A quick analysis of the New MoEF Notification dated Feb 4, 2011 S.O. 249(E), as per Indian Centre for Plastics in Environment (ICPE)
The Law points
The original September 2, 1999 Notification had taken recourse of Section 3 and 25 of the Environment Protection Act, 1986 (deals with Municipal Solid Waste). The Draft Notification dated September 17/18, 2009 included Sections 6, 8 and 25 of the Environment Protection Act, 1986, dropping Section 3. Section 3 deals with the MSW while Section 6 and 8 deals with Hazardous Waste. ICPE in its appeal dated January 11, 2011 to MoEF had requested to drop the Sections 6 and 8 from the proposed notification.
Final Notification - MoEF has included Section 3 and retained Section 6 alongwith Section 25, dropping the Section 8. We understand that Section 8 is more objectionable with respect to plastic waste in the MSW. The implication of including Section 6 requires detailed analysis (by legal experts).
B. Clause 3 (b) Definition of Carry Bag has been altered and all plastic bags used to carry commodities, including self carrying features have been included.
This would imply that even the small bags used to pack and deliver lentils, sugar, sooji, curd, loose milk etc. at retail shop and elsewhere shall have to be of 40 micron thickness or more. Also, liners used for various types of large bags would be required to follow the Rule. Moreover, each of these bags should have the printed declaration. This is a huge deviation from the concept implied in the draft notification. All types of plastic bags used for different types of packaging by the entire Industry has been brought under the Rule. This requires appropriate deliberation among the Industry Members.
C. Clause No.5 - Conditions
· In sub-clause (a) it is mentioned that carry bags shall either be white or made of …….……..permitted pigments and colorants.
Here, the Ministry has made some changes and in doing so it has made the subject little ambiguous - whether carry bags made with virgin plastic without any added pigments would be allowed – is not clear.
· In the sub-clause (b) carrying of foodstuffs in Compostable Plastics has been prohibited. (In the Final Draft Notification, MoEF had made a change and had included compostable plastics in a category allowing these types of bags to be used in contact with food items. ICPE had objected to it and in the final notification, MoEF has made necessary correction)
· In the sub-clause (d) a special clause has been included prohibiting use of sachets using plastic material for storing and packaging of gutka, tobacco and pan masala. This maybe considered as a replacement of the clause 5 (f) in the original draft notification of 17th September, 2009, which prohibited use of all types of laminated plastics (for the packaging of all types of products). A detailed analysis of this particular clause has to be made by the Industry.
D. Clause 6 – Plastics Waste Management
· A major objectionable clause was introduced in the Final MoEF Draft Notification making the manufacturers responsible jointly with the civic bodies for collection of waste. This liability (collection of waste) has been dropped in the Final Notification.
However, the manufacturers, individually or collectively, will be liable for financing the Municipalities for setting up of plastic waste collection centres as a part of its Extended Producers Responsibility (EPR).
· In the sub-clause (h) of Clause 6, the Notification has recognized the importance of use of plastics waste in road construction and co-incineration (this should have been ‘co-processing in cement kiln’).
E. Under Clause 8 – Marking or Labelling, the liability of printing has been for providing basic information of the manufacturer in each bag/packets. There is no compulsion for printing the recycling logo in Multilayer packets. However, in case of recycled bags, the identification as well as recycling code as per Standards is to be printed.
F. Under Registration of Manufacturers and Recyclers, the conditions have been made stringent. Any unregistered unit cannot legally operate. However, it is not very clear about the renewal status for existing registered units.
G. Under Clause 10 – Explicit Pricing of Carry Bags, all other proposals made in the Final Draft Notification have been dropped except that no carry bags would be made available free of cost by retailers to consumers.
H. Under Clause 11 – The State Level Advisory Board will monitor the implementation of these Rules. In the State Level Advisory Board, Expert Member from Industry and academic institution has been included along with Members from Pollution Control Board, Urban Development Department, Department of Environment, Urban Local Body and NGO. Provision for inviting other Experts also has been kept. Frequency of the State Level Advisory Board Meeting has been kept atleast once a year.
Considering some issues mainly on the definition of Carry Bags and for some other issues, it is required that Industry and Association Members discuss and deliberate on this.