TAX INCENTIVES ON WASTE ELECTRICAL

AND ELECTRONIC EQUIPMENT MANAGEMENT

IN THAILAND

BY

MR TINNAPAT SUMLEEON

A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE

REQUIREMENTS FOR THE DEGREE OF MASTER OF LAWS

IN BUSINESS LAW (ENGLISH PROGRAM)

FACULTY OF LAW

THAMMASAT UNIVERSITY

ACADEMIC YEAR 2014

COPYRIGHT OF THAMMASAT UNIVERSITY

TAX INCENTIVES ON WASTE ELECTRICAL

AND ELECTRONIC EQUIPMENT MANAGEMENT

IN THAILAND

BY

MR TINNAPAT SUMLEEON

A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE

REQUIREMENTS FOR THE DEGREE OF MASTER OF LAWS

IN BUSINESS LAW (ENGLISH PROGRAM)

FACULTY OF LAW

THAMMASAT UNIVERSITY

ACADEMIC YEAR 2014

COPYRIGHT OF THAMMASAT UNIVERSITY

(1)

Thesis Title TAX INCENTIVES ON WASTE

ELECTRICAL AND ELECTRONIC

EQUIPMENT MANAGEMENT IN

THAILAND

Author Mr. Tinnapat Sumleeon

Degree Master of Laws

Department/Faculty/University Business Law Program (English Program)

Faculty of Law

Thammasat University

Thesis Advisor Professor Amnat Wongbandit, Ph.D.

Academic Years 2014

ABSTRACT

The living standard of today’s world has come a long way with technological

developments whereby increasingly advanced technology trends to upgrade and

change the out-of-date electronic devices to new and more comfortable electronic

device to support daily life. It is increasing at an enormous amount of end-of-life

electrical and electronic equipment (EEE) which eventually becomes electronic waste

(e-waste)/ waste electronic and electrical equipment (WEEE). The enormous rate of

WEEE stream that has been generated is fueled by the rapid economic growth and

increase demand for EEE is becoming global crisis. Regarding to the environmental

management plan, it objects to conserve and recover the resources and environmental

quality. The main objectives are to conserve and recover the soil, forest and water

resources and water pollution, air pollution, sound pollution and the current waste

situation. However, pollution caused by the hazardous wastes has not yet been

considered as an important matter. The reason is because Thailand does not have

direct or specific legal measures and legislations to manage and control the WEEE

and the existing legal measures on WEEE management are still not effective.

Consequently, this poor management of WEEE has led to the danger of

environmental and human health because the materials contained in the EEE consists

of heavy metals such as lead, mercury, cadmium, Brominated Flame Retardants

(2)

(BFRs), plastics, beryllium which are directly and indirectly affecting the

environment and including short-term and long-term human health. Even though

Thailand is now trying to announce legal measures in controlling the generating of

WEEE at the present, these measures might probably be close to the standard of

WEEE controlling and management but it is yet to be covered on how Thai

government could be more assertive in conserving natural resources and preventing

hazardous effects through reusing, recycling and disposal of WEEE by the current

inefficient waste disposal.

In Thailand, the legal measures on WEEE management and other existing

provisions may not be efficient enough to support the government in dealing with the

WEEE stream problem presently due to the indirect legal provisions applicable. In

addition, most of the relevant legal provisions on the matter which are being enforced

could be considered as control and order strategy which in order to conserve the

environment may require more action than the standard requirement. In conserving

the environment, the government needs the individuals’ participation by using tax

incentives measures to persuade the individuals to join the environmental

conservation campaign. Moreover, the government should provide proper legal

measure to monitor and manage WEEE problem in WEEE life-cycle. Regarding to

this, there are provisions stipulated in the Draft of Electrical Equipment Management

and Electronic and Other Wastes Act B.E. …, which introduced by the Pollution

Control Department, that would be a solution to tackle the WEEE problem.

Therefore, this thesis will go through international, foreign and domestic legal

principles and regulations relating to the WEEE management and analyze the

possibilities and enforceability of the relating principles in handling the problems,

including method in solving and improving any relating legal principles to WEEE,

especially on tax and economic measures for applying and providing incentives for

electronic waste management process.

