Extended Producer Responsibility: Possibilities in Indian context

There is no such thing as “away”. When we throw anything away it must go somewhere.

INTRODUCTION

Electronic products have not only become an integral part of our lives, but also contribute significantly to environmental consequences. Throughout our lives we are dependent upon countless number of electrical and electronic products but we do not think about what happens to these goods once they become obsolete or discarded. The use of electronic goods has proliferated in recent decades and proportionality, the quantity of electronic goods that are disposed of, is growing rapidly throughout the world. Electronic waste or e-waste is an emerging problem in developed and developing countries worldwide.

According to a joint study by ASSOCHAM-NEC, India is among the top five countries in the world, in terms of e-waste generation.[1] Out of the total e-waste generated in India in 2016, only 20 per cent was documented to be collected properly and recycled, while there is no record of the remaining e-waste. Most of these wastes end up in dumping yards and recycling centers, posing a new challenge to the environment and policymakers as well.

An effective way of e-waste management is to encourage manufacturers to design environmentally friendly products by holding producers responsible for the costs of managing their products at end of life because the producers have the greatest control over product design and marketing; these same companies have the greatest ability and responsibility to reduce toxicity and waste. This is the idea behind the policy of extended producer responsibility (EPR). Organisation for Economic Co-operation and Development  (OECD) countries, Japan and China, to name a few, are some of the countries which have benefited themselves out of the EPR programmes. The E-Waste (Management and Handling) Rules, 2011 introduced the concept of EPR for the first time in India which made all the producers of electronic goods responsible for the waste production management. The amendment to the e-waste policy, with the new E-Waste (Management) Rules, 2016, set stringent targets for the producers to collect and recycle end-of-life products of their goods. However, since a large portion of waste collection is done by the informal sector implementation of EPR is a big challenge for India. This paper attempted to explore and buttress the possibility of extended producer responsibility (EPR) in Indian context, by analysing different characteristic aspects of it.

HISTORICAL BACKGROUND

The extended producer responsibility policy was introduced by Thomas Lindhqvist in a report to the Swedish Ministry of Environment in 1990. The report was the result of analysis done on various Swedish and foreign recycling and waste management schemes, as well as policies used by these companies for promoting cleaner production.[2] It was introduced in various European countries viz. Austria, Germany, Netherlands, Switzerland, and the Scandinavian countries, when they were planning and commencing the implementation of various policy instruments to improve the management of end-of-life products. Soon it spread to most of the OECD countries and several developing countries in past few years.

In India an attempt was made to enforce the EPR policy in the year 2005, through a private member’s Bill on “The Electronic Waste (Handling and Disposal) Bill, 2005.”[3] It was introduced in Rajya Sabha by Shri Vijay J. Darda, Hon’ble Member from Maharashtra. The Bill recognised that while there was no proper way of e-waste disposal and handling, every home had a number of electronic goods. Once these goods are discarded or become obsolete, they are either thrown in the garbage or sold to scrap dealers, who dismantle the goods and keep the useful part and the rest forms a part of landfills. It criticised the improper way of handling the way and demanded for regulation of electronic waste disposal. The Bill sought to provide for proper handling and disposal of millions of tonnes of electronic waste by prescribing norms and fixing regulation and duties on manufacturers, recyclers and consumers with regard to the disposal of electronic waste and for all matters connected to it. The Bill however lapsed in July 2010. The E-Waste (Management and Handling) Rules, 2011 introduced the concept of EPR for the first time in India, while the E-Waste (Management) Rules, 2016 brought more stringent targets for collection of end-of-life products and simplified the process of applying for EPR authorisation.

EPR AND PRODUCER RESPONSIBILITIES

The extended producer responsibility entails three liabilities and the extent of these liabilities is determined by legislation. These three liabilities are described below:

Economic responsibility means that the producer will cover all or part of the expenses, for example, for the collection, recycling or final disposal of products he is manufacturing. These expenses could be paid for directly by producer or by a special fee.[4]

Physical responsibility is used to characterize the systems where the manufacturer is involved in the physical management of the products and/or their effects.[5] The manufacturer may also retain ownership of his product throughout the product’s lifecycle and therefore be responsible for environmental damage caused by it.

