Cement Manufacturers Association & Ors. v. Union of India

1. This hearing has been done through video conferencing.

2. The Petitioners have filed the present petition challenging the impugned Standard Operating Procedure (hereinafter, “SOP”) for Registration of Producers, Importers & Brand-Owners (PIBOs), under the Plastic Waste Management Rules 2016 (as amended from time to time), 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. 2021:DHC:1572

3. 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.

4. 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.

5. 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.

6. Today, Dr. Abhishek Singhvi along with Mr. Pinaki Misra, learned Senior Counsels, submit that under the Plastic Waste Management Rules, 2016 (as amended from time to time), 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 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.

7. 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.

8. 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.

9. 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 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 under: “OFFICE MEMORANDUM Sub: Notices being issued by State Pollution Control Boards/Pollution Control Committees to the Producer/Importer/Brand owners under the clause 9 (Extended Producers Responsibility (EPR)) of the Plastic Waste Management Rules, 2016. The Ministry of Environment, Forest and Climate Change has Notified Plastic Waste 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 stakeholders relating to 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.