Keywords: Electronic Waste, Waste Electronic and Electrical Equipment, E-waste,

WEEE, Incentives, Tax Incentives.

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ACKNOWLEDGEMENTS

I, the author, owe a great debt to many people who contribute their

valuable time to assist me to complete this thesis.

Firstly, I would like to thank Professor Dr. Amnat Wongbandit, my

supervisors for his comments, suggestions and encouragement on an earlier draft until

completion of this thesis. Moreover, I would like to thank Dr. Prasert Tapaneeyangkul

for dedicating his valuable time to consider and provide precious advice, additional

ideas and comments as well as the important persons, Dr. Chao Nokyoo and

Dr. Munin Pongsapun, who has dedicated their time to provide the greatest support

and suggestions.

Secondly, I would like to thank my family. They have always given me

the inspiration and motivation to accomplish this thesis. Particularly, I would like to

thank my mother for her best encouragement and supporting me to study in

Thammasat University, also my father for has always given me the motivation to earn

this degree. I deeply owe them for all supporting and I would like to dedicate the

success of this thesis to them.

Thirdly, I have gained the precious friendship and encouragements from

all of my friends who always support and motivate me to complete this thesis.

Nevertheless, I would like to thank the staffs of Library of Faculty of Laws,

Thammasat University, for always being kinds and helpful on assisting me to seek for

the materials.

Lastly, any errors or mistakes remaining in this paper are entirely mine.

Mr. Tinnapat Sumleeon

Thammasat University

Year 2014

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TABLE OF CONTENTS

Page

ABSTRACT (1)

ACKNOWLEDGEMENTS (3)

LIST OF TABLES (8)

LIST OF FIGURES (9)

LIST OF ABBREVIATIONS (10)

