The Plastic Waste Management Rules need to be given effect to ensure that the “Polluter Pays” principle is fully implemented: High Court of Delhi

IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision: 12th May 2021 W.P.(C) 5191 2021 & CM APPL. 15949 2021 CEMENT MANUFACTURERS ASSOCIATION ORS. Through: Dr. Abhishek Manu Singhvi & Petitioners Mr. Pinaki Misra Sr.Advocates with Ms. Vanita Bhargava Advocate. UNION OF INDIA THROUGH: SECRETARY MINISTRY OF ENVIRONMENT FORESTS CLIMATE CHANGE ANR. Respondents Through: Ms. Nidhi Raman CGSC with Ms. Nidhi Mohan Parashar GP Mr. Zubin Sengh and Mr. Vikrant Kumar Advocate for Respondent No.1 UOI. Mr. Balendu Shekhar Advocate for Respondent no.2 CPCB with Ms. Divya Sinha Scientist from CPCB JUSTICE PRATHIBA M. SINGH Prathiba M. Singh J.This hearing has been done through video conferencing. The Petitioners have filed the present petition challenging the impugned Standard Operating Procedure hereinafter “SOP”) Registration of Producers Importers & Brand Owners under the Plastic Waste Management Rules 2016 dated March 2021 issued by the Central Pollution Control Board hereinafter ‘CPCB’). The notice for registration under the SOP issued on 6th April 2021 by the CPCB is also under challenge. W.P.(C) 5191 2021 The case of the Petitioners is that it is an association of several cement manufacturers who together have a market share of more than 87% in India. According to them the impugned SOP and the notice for registration dated 6th April 2021 are impractical inasmuch as there are various obligations imposed on the Petitioners. Vide order dated 6th May 2021 this court had issued notice in the matter and directed the ld. Counsel for the Union of India to place their stand in the matter on record. The counter affidavit has been received and is on record. Rejoinder to the same has also been filed by the Petitioners which is stated to be under objections however the same has been emailed to the Court Master. The Registry to bring the same on record. Today Dr. Abhishek Singhvi along with Mr. Pinaki Misra learned Senior Counsels submit that under the Plastic Waste Management Rules 2016 an Action plan was issued in 2019. However thereafter for the purpose of implementing the said Rules by prescribing the EPR i.e. Extended Producers Responsibility a Draft Guidelines Document was also put up in 2020 by the Ministry of Environment Union of India. They submit that various industries have given their representations and comments on the same including the Petitioners. The said Draft is currently under the consideration of the Union of India. Though it there was an Action plan of 2019 under the Plastic Waste Management Rules 2016 since the final platform and the modalities for implementation of the said Rules have not yet been finalised the issuance of the SOP and the action of the Respondents of bringing the same into effect from 15th May 2021 is not justified and is onerous on the W.P.(C) 5191 2021 Petitioners. Ld. Senior Counsels submit that there is a huge difference between the Draft Action Plan of 2019 and the present notified SOP and hence bringing the same into effect puts an enormous responsibility upon the Petitioner as there is a lack of clarity in the SOP itself. On the other hand on behalf of the CPCB Mr. Balendu Shekhar ld. counsel submits that the CPCB is merely a regulatory body. Under Rule 9(2) of the Plastic Waste Management Rules 2016 the responsibility is of the producers and they are under an obligation to file their Form 1’s for registration as producer or as brand owners. He further submits that as a part of the Form 1 an action plan for collection of the plastic waste has to be submitted by the Petitioners and other industries and the SOP does not notify anything new. He submits that since 2016 when the Plastic Waste Management Rules were framed for one reason or the other the Plastic Waste Management Schemes are continuously being postponed by the industry and proceedings are also pending before the National Green Tribunal in this regard. In order to expedite and give effect to the Rules the CPCB exercising its powers under the Act has notified the present SOP. On behalf of the Union of India Ms. Nidhi Raman ld. counsel submits that the clarification which was issued by the Ministry of Environment dated 17th January 2018 was merely directing that the regulatory body CPCB would not take any action till further orders of the Ministry of Environment. However thereafter a Committee was constituted which had submitted a report and had given its recommendations. 