio-medical Waste (Management and Handling) Rules (“BMW Rules”) regulate the manner of disposal of bio-medical wastes (“BM Waste”) and provide a detailed framework for the processes and mechanisms to be followed for their effective disposal. BM Waste means any waste generated in health care processes like diagnosis, treatment or immunisation of human beings or animals, research activities concerning production or testing of ‘biological’4.5 Schedule I further provides categories of BM Waste such as human anatomical, animal, microbiological and biotechnology, discarded medicines, cytotoxic drugs, incineration ash, chemical related waste. The BMW Rules are applicable to a wide array of institutions such as hospitals, nursing homes, clinics, dispensaries, veterinary institutions, animal houses, pathological laboratories, and blood banks.6 Rule 8(1) requires every occupier7 of an establishment generating, or dealing in BM Wastes in any other manner, and of a treatment facility to make an application for authorization from SPCB. The authorization granted is for 3 years after which it must be renewed. As per the BMW Rules, every occupier must take all necessary steps to ensure that BM Waste is (i) handled in a manner not causing any adverse effect to human health and environment, (ii) segregated in containers at point of generation, (iii) handled and disposed off in accordance with prescribed standards. Further, as per Rule 5(2), all covered institutions are mandated to either set up treatment facilities like incinerator, autoclave, microwave system, or to ensure that all BM Waste is treated at a common waste treatment facility. An annual return has to be sent in prescribed format by January 31 to SPCB providing details of categories and quantities of BM Waste handled. There is no specific penalty provided and hence, non- compliance will invoke general penalty under EPA i.e. imprisonment of occupier up to 5 years and/or fine up to INR 100,000 (US$ 1574).
1.2 The Batteries (Management and Handling) Rules, 2001
The Batteries (Management and Handling) Rules (“Batteries Rules”) was notified to effect a regulatory mechanism for dealing in and disposal of used lead acid batteries and their components. The Batteries Rules apply to every manufacturer, importer, re- conditioner, assembler, dealer, recycler, auctioneer, bulk consumer (like departments, organisations purchasing more than 100 batteries) and consumer.8 The scope of duties of each type of entity is provided in detail to ensure collection, recycling, transportation and sale of batteries. For instance, Rule 10 mandates that all consumers deposit used batteries with dealer, manufacturer, importer, assembler, recycler, re-conditioner or designated collection centres. Further, bulk consumers are required to file half-yearly returns with SPCB. Rule 6 requires that for importing batteries from other countries for recycling in India, prior customs clearance must be obtained. Additionally, import of batteries will be allowed only upon producing valid registration with Reserve Bank of India and MoEF and providing an undertaking in prescribed format along with a copy of the latest half-yearly return. Non- compliance with the BMW Rules also attracts punishment under the EPA whereby the person-in-charge may be imprisoned for up to 5 years and/or fined up to INR 100,000 (US$ 15574).
1.3 The E-waste (Management and Handling) Rules, 2011
The E-waste (Management and Handling) Rules, 2011 (“E-waste Rules”) aim at putting in place an environmentally sound e-waste management system9 by regulating issues of disposal, import and recycling of e-wastes. The E-waste Rules apply to every producer, consumer or bulk consumer (including factories under Factories Act) involved in the manufacture, sale, purchase, and processing of electrical and electronic equipment or components, along with all collection centres, dismantlers and recyclers of e-waste.10 E-waste is defined under Rule 3(k) to mean waste electrical and electronic equipment, in whole or part or as rejects in the manufacturing and repair process which are discarded. As per Rule 4, the producer of electrical and electronic equipments must obtain authorization from SPCB, and is responsible for collection of e-waste generated in the manufacturing processes or after end- of-life as part of extended producer responsibility11, setting-up collection centres, financing costs involved for recycling, creating awareness, and maintaining records and filings. The E- waste Rules also delineate the responsibilities of collection centres, consumers, bulk consumers, dismantlers and recyclers. The rules also provide for the manner of storage, transportation, recycling of e-wastes, procedure for obtaining registration, maintaining of records, etc. Non-compliance with the provisions of E-waste Rules may result in cancellation or suspension of the authorization.