CHAPTER 1 INTRODUCTION 1

1.1 Background and Problems 1

1.2 Hypothesis 4

1.3 Objective of Study 4

1.4 Scope of Study 5

1.5 Methodology 5

1.6 Expected Result 6

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CHAPTER 2 PROBLEMS AND METHODOLOGY OF WASTE 7

ELECTRONIC AND ELECTRICAL EQUIPMENT MANAGEMENT

IN THAILAND

2.1 Problems and electronic waste management in Thailand 7

2.1.1 Definition of E-waste/WEEE 9

2.1.2 Types of WEEE 12

2.1.3 Components of Electronic and Electrical Equipment 14

2.1.4 Hazardous Affect Caused WEEE 16

2.1.5 Methodology on WEEE Management 19

2.1.5.1 Sources of WEEE 19

2.1.5.1.1 Industry 20

2.1.5.1.2 Household 21

2.1.5.1.3 WEEE International Smuggling Dumping 22

2.1.5.2 WEEE Management Methodology 22

2.1.5.2.1 Sorting or Separation 23

2.1.5.2.2 Storage 23

2.1.5.2.3 Collection 23

2.1.5.2.4 Transportation or Transferring 24

2.1.5.2.5 Treatment and Disposal 24

2.2 Economic Instruments 27

2.2.1 Taxation 31

2.2.2 Purposes of Taxation 32

2.2.3 Taxation Policies 34

2.2.4 Legal Concept in Solving Environmental Problem 35

a). Command and Control Strategy 35

b). Economic Strategy 37

2.2.5 Environmental Conserving Principles 37

2.2.5.1 Polluter Pays Principle 37

2.2.5.2 Precautionary Principle 38

2.2.6 Environmental Taxation 39

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CHAPTER 3 TAX MEASURES AND LEGAL PRINCIPLES 40

IN WEEE MANAGEMENT IN INTERNATIONAL AND

FOREIGN LAWS

3.1 United Nations Environmental Program (UNEP) 40

3.2 Provisions on WEEE Management under EU Directives 43

3.2.1 Problem on WEEE Management in EU 43

3.2.2 Legal Measure on WEEE Management in EU 51

3.2.3 Plan on Applying Tax Measures on Solving WEEE 54

Management in EU

3.3 Provision on WEEE Management under Japanese Directives 56

3.3.1 Fundamental Law 56

a). Fundamental Law for Establishing a Sound Material-Cycle 56

Society (Basic Framework Law), April 2001

3.3.2 A General Framework 59

a).Waste Disposal and Public Cleansing Law 59

(Waste Management Law), April 2001

b). Law for Promotion of Effective Utilization of Resources, 60

April 2001

3.3.3 Product Specific Laws 61

a). Containers and Packaging Recycling Law, April 2000 61

b). Home Appliances Recycling Law, April 2001 62

c). Green Purchasing Law, April 2001 63

3.3.4 Problem of WEEE Management in Japan 64

3.3.5 Plan on Applying Tax Measures on Solving WEEE 66

Management in Japan

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CHAPTER 4 TAX MEASURES AND LEGAL PRINCIPLES 68

IN WEEE MANAGEMENT IN THAILAND

4.1 Environmental Legal Measure relating to WEEE Management 68

4.1.1 The Enhancement and Conservation of National 68

Environmental Quality Act B.E. 2535

a). Hazardous Wastes Management Provisions 69

4.1.2 Public Health Act B.E. 2535 70

4.1.3 Determining Plans and Process of Decentralization to 71

Local Government Organization Act B.E. 2542

4.1.4 Factory Act B.E. 2535 71

4.1.5 The Draft of Electrical Equipment Management and 73

Electronic and Other Wastes Act B.E. …

4.2 Tax Measures Relevant to Waste Electrical and Electronic Equipment 77

4.2.1 Excise Tariff Act B.E. 2527 78

4.2.2 Revenue Code 78

4.2.2.1 Royal Decree issued under Revenue Code on Revenue 78

Exemption (Edition 297) B.E. 2539

4.2.2.2 Royal Decree issued under Revenue Code on Cost of 79

Wear and Tear and Depreciation (Edition 145) B.E. 2527

4.2.3 Investment Promotion Act B.E. 2520 79

4.2.3.1 Waste Disposal Business 80

4.2.3.2 Recycle Business 80

4.3 The Analysis of Existing Thai Legislations 81

CHAPTER 5 CONCLUSIONS AND SUGGESTION 83

5.1 Conclusion 83

5.2 Suggestion 84

REFERENCES 87

BIOGRAPHY 92

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LIST OF TABLES

Tables Page

Table 1 The quantity of hazardous waste (including WEEE and 8

infectious waste) from year 2012 - 2013

Table 2 Summary of quantity of WEEE stream in 2007 and the expected 8

result of WEEE stream during year 2008 - 2017

Table 3 Components contained in a PC 14

Table 4 Components contained in EEE 16

Table 5 Quantity estimation of WEEE sourced for household sector in 2013 21

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LIST OF FIGURES

Figures Page

Figure 1 The flow chart of source of WEEE 20

Figure 2 WEEE Management Hierarchy 44

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LIST OF ABBREVIATIONS

Abbreviations Terms

DfE Design for Environment program

EEE

E-waste

Electrical and Electronic Equipment

Electronic waste

EIs Economic Instruments

EPR Extended Producer Responsibility

MCV

OECD

PCD

PPP

RoHS

SCP

UNEP

WEEE

Maximum Concentration Values

Organization for Economic Cooperation

and Development

Pollution Control Department

Polluter Pays Principle

Restriction of Hazardous Substances

Sustainable Consumption and Production

United Nations Environmental Program

Waste Electrical and Electronic

Equipment

1

CHAPTER 1

INTRODUCTION

1.1 Background and Problems

The living standard of today’s world has come a long way with technological

developments whereby increasingly advanced technology trends to upgrade and

change the out-of-date electronic devices to new and more comfortable electronic

device to support daily life. It is increasing at an enormous amount of end-of-life

electrical and electronic equipment (EEE) which eventually becomes electronic waste