10. She submits that pursuant to the said report the Draft Guidelines of 2020 had been put up. Insofar as the Draft Guidelines are concerned the W.P.(C) 5191 2021 Ministry of Environment had a meeting on 24th March 2021 with various stakeholders including the Petitioner and the Ministry would require two more months to finalise the same. 11. Heard ld. senior counsels and for ld. Counsels appearing for the parties concerned and perused the record. 12. There is no doubt that the Plastic Waste Management Rules need to be given effect to in order to ensure that the “Polluter Pays” Principle is fully implemented and the industries do take care of the pollution that is being created by their actions and their responsibilities qua the same are also duly prescribed and managed. 13. However there ought to be clarity in the manner in which the implementation of the Plastic Waste Management is to take place. The chronology of events in this case clearly shows that in 2016 i.e. when the Plastic Waste Management Rules were notified the Government had constituted a committee in October 2017 to evaluate the implementation of the said Rules. It was in the context of the said committee being constituted that the clarification dated 17th January 2018 was issued. The same reads as “OFFICE MEMORANDUM Sub: Notices being issued by State Pollution Producer Importer Brand owners under Extended Producers Responsibility of the Plastic Waste Management Rules 2016. The Ministry of Environment Forest and Climate Change has Notified Plastic Waste W.P.(C) 5191 2021 Management Rules 2016 vide notification dated 18th March 2016. 2. Ministry has received a number of suggestions comments regarding the Rules and also requests for clarifying a number of issues related to the Rules. The Ministry has constituted a committee to deliberate on the issues raised by the plastic waste Management Rules 2016 and solid Waste Management Rules 2016. 3. It has come to the notice of the Ministry that several State Pollution Control Boards Pollution Control Committee have issued notices to the “Producers” for not submitting modalities for waste collection system based on EPR Action Plan for setting up plastic waste management system obtaining authorization registration etc. Since the committee constituted by the Ministry has yet to finalize its report and submit to the Ministry SPCBs PCCs are advised not to pursuant to the notice issued by them until further orders of the Ministry. Competent Authority” further action against the approval of issue with Thereafter as per the Union of India’s submission the Committee had submitted its report in 2018 pursuant to which the PWA Amendment of 2018 was notified. The Draft Guidelines have now been issued in 2020. It is not in dispute that comments have been received on the said Draft from the industry and various stakeholders. 14. The Draft Guidelines contemplate the creation of a national platform for registration of the producers importers and brand owners as also other W.P.(C) 5191 2021 stakeholders. It also contemplates creation of a uniform EPR framework for the entire country which ought to be brand and geography neutral. The Draft Guidelines also provide for a graded approach to be taken in respect of the plastic waste management. 15. Since the Union of India’s stand today clearly is that the Draft Guidelines which are published are still to be notified by the Ministry of Environment and stakeholders consultation is going on the following directions are issued: i) Insofar as the Draft Guidelines are concerned the Ministry of Environment shall after interacting with all the stakeholders within a period of two months i.e. by 31st July 2021 notify the Plastic Waste Management Amendment Rules 2021. The said Rules would take into consideration the suggestions made by the various stakeholders and shall also establish a framework for Plastic Waste Management ii) Insofar as the Petitioner’s members are concerned the Action plan in terms of Form 1 for collecting and for the disposal of plastic waste etc. shall be submitted in terms of the Rules which are currently existing and in compliance with the Action plan of 2019. iii) To the extent that there is any inconsistency between the Action plan of 2019 and the present SOP all members of the Petitioner association would make an endeavour to submit their plans to the best extent possible. However until and unless the final Waste Management Rules 2021 are notified by the Ministry of Environment no coercive steps shall be taken against the Petitioner and their members for violation of the SOP under challenge. W.P.