1.4 The Plastic Waste (Management and Handling) Rules, 2011
The Plastic Waste (Management and Handling) Rules, 2011 (“PWM Rules”) set up a regulatory framework for manufacture, usage and recycling of plastic bags to ensure management of plastic waste. Plastic waste means any plastic product such as carry bags, pouches, etc. which has been discarded after use or end-of-life.12 The rules are applicable to all manufacturers, stockists, distributors, retailers and users of plastic products. Rule 9 mandates every manufacturer of plastic carry bags, multilayered pouches or sachets and every recycler to seek registration with SPCB. Such registration is valid for a period of 3 years. Further, in order to ensure that price is paid for usage of plastic, Rule 10 states that no retailer can provide plastic carry bags free of cost. Further, the PWM Rules detail aspects of plastic bags such as thickness, colour, classification into virgin or recyclable or compostable plastics, and responsibilities of municipal authorities. There is no specific penalty provided for non-compliance and thus, penalty under EPA will apply as per which the person-in- charge may be imprisoned for up to 5 years and/or fined up to INR 100,000 (US$ 15574).
1.5 The Hazardous Wastes (Management, Handling and Transboundary Movement) Rules, 2008
The Hazardous Wastes (Management, Handling and Transboundary Movement) Rules, 2008 (“HWM Rules”) were framed for regulating generation, storage, reuse, recycling, import, transportation and treatment of hazardous wastes. India signed and ratified the Basel Convention, 1992 dealing with transboundary movement and disposal of hazardous waste. The restrictions on cross-border transportation of hazardous waste for purposes of recycling as provided in the Basel Convention are incorporated in the HWM Rules. Rule 2(l) defines hazardous waste as any waste which by virtue of its physical or other characteristics (described as chemical, toxic, inflammable, reactive, explosive, etc.) causes or can cause danger to health or environment, either standalone or in combination with other substances. A list of processes generating hazardous waste is identified in Schedule I which inter-alia includes industries engaged in petro-chemicals, oil & gas, petroleum, mines and minerals, zinc, copper, lead based production, textiles, steel, asbestos, electronic, tannery, etc. Every occupier of a factory under Rule 5(1) is required to obtain authorization from SPCB, and will be responsible for safe and environmentally sound handling of hazardous wastes generated in the establishment. As such it is mandated that every occupier must (i) sell hazardous waste only to a registered recycler, (ii) transport such waste in the manner prescribed, (iii) prevent accidents, and (iv) increase awareness.13 Further, the occupier has to file annual returns and maintain records regarding generation of hazardous waste in prescribed forms.
Hazardous waste treatment is a flourishing industry in India and large quantities of such waste are imported for recycling and treatment. With the objective of regulating illegal traffic of hazardous wastes, it is provided under Rule 17 that prior permission of Central Government must be obtained for importing such waste and further, the import must conform to the shipping details. In the event that the permission is obtained through fraudulent means or the import results in dumping of waste in breach of Basel Convention and the general principles of international environmental law (such as sustainable development), inference of illegal traffic would be drawn. The rules provide for detailed responsibilities for the concerned parties with respect to recycling, storing, importing, exporting, transporting and labelling of hazardous waste. Non-compliance vests SPCB with the power to cancel and suspend the authorization issued.
2. Issues faced by industries
Various practical problems emerge in the implementation of these rules. The applicable law is spread over a number of rules. These rules mandate separate authorizations for each scenario. It would have been far easier to adhere with conditions and comply with applicable law, if a unified legislation was notified and requirement for a single license for disposal of different kinds of wastes was put in place. Another issue faced by industrial units is the unreasonably long time taken by SPCB and its officials to issue or renew authorizations. Once the application is made, there is no mechanism through which status of processing of applications can be tracked. More often than not, facilitatory payments are resorted to obtain permits and this acts as a major disincentive. Further, there is lack of predictability regarding the regulatory approach of various SPCBs resulting in speculative risk assessment. Large part of inspection by SPCB is aimed at big industrial units who are put under constant scrutiny while small and medium enterprises are left to function in a lackadaisical manner. There is no uniform set of conditions which are imposed under authorizations for all categories of entities and this results in absence of a nationwide monitoring mechanism for compliances. There are no reliable statistics on the exact number of prosecutions and revocations of authorizations, although generally industry intensive states are more proactive in enforcing the legal mandate. There is also a lack of professional environmental audit firms specialising in risk assessment involved in setting up business units at particular places. These all contribute to invoke scepticism in investors. Furthermore, maintenance of records and filings with SPCB are yet to be adapted into an IT enabled system and the physical maintenance becomes a mammoth task due to the sheer volume.
There is an increased focus from regulators towards the need for sustainable environment and the same is evidenced from the new Companies Act which requires certain companies to compulsorily carry out corporate social responsibility activities, including environmental development. In order to avoid adverse consequences such as revocation of authorization or prosecution, it is advisable that periodic internal audits and checks are conducted for identifying non-compliances and addressing them efficiently. Further, compliance with applicable environmental laws works to build brand image and product value, for acting in an environmentally responsible manner.