Informative responsibility signifies several different possibilities to extend responsibility for the products by requiring the producers to supply information on the environmental properties of the products they are manufacturing.[6]

The above classifications helped the Swedish Government to frame a policy on extended producer responsibility and it successfully illustrated the need for specifying the responsibility, both in terms of who is responsible and for what he is to be held responsible.

In India, shorthand has been developed for the complex EPR programme and the EPR policy finds place in Plastic Waste Management Rules, 2016[7] and E-Waste (Management) Rules 2016.[8] But neither of these Acts talks about the responsibilities in particular, it simply puts the manufacturer liable for the waste generated by their product. Such shorthand is not healthy for the policy transfer perspective because of two reasons. Firstly, it creates several deviances from the actual EPR programme and they are not equally effective in achieving the two sets of EPR objectives. Secondly, such shorthand approach is highly susceptible to incomplete transfer because only the perceived core character of existing EPR programme is highlighted, rarely giving a rounded picture of programme configurations.

OBJECTIVES OF EPR

Lindhqvist (re)allocated product responsibilities in two families of policy objectives: “(1) design improvements of products and their systems; and (2) high utilisation of product and material quality through effective collection, treatment, reuse or recycling in an environmental friendly and socially desirable manner”.[9]

The design/upstream objectives is a unique feature of EPR. It basically encourages the producers to design their product in such a manner so as to reduce consumption of virgin materials, to undertake product design changes, to reduce waste generation and ensure closure material loops in order to promote resource efficiency and sustainable development. It can be further divided into two categories, product design improvement and product system design improvement. Some examples of product design improvements are design for disassembly (DfD), design for the environment (DfE) and design for recycling (DfR). Product system improvements are concerned with all other factors, besides the product per se, that enable the functionality throughout the lifecycle.[10]

The waste management/downstream objectives cover collection, treatment, and reuse and recycling. Though these are conventional waste management techniques but EPR has several advantages to other approaches in achieving them. Firstly, placing clear responsibilities on one actor would avoid the situation where everyone’s responsibility becomes no one’s responsibility.[11] Secondly, it is a good way to source finance from actors at the point of sale of the goods. In this manner EPR offers an attractive financial solution to manage the waste problem for the governmental agencies.

The establishment of these feedback loops from the downstream (waste handling) to the upstream (product improvement) is the core of EPR that distinguishes EPR from mere take-back system.

India has made a positive stride in towards achieving the two sets of objective. Schemes like eco-labelling and eco-design of electronic devices, both household and industrial devices, promotes sustainable consumption of resources thereby reducing the dependence on virgin resources. Execution of General Agreement on Tariffs and Trade (GATT) by India has promoted sustainable business model and practices like eco-labelling. Therefore, when it comes to observing the upstream objectives India has performed fairly but due to the inadequate infrastructure and lack of recycling facilities in the countries the downstream objectives cannot be observed to its fullest extent.  Further, the enforcement of regulation is weak due to lack of resources and an underdeveloped legal regulation, thus even if stringent regulations are framed for the recyclers it fails to be executed properly.

EPR AND TAKE-BACK SCHEME

The definition of EPR was formally given for the first time by the Swedish Ministry of the Environment and Natural Resources in the following manner:

Extended producer responsibility is an environmental protection strategy to reach an environmental objective of a decreased total environmental impact from a product, by making the manufacturer of the product responsible for the entire life cycle of the product and especially for the take back, recycling and final disposal of the product.[12]

As seen from the above definition, EPR extends the responsibility of the producer to the entire life cycle of the product chain — from cradle to grave. However the end of the life product has become the popular focus for most EPR policy and the earliest take-back activity began in Europe, where Government sponsored take-back initiatives arose from concerns about scarce landfill space and potentially hazardous substances in component parts. In Japan producers are responsible for recycling cars and electronic products[13] and in Canada many provinces are now passing take-back laws for paints, batteries, tires, packaging and electronics waste.[14] In India the take-back scheme is passed for the producers of e-waste and plastic.

