India: The E-Waste (Management) Rules 2022

1. BACKGROUND

Since the advent of economic liberalisation and increased focus to encourage manufacturing by the Indian government, the country is emerging as an electronic manufacturing hub led by states like Maharashtra, Tamil Nadu, Uttar Pradesh and Karnataka.¹ With a growing middle-class population, the Indian consumer electronics market is expected to be valued at USD 124.94 billion by 2030.² The country is also the third largest producer of e-waste in the world.³ However, reports suggest that only 10% of the e-waste generated in India is collected for recycling.⁴ Since electrical and electronic appliances use precious metals, e-waste can be a great source of rare earth elements.⁵ In 2017, India could have extracted gold worth USD 0.7 to 1 billion from recycling e-waste.⁶ The immense economic potential of the untapped e-waste market and predictable environmental policies for businesses involved in recycling of waste can create "green" jobs and the e-waste recycling industry will likely see massive growth in the coming years.⁷ To address this potential growth, the Government has introduced the E-Waste (Management) Rules 2022 (the "2022 Rules"), replacing the E-Waste (Management) Rules 2016 (the "2016 Rules").⁸ The 2022 Rules came into force on 1 April 2023.⁹

2. SCOPE OF THE 2022 RULES

The erstwhile 2016 Rules defined e-waste to mean electrical and electronic equipment, discarded as waste or rejected from manufacturing, refurbishment, and repair processes. However, the 2022 Rules have broadened the definition of e-waste to include solar photo-voltaic modules or panels or cells. While the 2016 Rules regulated only 21 types of electrical and electronic equipment items ¹⁰, the 2022 Rules have expanded the horizon to cover more than 100 types of electrical and electronic items to include (but not limited to) tablets, global positing systems, modems, electronic storage devices, and air purifiers.¹¹

3. APPLICABILITY

The extent of applicability across various categories has been narrowed under the 2022 Rules in comparison to the 2016 Rules. The 2022 Rules restrict the applicability to only manufacturers, producers, refurbishers, dismantlers and recyclers involved in manufacture, sale, transfer, purchase, refurbishing, dismantling, recycling, and processing of e-waste¹², excluding other categories such as consumers, collection centres, dealers, and e-retailers.

The 2022 Rules have also scaled down the obligations of bulk consumers. The 2016 Rules explicitly covered the responsibilities of bulk consumers which mandated them to channelise the e-waste through collection centres or dealers of authorised producers or dismantlers or recyclers and further, maintain records and submit annual returns to the relevant state pollution control board.¹³ However, the responsibilities of the bulk consumers have been significantly eased under the 2022 Rules and bulk consumers are now only required to hand over e-waste to registered producers, refurbishers or recyclers, effectively eliminating the bulk consumers' requirement to maintain records and submit annual returns.¹⁴

4. REGISTRATION REQUIREMENTS

The 2016 Rules required producers to obtain authorisation from the Central Pollution Control Board ("CPCB")¹⁵ while manufacturers, refurbishers, dismantlers and recyclers had to obtain authorisation from their respective State Pollution Control Boards ("SPCB").¹⁶ All regulated entities under the 2022 Rules are required to compulsorily register themselves on CPCB's online portal ("Portal").¹⁷

Further, the 2022 Rules bring clarity to the e-waste governance policy. The 2016 Rules implied that producers, manufacturers, refurbishers, dismantlers and recyclers had the responsibility to apply for an authorisation to operate, maintain and file certain compliance forms with the relevant pollution control board and maintain records for scrutiny by the relevant pollution control board.¹⁸ The 2022 Rules further clarify this aspect by expressly stating that no entity can operate without registration or deal with an unregistered entity during the course of their business.¹⁹

5. EXTENDED PRODUCER RESPONSIBILITY

5.1. Extended Producer Responsibility Certificates

The E-waste (Management and Handling) Rules, 2011 introduced the concept of Extended Producer Responsibility ("EPR") where any producer of electrical or electronic equipment is responsible for the entire life cycle of the product, i.e., manufacturing, recycling, and final disposal of the product²⁰. In the 2016 Rules and the 2022 Rules, the EPR framework seeks to ensure that producers recycle the waste they generate by imposing annual recycling targets.

The 2016 Rules required producers to submit to the CPCB, their EPR plan, which sets out the details of the e-waste channelization system for targeted collection of e-waste.²¹ Producers were then able to fulfill such EPR plans and meet their targets, by²²: (a) implementing take back systems or setting up collection centers and then recycling the e-waste; or (b) entering into arrangements with third parties to recycle the e-waste.

However, there has been a notable departure in the approach adopted by the 2022 Rules. The 2022 Rules require producers to fulfill their target by purchasing online EPR recycling certificates from registered recyclers.²³ The number of EPR recycling certificates generated by recyclers under the 2022 Rules is proportional to the amount of e-waste recycled by them.²⁴ Therefore, the 2022 Rules assume that the registered recyclers will be able to generate enough EPR certificates for all the producers to meet their targets. The rationale behind the assumption appears to be that if there is a dearth of EPR certificates, (i) there will be new entrants in the recycling space to cover the deficit and / or (ii) the existing recyclers will expand their operations and cover the gap in the market. The 2022 Rules also allow producers to collaborate with third party organizations such as collection centers, dealers or registered recyclers so that the producers can achieve their EPR obligations and meet their targets.