(e-waste)/ waste electronic and electrical equipment (WEEE). The alarmingly fast

expansion rate of e-waste that has been generated is fueled by the rapid economic

growth and increase demand for EEE or consumer electronic devices (CEDs) which

emerging as a global crisis. Due to the hazardous effects and toxicity of e-waste, the

problem has become a serious concern.1

In the old days, electrical domestic appliances and electronic products were

made to last, for example refrigerators, washing machines were categorized as luxury

items which were mostly bought by the rich people. However, due to the rapid growth

of the technology and the demands of people, EEE is now having shorter life span

which generally may not last more than five years, which are very evident in

computers, smart phones, laptop and televisions.2 In this regard, EEE manufacturers

are now facing high competitions in the world market; therefore, keeping CEDs

product design and application features would attract consumers to keep with the

trend. According to the product design and new application features that

1 Saphore J.M., Nixon H., Ogunseitan O.A. and Shapiro A. A., (2009), How much e-waste is there in US Basements and attics? Results from a national survey, Journal if Environmental Management, 90. 2 Sthiannopkao S. and Wong M. H., (2012), Handling e-waste in developed and developed countries, Initiatives, Practices, and Consequences, Science of the Total Environment.

2

manufacturers and their technology development teams have introduced to the world,

it turns out the trend of people who keep changing their old devices for being

complimented about being up-to-date, even though the discarded devices are in good

and functional conditions. Nowadays, the trend has become worrisome as there is an

increase in volumes of used or waste electrical and electronic equipment (UEEE or

WEEE) products. Some of the mentioned discarded devices are still usable and can be

sold on the second-hand markets, while most will end up in the rapidly growing

WEEE stream. Additionally, a significant amount of WEEE is also languishing in

storage in basements, garages and attics of many homes around the world.

However, it is difficult to determine a severe situation of WEEE stream flow

since there is serious lack of accurate and reliable WEEE generation data for most

countries. Although many countries have drafted and introduced legislations to

control and regulate the domestic and foreign generation, collection, reusing,

recycling, movement and disposal of such wastes, lack of specific definition and

standards for WEEE and UEEE also render efforts to control imports of WEEE to

become difficult, especially in most Asian countries and African countries. In

addition, Thailand is one of the main sectors of the world in producing electronic and

electrical equipment parts for the world market.3

Due to the increase demand for electrical and electronic equipment or

consumer electronic devices (CEDs), this has led to the increase producing in EEE

production to meet the world demands. However, the increase in demands and

production rate of EEE would lead to the cause of numerous end of life EEE and

becoming WEEEs which are chemically and physically distinct from municipal or

industrial waste as they may contain potent environmental contaminants. They consist

of very complex materials, and most informal recyclers in developing countries,

including Thailand, are lacking the necessary tools and technologies to handle them

effectively without severe consequences to human health and the environment.

Moreover, Thailand does not have any specific Act or legislation in order to solve this 3 Robinson B. H., (2009), E-waste, An assessment of global production and environmental impacts, Science of the Total Environment, pp 183-191

3

WEEE crisis. In contrast, since the Extended Producer Responsibility (EPR) entered

the spotlight as a potential alternative policy for waste management in around 2000,

developed countries such as the Europeans Unions (EU) has been seriously

emphasizing on environmental and human health concerns; therefore, the legislation

on WEEE management has been promoted at an international level. The EU’s Waste

Electrical and Electronic Equipment (WEEE) Directive had incorporated EPR as a

basic principle and was announced in 2003. EU member states are required to

accordingly ensure that their own domestic regulations are compatible with it.

Similar policy tendencies can be found in Asian countries. There are countries

leading the change such as Japan, South Korea and Taiwan, but this thesis would

focus on Japan as the world considers the nation as a leading country in technological

advancements. Japan has been tackling WEEE management since around 2000. The

objective of Japan WEEE management is to reduce the quantity of using the EEE by

proposing responsibilities to both producers and consumers regarding the use of EEE

and WEEE management.

Moreover, in recent years Thailand has been preparing itself to implement new

regulations on WEEE management. However, it is difficult to deny that Thailand is

being strong-armed to keep up with the policy implementation, as exemplified by the

WEEE Directive, of the developed countries and may have failed to properly examine

its own domestic situations. This failure could lead to problems in attaining policy

objectives in the future.