The E-Waste (Management) Rules, 2016, placed responsibility upon the producers to facilitate their collection after their end-of-life, under the take-back scheme, and return it to authorised dismantlers and recyclers. However, it has been unsuccessful in implementation because of the lack of proper guidelines and resources. The Supreme Court while hearing a suo motu petition has slammed lakhs of fines on various States and Union Territories for not complying with these Rules.[15]

The failure of the take-back scheme in India is because of three major reasons. Firstly, the Rules state that the companies have to meet the collection target in a phased manner, which shall be 30% of the estimated quantity of waste generation during first two year of implementation of Rules followed by 40% during the third and fourth year and 50% during fifth year, however it lacks the mechanism to verify the claims of these companies. Secondly, the rule primarily focuses upon the formal sectors of recycling even though most of the recycling is handled by informal sector. Further, it does not even provide incentives for the informal recyclers either to sell to the formal recyclers or to formalise. Thirdly, considering the low scale of operational and locational aspects (of producers and users), it may not be economically viable and physically feasible for each and every producer to establish an e-waste recycling unit either individually or collectively, nor will it be feasible for them to set up collection centres individually or collectively.

Lastly, the dearth of proper recycling infrastructure in the country also makes it difficult to observe the take-back scheme.

Though there are several reasons that attribute to the failure of proper implementation of take-back scheme in India, but what is required is serious effort by the manufacturers. We can take the cue from Nokia (India) which began its campaign in 2008, when e-waste was given little attention. It began its campaigning for the take-back scheme since 2009 and till now it has successfully collected 160 tonnes of mobile phones and accessories, which is sent to authorised recyclers.

CONSTITUTIONAL PERSPECTIVE OF EPR IN INDIA

To protect and improve the environment is a constitutional mandate. It is a commitment for a country wedded to the ideas of a welfare State.  It is widely accepted that the right to life under Article 21 also embraces the right to live in a wholesome, pollution-free environment.[16] This has to be read in conjunction with Articles 48-A and 51-A(g) that imposes a duty on the State to preserve and improve the environment.[17] It makes the State as well as the citizens responsible for the preservation of the natural environment. The EPR policy, in India, places a responsibility on the State Governments to monitor the manufacturers, producers and recyclers to ensure that they comply with the standards and also ensure that they meet the targets of collection of the e-waste specified in the E-Waste (Management) Amendment Rules, 2018.[18] Further, it also places responsibility upon the consumers of electronic devices to protect the environment against the harm caused by the devices upon their end-of-life under the take-back scheme. Thus, it affirms the constitutional duty to protect the environment.

Polluter pays principle is deeply rooted in legal systems but it came to be explicitly discussed in relation to environmental harms by the Organisation for Economic Cooperation and Development in the 1970s and 1980s.[19] This later formed the base of the EPR policy. In India, this concept is brought to the forefront through the way of judicial activism. The concept of polluter pays principle was described in Indian Council for Enviro-Legal Action v. Union of India,[20] by the court in following manner: “The polluter pays principle demands that the financial costs of preventing or remedying damage caused by pollution. Under the principle it is not the role of Government to meet the costs involved in either prevention of such damage, or in carrying out remedial action, because the effect of this would be to shift the financial burden of the pollution incident to the taxpayer.”  By placing the financial burden for recycling e-waste on electronics producers, EPR espoused a version of “polluter pays” principle, whereby producers are held responsible for adverse environmental effects caused by their products.[21] The Plastic Waste (Management) Rules, 2018,[22] gives a thrust to reduce the plastic waste by the adoption of the polluter pays principle for the sustainability of the waste management system.

RECOMMENDATIONS

(i) India has forever been benefited by selling the waste, through the kabadiwalas or the scrap dealers. Most of the consumers, especially individual consumer, still prefer to sell of their e-waste to informal sector rather than deposit in the take-back system set up by producer. Lack of knowledge regarding the repercussions of improper disposal leads most consumers to prefer the most convenient disposal route of selling the e-waste kabadiwalas or illegal contractors.[23] Therefore, there is a growing need for educating the consumers, because any amount of infrastructure or best technology will be a failure if no waste flows in that. Further, electronics producers also do not invest in recycling considering the lack of public awareness.

(ii) There should be a detailed model for collection of waste from the consumer till the recycling because in countries like India there is a lack of awareness regarding proper disposal of e-waste and most of the waste ends up in garbage. The Rules [E-Waste (Management) Rules, 2016 and Plastic Waste Management Rules, 2016] also do not detail the business model for collection of e-waste from consumers. The Rules cover generation, storage, transportation and disposal of the waste but do not propose a streamlined collection mechanism.