(C) 5191 2021 16. At this stage it is submitted by Mr. Balendu Shekhar ld. Counsel for CPCB duly instructed by Ms. Divya Sinha from the CPCB that there are only 4 cement industries that have submitted their action plan as of today. Ld. counsel for the Petitioner disputes the same and submits that 16 cement manufacturers have submitted their Action plans. 17. Considering the same the Petitioner association as also its members shall submit their respective Action plans on or before 1st July 2021 under the existing regime sans the SOP under challenge. If any manufacturers have already submitted their Action plan the same shall be processed for registration under the existing regime without insisting upon the additional conditions as imposed in the SOP. 18. The submission of an action plan by the Petitioners members would be without prejudice to their rights and contentions in the present petition. 19. A status report shall now be filed by 10th August 2021 by the Petitioners its members and the Ministry of Environment showing the progress in terms of the directions given above. Responses thereto shall be filed at least two weeks before the next date. 20. List on 24th August 2021. The digitally signed copy of this order duly uploaded on the official website of the Delhi High Court www.delhihighcourt.nic.in shall be treated as the certified copy of the order for the purpose of ensuring compliance. No physical copy of orders shall be insisted by any authority entity or litigant. PRATHIBA M. SINGH MAY 12 2021 W.P.(C) 5191 2021 

Summary: There is no doubt that the Plastic Waste Management Rules need to be given effect to, in order to ensure that the “Polluter Pays” Principle is fully implemented and the industries do take care of the pollution that is being created by their actions, and their responsibilities qua the same are also duly prescribed and managed. This was held in CEMENT MANUFACTURERS ASSOCIATION &amp; ORS. v. UNION OF INDIA THROUGH: SECRETARY MINISTRY OF ENVIRONMENT FORESTS CLIMATE CHANGE [W.P.(C) 5191/2021] in the High Court of Delhi by a single bench consisting of JUSTICE PRATHIBA M. SINGH. Facts are that the Petitioners are an association of several cement manufacturers, they have filed a petition challenging the Standard Operating Procedure, for Registration of Producers, Importers &amp; Brand-Owners, under the Plastic Waste Management Rules 2016 (as amended from time to time), dated March 2021, issued by the Central Pollution Control Board as according to them, the impugned SOP and the notice for registration are impractical as there are various obligations imposed on the Petitioners. The counsel for the petitioners submitted that a Draft Guidelines Document was also put up in 2020 by the Ministry of Environment, Union of India, wherein various industries have given their representations including the Petitioners. Since the final platform and the modalities for implementation of the said Rules have not yet been finalized, the issuance of the SOP and bringing the same into effect is not justified. The counsel appearing for the counsel for defendants submitted that,  the CPCB is merely a regulatory body. Under Rule 9(2) of the Plastic Waste Management Rules 2016, the responsibility is of the producers and they are under an obligation to file their Form-1’s for registration as producer or as brand owners.  The court made reference to the Plastic Waste Management Rules that were notified, by the Government who had constituted a committee in October 2017, to evaluate the implementation of the said Rules. The government had notified a clarification in regards to the same which had stated as under, “Since the committee constituted by the Ministry has yet to finalize its report and submit to the Ministry, SPCBs/PCCs are advised not to initiate further action against ‘producers’ pursuant to the notice issued by them until further orders of the Ministry. This issue with the approval of the Competent Authority.” On inspection of the draft guidelines notified by the Union of India in 2020, the court made the following observation, “The Draft Guidelines contemplate the creation of a national platform for registration of the producers, importers and brand owners, as also other stakeholders. It also contemplates the creation of a uniform EPR framework for the entire country which ought to be brand and geography neutral. The Draft Guidelines also provide for a graded approach to be taken in respect of the plastic waste management.”