In regard to the environmental management plans, its objective is to conserve

and recover the resources and environmental quality. The main objectives are to

conserve and recover the soil, forest, water resources, water pollution, air pollution,

sound pollution and the current waste situation. However, pollution caused by

hazardous wastes has not yet been considered as an important matter. The reason is

because Thailand does not have direct or specific legal measures and legislations to

manage and control the WEEE and the existing measures of WEEE management are

still not effective. Consequently, this poor management of WEEE has led to the

4

danger of environmental and human health because the materials contained in the

EEE consists of heavy metals such as lead, mercury, cadmium, Brominated Flame

Retardants (BFRs), plastics, beryllium which are directly and indirectly affecting the

environment and including short-term and long-term human health. Even though

Thailand is now trying to announce legal measures in controlling the generation of

WEEE management at present, these measures might probably be close to the

standard of WEEE controlling and management but is yet to be covered on how the

Thai government could be more assertive in conserving natural resources and

preventing the hazardous effects through reusing, recycling and disposal of WEEE by

the current inefficient waste disposal company.

1.2 Hypothesis

In Thailand, the legal measures on WEEE management and other existing

provisions may not be efficient enough to support the government in dealing with the

WEEE stream problem presently due to the indirect legal provisions applicable. In

addition, most of the relevant legal provisions on the matter which are being enforced

could be considered as control and order strategy which in order to conserve the

environment may require more action than the standard requirement assigned by the

government. The government prefers individual participation by using tax incentives

in order to persuade individuals to join the environmental conservation campaign.

Moreover, the government is required to provide proper legal measure to monitor and

manage WEEE problem. In regards to the proper measures, the provisions stipulated

in the Draft of Waste Electrical and Electronic Equipment Management and Other

Wastes Act B.E. …, introduced by the Pollution Control Department, may be the

alternative solution to handle with WEEE stream.

1.3 Objective of Study

a. To study domestic legal principles and regulations relating to

electronic waste management and analyze the possibilities and enforceability of the

relating principles in handling the problems.

5

b. To study the international legal principles relating to legal measured on

handling with the cause and effect of electronic waste.

c. To study the method in solving and improving of any relating legal

principles to electronic waste, especially on tax and economic measures for applying

and providing incentives for electronic waste management process.

1.4 Scope of Study

This thesis will study the legal principles, tax measures, and other principles

relating to WEEE management of government sector under Thai laws which are not

as applicable as much as they could be. The study will also emphasize on tax

measures excluding other environmental concerns in order to control and manage

WEEE problems nowadays. The only existing Thai domestic provisions on managing

the WEEE problem are considered as the controlling pattern from the government and

it is not efficiently enforced to its extreme. Therefore, this thesis will study and

suggest new alternative methods, especially in tax and economic instruments, which

can possibly solve the problem of WEEE management directly.

Moreover, this thesis will study international provisions of United Nation on

Environmental Program which has established the world standard of WEEE

management and has also been since updating the solving methods continually in

accordance with the EU Directives and Japanese legal principles that have been

enforced. Moreover, this thesis will study environmental tax provisions and other

legal measures as to be a guideline in connection to apply with Thai legal provisions

for solving problems.

1.5 Methodology

The method of studying this thesis is based on documentary research, mainly

emphasizing on study and analyzing foreign and Thai textbooks, articles, journals,

statutory laws, government publications, scholars’ opinions, international organization

guidance on the topic, information on the internet and other relevant documents. In

6

addition, the comments or suggestions from recognized organizations will also be

collected and studied in this thesis. The obtained information will be applied and

analyzed in order to provide appropriate and practical solutions.

1.6 Expected Result

a. To understand domestic legal principles and regulations relating to

electronic waste management and analyze on possibility and enforceability of the

relating principles in handling the problems.

b. To understand the international and foreign legal principles and

regulations relating to legal measure on handling with the cause and effect of

electronic waste.

c. To understand the solving method and improve any relating legal

principles to electronic waste, especially on tax and economic measures for applying

and providing incentives for electronic waste management process.

7

CHAPTER 2

PROBLEMS OF WASTE ELECTRICAL AND ELECTRONIC

EQUIPMENT IN THAILAND AND MANAGING

METHODOLOGY

2.1 Problems and Electronic Waste Management in Thailand

Due to consumer’s demands to have an ever comfortable and convenient daily

life, the Information and Communication Technology (ICT) has generated the fast

expansion rate of electronic and electrical equipment manufacturing, with advanced

technology and application features4, fueled by the rapid economic growth and

increasing consumer’s demand which is causing the shorter lifespan of electronic and

electrical products.5 The bloom of advanced and well-designed electronic and

electrical equipment causes the upcoming Waste Electrical and Electronic Equipment