(iii) The municipalities should play an active role in managing the e-waste. The Constitution as well assigns the solid waste management as a primary responsibility of the municipalities. Article 243-W empowers the State Legislatures to frame legislations in respect of waste management.[24] The E-Waste (Management) Rules 2016, entrusted the municipalities with the task of ensuring that the waste is properly segregated, collected and are channelised to authorised dismantlers and recyclers. In Almitra H. Patel v. Union of India,[25] the Supreme Court while pointing towards the appalling condition of the Delhi reprimanded the Municipal Corporation of Delhi for not being able to provide a clean environment to the residents. Further, it showed the prevalent mismanagement of municipalities across various States. India can take a cue from Spain where the local authorities, in municipalities with more than 5000 people, are responsible for collecting waste electrical and electronic equipments (WEEE) from households and storing it until it is collected or sorted and treated by the producer or their collective organisation.[26]

(iv) The E-Waste Rules talks about economic incentives for addressing the needs of the formal sectors of recycling and dismantling. But the Rules are silent about the informal sector, which handles about 90% of the total recycling and dismantling. Therefore more attention should be paid towards this sector for providing them economic incentives, lowering the cost of formalisation, skill and knowledge transfer, and safety and efficiency training. The vastness of informal sector network can prove to be advantageous for performing last-mile collection.

(v) Research and development should be supported for lower-cost recycling technologies as this will enable safer recycling and the growth of the formal sector. Lessons from other countries can be taken as countries around the globe have already begun to build e-waste recycling infrastructure using EPR, reaping the benefits of increased volumes of recyclable goods to their countries. In Belgium, for instance, a state-of-art recycling facility uses advanced technologies to recycle e-waste which recycles 95% of the items sent to the facility.[27]  Further, lessons from successful public partnerships can be applied to set up collection and distribution logistics and incentives.[28]

(vi) According to the Hazardous and Other Wastes (Management and Transboundary Movement) Rules, 2016, importing e-waste for disposal is banned in India. But huge amount of electronic waste produced by other countries also ends up in India.  Some studies report that almost 70 per cent of electronic waste handled in India is produced elsewhere in spite of a reported import ban on electronic waste.[29] Border control should be better enforced to prevent smuggling of electronic waste from developed countries.

CONCLUSION

We can still find people questioning the severity of environmental threats. However, for the most part, there is today consensus about the need for addressing environmental problem more vigorously. Preventive approaches to solving environmental problems have been found as environmentally and economically beneficial for several decades now. EPR has evolved as a preventive approach to tackle with the harmful e-waste. It is an environmental policy approach in which a producer’s responsibility for a product is extended to the post-consumer stage of the product’s life cycle, including its final disposal. EPR has been implemented in various countries and has successfully reduced the generation of waste and their dependence upon virgin resources, for e.g. in Europe, while no comprehensive collection and treatment infrastructure existed before the Waste Electrical and Electronic Equipment Directive (WEEE Directive), it has surpassed its collection targets.[30] India following the path of these countries has implemented EPR for e-waste and plastic. Even though the Rules framed under this policy is fairly good but the onus is now on the producers to take required initiative to address this growing problem of e-waste. EPR policy can be successfully implemented in India only if the governmental agencies, like Central Pollution Control Board (CPCB) and State Pollution Control Board (SPCB), and the manufacturers join hands to manage the goods from its cradle till its end-of-life.


 † 2nd year student, BA LLB, National University of Study and Research in Law, Ranchi.

[1] Aastha Ahuja, E-Waste on the Rise: India is Now One of the Top Five E-Waste Producers in the World: Report, NDTV (26-6-2018 10:50 a.m.) <https://swachhindia.ndtv.com/india-world-top-5-e-waste-producer-assocham-nec-report-21415>.

[2]  Thomas Lindhqvist, Extended Producer Responsibility in Cleaner Production: Policy Principle to Promote Environmental Improvements of Product Systems, IIIEE, Lund University (2000).

