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Is it time to reform toxic industrial waste management law?

In the past weeks, one of the big news stories that received much media and public attention was the police raid on an electronic waste sorting and recycling plant in Chachoengsao Province. The incident was the first of a number of raids on many other similar plants in Chachoengsao Province and Latkrabang Industrial Estate, including seven containers in Laem Chabang seaport with smuggled electronic waste from Hong Kong and Japan.
A number of the raided plants were found to have violated the conditions of their factory operating licences. Hazardous waste disposal did not meet the official standards, meaning that the large quantities of hazardous materials in the electronic and industrial waste, such as iron, lead, cadmium, mercury, chromium and nickel could cause environmental contamination and affect the environment and the people’s health.
Photo from INESby(CC0)
Sources from the Customs Department stated that part of the problem arose from the fact that several hundred thousand tons of electronic waste from all over the world had been left in Hong Kong after China imposed a ban on the import of waste. Investors therefore came to establish recycling plants in Thailand. After separating out recyclable and usable materials, these were returned to China, while non-recyclable waste was put into sacks and secretly dumped in landfills in Thailand.
According to the Department of Industrial Works (DIW), in 2017 Thailand had over 60,000 tons of electronic waste. Among this was 7,400 tons from domestic industries while the other 53,000 tons were imported. At present Thailand has 148 plants that hold permits for electronic waste processing and disposal including waste sorting plants, waste processing and disposal plants and precious metal recovery plants. Most of the imported waste for recycling came from Japan, Hong Kong and Singapore. 98% was mobile phones, electronic circuit boards and computers.
DIW issued waste import permits to seven plants with quotas to import around 117,000 tons of waste annually. Among these, five plants were found to be contravening the conditions of their permits. Such figures reflect that Thailand currently imports a high volume of electronic waste. The important question that raises concerns is whether the state’s laws and mechanisms are prepared and efficient for handling such a large volume of industrial waste so as to prevent long-term impacts on the environment and health of the people.
Regarding the smuggling of electronic waste, DIW explained that electronic waste or E-waste is easily smuggled into Thailand due to legal loopholes, problems with law enforcement, weak penalties and the relaxation of DIW regulations to facilitate trade liberalization and the businesses of both Thai and foreign investors. Currently Thailand’s Hazardous Substance Act B.E. 2535 (1992) strictly controls the import of electronic waste: importers must obtain permits to import hazardous materials following procedures according to the Basel Convention.
In addition, DIW allows a recycling plant to import electronic waste only if it is used as raw materials in its own plant. Therefore, the problem of the unauthorized importation of electronic waste may partly be caused by false customs declarations. As the Basel Convention, to which Thailand has been a party since 1998, specifies that cross-border movements of hazardous waste must receive the formal consent of state agencies of both the country of origin and of destination, there has been lobbying to import electronic waste.
If the governments of the two countries can agree, electronic waste, as defined in the Convention, can be imported and disposed of in the country of destination. For instance, China might allow its toxic waste to be sent to Thailand for processing. The raids on illegal plants with false customs declarations reflect a problem caused by loose regulations and laws, together with possible corruption and kickbacks among officials, politicians and businesspeople.
These facts point to the following problems concerning the laws and agencies responsible for monitoring electronic waste imports and toxic industrial waste management.
  1. Thailand is at high risk of having to face more problems if imports of electronic waste and hazardous waste increase. The free trade agreements that Thailand has made with several countries create the obligation to exempt from import duty many goods including chemical waste and electronic waste. In the past, the control systems of Customs used risk management methods of random inspection only in cases of suspicion about a company’s background. Therefore there was no physical inspection of most imported goods. The current target for inspection is less than 5% of imported goods and inspections will be reduced in line with the policy to promote trade liberalization.
  2. Weak law enforcement is a problem. The agency that gives permits for factory operations and the import of hazardous waste is the DIW. Provincial industry offices have the authority to monitor factory operations. When people file complaints against smells, polluted water and other forms of pollution caused by factory operations, the procedure under the Factory Act B.E. 2535 (1992) is to issue an order for the violator to correct factory operations, or if it is a case that causes serious impacts, an order might be issued to temporarily halt operations in whole or in part. After corrections are made within the given time, operations usually return to normal.
    So it often appears that the trouble to the people has not been fixed and some factories even repeatedly violate the law. This observation conforms to a study by the Thai National Health Foundation and the Thailand Research Fund on the problems of industrial waste management. Therefore it is definitely appropriate to reform the laws regarding toxic industrial waste management by specifying that environmental agencies such as the Pollution Control Department (PCD) should have a direct role in monitoring factory operations rather than merely reporting the problems and sending letters to the Ministry of Industry to enforce the law, as is the case now.
  3. The Factory Act B.E. 2535 (1992) sets very low penalties. There is no set minimum penalty. In addition, the Act defines a violation as an offense that can be subject to a spot fine. So when pollution is released or industrial waste is dumped without being treated as set by law, although the maximum penalty is set at no more than 200,000 baht, in practice many cases end in a spot fine of some tens of thousands only. When it is like this, factory operators are not afraid of the law and see breaking the law as economically worthwhile. If the law is to be honoured, penalties must be increased with a set minimum and repeal of the provision that allows spot fines.
  4. The fact that DIW identified that there is lobbying for importing hazardous waste under the Basel Convention, and there may be corruption and kickbacks among officials, politicians and businesspeople, shows that there may well be lobbying especially when there is a lack of good governance among decision makers.
  5. Thailand does not yet have a law regarding a recovery system for waste electrical and electronic equipment (WEEE) from inside the country. This is still not managed properly. Most is dismantled in junk shops, with the valuable parts sold and the rest thrown back into the environment with no processing of the hazardous materials in it. The PCD has tried to push for a bill on electronic waste management for over a decade. It is now time that the government gave priority to this legislation based on the principle of Extended Producer Responsibility (EPR): the producers and importers of electrical and electronic equipment are responsible for recovery so that WEEE will be properly processed.
The news reports about the raids on the plants that smuggle electronic waste into the country help reflect a number of chronic problems. During the past four years we have spoken a lot about reforms; a reform council and various reform committees were established with large budget allocations. However, no clear path can be seen that leads to the reform of laws and systems that will control toxic industrial waste management.
Is it time for us to make a serious move toward solving the problems that have been in front of our eyes for years? This is especially the case with the issues of setting minimum penalties for violators of the Factory Act and repeal of the provision that allows spot fines for the offense of dumping industrial waste or releasing toxic substances that had not been processed according to legal standards. In addition, institutional reform is needed that mandates an environmental agency to monitor factories which is separate from the DIW as the agency that gives permits, which is the universal practice in other countries.