5.2. Refurbishing Certificates and Deferred Liability

The 2022 Rules also introduce the concept of refurbishing certificates and deferred liability, wherein refurbishers can generate refurbishing certificates by extending the life of electrical and electronic items.²⁵ Each refurbishing certificate will correspond to a certain quantity of waste.²⁶ Purchasing these certificates online allow producers to defer their EPR liability by the period of time added to the life of the refurbished product.²⁷ In a clear move to incentivise refurbishment, the 2022 Rules have stipulated that only 75% of the deferred quantity shall be added to the EPR target of the producer for recycling upon expiry of the extended life of the refurbished product.²⁸

6. MANAGEMENT OF SOLAR PHOTOVOLTAIC MODULES, PANELS AND CELLS

The 2022 Rules impose obligations on entities manufacturing solar photo-voltaic modules, panels or cells. Such entities are required to register on the Portal, maintain an inventory of these items on the Portal, follow CPCB guidelines for e-waste storage and submit annual returns through the Portal.²⁹ The 2016 Rules did not include any provisions regarding these responsibilities as solar photovoltaic devices were not recognised as electrical and electronic equipment that generated e-waste.³⁰

7. WIDENED SCOPE OF PENALTY

The penalty for the violation of the 2016 Rules was imposed in accordance with the Environment (Protection) Act, 1986 ("EPA").³¹ The 2022 Rules have introduced provisions related to environmental compensation which will be applied in addition to the penal provision of the EPA.³² Additionally, the 2022 Rules have broadened the scope of imposing environmental compensation by recognising the aid and abetment of any violation of the 2022 Rules as an offence that attracts compensation.³³

8. CONCLUSION

The 2022 Rules are an important step towards an environmentally friendly e-waste management policy and remove ambiguity on the mechanisms that govern the e-waste landscape in India. By opting for registration instead of authorization and introducing the Portal for registration, fulfillment of EPR obligations and filing purposes, the Government also seems to be moving towards a simplified, digital friendly e-waste governance model. The enhancement of penalties also strikes a balance towards a sustainable environment.

Footnotes

1. Abhijit Ahaskar, ‘Karnataka, TN, UP, Maharashtra frontrunners for ESDM ecosystem: Industry report' https://www.techcircle.in/2022/10/13/karnataka-tamil-nadu-up-maharashtra-are-frontrunners-in-establishing-ecosystem-for-esdm accessed 21 August 2023.

2. India Consumer Electronics Market Report 2022-2030: Breakdown by Mobile Phones, Televisions, Refrigerators, Digital Cameras, Air Conditioners, Washing Machines https://www.businesswire.com/news/home/20220412005646/en/India-Consumer-Electronics-Market-Report-2022-2030-Breakdown-by-Mobile-Phones-Televisions-Refrigerators-Digital-Cameras-Air-Conditioners-Washing-Machines---ResearchAndMarkets.com accessed 21 August 2023.

3. Vishwa Mohan, ‘Why India needs to ramp up e-waste collection now' (Times of India, 3 December 2022) < https://timesofindia.indiatimes.com/india/why-india-needs-to-ramp-up-e-waste-collection-now/articleshow/95953025.cms > accessed 17 August 2023.

4. Ministry of Electronics and Information Technology, ‘Circular Economy in Electronics and Electrical Sector' (Policy paper, 25 May 2021) < www.meity.gov.in/writereaddata/files/Circular_Economy_EEE-MeitY-May2021-ver7.pdf > accessed 17 August 2023.

5. Ministry of Electronics and Information Technology, supra note 4.

6. Vishwa Mohan, supra note 3.

7. Ashish Pandey, ‘MSME: Green jobs: Potential for MSMEs in e-waste & recycling space' (Economic Times Online, 27 July 2023)<  https://economictimes.indiatimes.com/small-biz/sustainability/green-jobs-potential-for-msmes-in-e-waste-repair-recycling-space/articleshow/102160310.cms?from=mdr > accessed 16 August 2023.

8. E-Waste (Management) Rules 2022.

9. E-Waste (Management) Rules 2022, section 1(2).

10. E-Waste (Management) Rules 2016, schedule I.

11. E-Waste (Management) Rules 2022, schedule I.

12. E-Waste (Management) Rules 2022, rule 2.

13. E-Waste (Management) Rules 2016, rule 9.

14. E-Waste (Management) Rules 2022, rule 8.

15. E-Waste (Management) Rules 2016, rule 13(1).

16. E-Waste (Management) Rules 2016, rules 13(2), (3) and (4).

17. E-Waste (Management) Rules 2022, rule 4(1).

18. E-Waste (Management) Rules 2016, rules 4(2), 4(5), 5(4), 5(5), 5(6), 8(2), 8(6), 10(2), 10(7), 10(8), 11(2), 11(8) and 11(9).

19. E-Waste (Management) Rules 2022, rule 4(2) and (3).

20. Press Information Bureau, Government of India Ministry of Environment, Forest and Climate Change (13 December 2011) < https://pib.gov.in/newsite/PrintRelease.aspx?relid=78620 accessed on 21 August 2023.

21. E-Waste (Management) Rules 2016, rule 3(v).

22. E-Waste (Management) Rules 2016, rule 3(t).

23. E-Waste (Management) Rules 2022, rule 13 (3) (i).

24. E-Waste (Management) Rules 2022, rule 14.

25. E-Waste (Management) Rules 2022, rule 14(2)(i).

26. E-Waste (Management) Rules 2022, rule 14(2)(ii).

27. E-Waste (Management) Rules 2022, rule 14(2)(ii).

28. E-Waste (Management) Rules 2022, rule 14(2)(iii).

29. E-Waste (Management) Rules 2022, Rule 12(2).

30. E-Waste (Management) Rules 2016, schedule I.

31. Environment (Protection) Act 1986, section 15.

32. E-Waste (Management) Rules 2022, rule 22.

33. E-Waste (Management) Rules 2022, rule 22(3).

The content of this document do not necessarily reflect the views/position of Khaitan & Co but remain solely those of the author(s). For any further queries or follow up please contact Khaitan & Co at legalalerts@khaitanco.com