[3]  Vijay J. Darda, The Electronic Waste (Handling and Disposal) Bill, 2005, 375-376, Parliament of India, Official Debates of Rajya Sabha, <http://rsdebate.nic.in/rsdebate56/handle/ 123456789/61427?viewItem=browse>

[4]  Lindhqvist, T. (2000). Extended Producer Responsibility in Cleaner Production: Policy Principle to Promote Environmental Improvements of Product Systems, Executive Summary (iii). IIIEE, Lund University.

[5]  Ibid.

[6]  Ibid.

[7]  Plastic Waste Management Rules, 2016, G.S.R. 320(E), 2016 (India).

[8]  E-Waste (Management) Rules, 2016, G.S.R. 338(E), 2016 (India).

[9]  Van Rossem, C., and Lindhqvist, T. (2005), Evaluation Tool for EPR Programs, Lund, Sweden: IIIEE, Lund University.

[10]  Lindhqvist, T. (2000), Extended Producer Responsibility in Cleaner Production: Policy Principle to Promote Environmental Improvements of Product Systems, Ph.D. Dissertation, IIIEE, Lund University, Lund, Sweden.

[11]  Lindhqvist, T., and Lifset, R. (1997), What’s in a Name: Producer or Product Responsibility? Journal of Industrial Ecology, 1, 6-7.

[12] Lindhqvist, Thomas. (1992). Mot ett förlängt producentansvar – analys av erfarenheter samt förslag (Towards an Extended Producer Responsibility — analysis of experiences and proposals). In Ministry of the Environment and Natural Resources, Varor som faror — Underlagsrapporter (Products as Hazards — background documents). Ds 1992:82. The definition was published in English for the first time in: Lindhqvist, Thomas (1992), Extended Producer Responsibility. In Lindhqvist, T., Extended Producer Responsibility as a Strategy to Promote Cleaner Products (1-5). Lund: Department of Industrial Environmental Economics, Lund University.

[13]  Tojo, Naoko (2001), Effectiveness of EPR Programme in Design Change. Study of the Factors that Affect the Swedish and Japanese EEE and Automobile Manufacturers. IIIEE Report 2001:19, Lund: IIIEE, Lund University.

[14]  For an overview of EPR in Canada see <www.epsc.ca>.

[15]  Outrage as Parents End Life after Child’s Dengue Death, In re, (2016) 10 SCC 709

[16] Subhash Kumar v. State of Bihar, (1991) 1 SCC 598; M.C. Mehta v. Union of India, (1998) 9 SCC 589; Virender Gaur v. State of Haryana, (1995) 2 SCC 577.

[17]  Constitution of India, Arts. 48-A and 51-A(g); M.C. Mehta v. Union of India, (1998) 9 SCC 589.

[18]  E-Waste(Management) Amendment Rules, 2018, G-S-R 261-(E), 2018(India).

[19]  Duncan Clark, What is the “Polluter Pays” Principle?, The Guardian (2-7-2012, 13.34 BST),<https://www.theguardian.com/environment/2012/jul/02/polluter-pays-climate-change>.

[20]  Indian Council for Enviro-Legal Action v. Union of India, (1996) 3 SCC 212.

[21]  Ibid, at 2.

[22]  Plastic Waste Management( Amendment) Rules, 2018, G-S-R 285-(E), 2018(India).

[23]  What India knows about E-waste, Toxics Link, September 2016.

[24]  Indian Constitution, Art. 243-W.

[25]  (1998) 2 SCC 416.

[26] Puja Sawhney et al., Best Practices for E-waste Management in Developed Countries, August 2008.

[27]  US Government Accountability Office, GAO-08-1044, Electronic Waste: EPA Needs to Better Control Harmful US Exports Through Stronger Enforcement and More Comprehensive Regulation (2008).

[28]  Rakesh Kumar, The Problem of Electronic Waste, The Telegraph Online Edition (26-4-2018) <https://www.telegraphindia.com/opinion/the-problem-of-electronic-waste/cid/1465497>

[29]  Ibid.

[30]  Okopol GmbH Inst, for Envtl. Strategies, The International Institute for Industrial Environmental Economics at Lund University & Risk & Policy Analysts, The Producer Responsibility Principle of the WEEE Directive (19-8-2007) <http://ec.europa.eu /environment/waste/weee/pdf/ final_rep_okopol>.

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