(WEEE) stream which keeps dramatically increasing and is becoming a the world

crisis. In light of this, a survey found that the WEEE stream in Thailand has been

increasing as shown in the table 1 hereunder;

4 Ray A., (2008), Waste Management in developing Asia, Can trade and cooperation help? The Journal of Environment & Development, 17(1), pp 3-25 5 Widmer R., Oswald-Krapf H., Sinha-Khetriwal D., Schnellmannc M, and Heiz Boni H., (2005), Global perspectives on e-waste, Environmental Impact Assessment Review, 25, pp 436-458

8

Table 1: The quantity of hazardous waste (including WEEE and infectious

waste) from year 2012 – 20136

Hazardous

Waste

Year, 2012

(Million Tons)

Year, 2013

(Million Tons) Quantity

Total 3.57 3.30 -0.27

Source: Pollution Control Department

Table 1 shows that even though the quantity of the hazardous waste, including

WEEE and infectious waste was reduced from recent year, but the amount of the

hazardous waste that could not be managed was highly remained where most of the

well-managed wastes were only solid wastes and infectious wastes which are

controlled by existing legal provisions. On the other hand, the WEEE which is the

main problem that has caused severe effects to the environment and human health was

not well-managed and WEEE would keep increasing uncontrollably as the

information shown in Table 27 hereunder;

Table 2: Summary of quantity of WEEE stream in 2007 and the expected

result of WEEE stream during year 2008-2017

Year Tons/Year

2007 308,844.72

2008 323,399.19

2009 332,839.33

2010 341,988.74

2011 350,939.12

2012 359,714.26

2013 368,314.44

6 Pollution Control Department, Thailand State of Pollution Report 2013, (Bangkok: Pollution Control Department, 2015) P.2-8 7 Prachachat Online News, available at http://www.prachachat.net/news_detail.php?newsid=1381832557 (last visited November 10, 2014)

9

2014 376,763.66

2015 385,103.46

2016 393.316.71

2017 401,387.19

Source: Pollution Control Department8

Table 2 shows that WEEE requires well-managed professionals and extra care

in order to control the quantity of WEEE stream and in accordance with the avoidance

of leaking of hazardous substances to the environment and causing severe effects to

the environment and human health. Therefore, this thesis will study the problems

caused by WEEE and the methodology of WEEE management as follows.

2.1.1 Definition of E-waste/WEEE

Electronic waste or e-waste is regulated under the 1989 Basel

Convention. The Basel Convention was mainly established as a mechanism to restrict

movement of hazardous wastes and to minimize the generation of hazardous

substances contained in e-waste.9 The definition of “e-waste” has been given by the

Basel Action Network (BAN) which defines e-waste as “encompasses a board and

growing range of electronic devices ranging from large household devices such as

refrigerators, air conditioners, cell phones, personal stereos, and consumer electronics

to computers which have been discarded by their users10”

8 Pollution Control Department. Ministry of Natural Resources and Environment. A Survey on Quantity and Types of Electrical and Electronic Equipment Waste. Bangkok. 9 Zoeteman B. C. J. and Krikke H. R., (2010), Handling WEEE waste flows, on the effectiveness of producer responsibility in a globalizing world, International Journal of Advanced Manufacturing Technology, 47, pp 415-436 10 Puckett J., Westervelt S., Gutierrez R. and Takamiya T., (2005), The digital dump. Exporting re-use and abuse to Africa, Report from the Basel Action Network, Seattle.

10

The definition of e-waste in Thailand is not clearly stated in any

legislation. In regard to this, general meaning of e-waste is defined as:

1. “e-waste” means used electronic device such as mobile phones,

computers, televisions, etc., that have been thrown away.11

2. “e-waste” means discarded electronic appliances such as mobile

phones, computers, and televisions.12

3. “e-waste” means computers, phones and other electronic products

that are thrown away because they are old, broken and etc.13

4. “e-waste” means any discarded electronic or electrical devices or

their parts.14

As a result, the definition of e-waste shall be concluded that e-waste

means electronic or electrical equipment which have been used and thrown away

whether it reaches the end of its lifespan and has to be recycled, recovered, disposed

or reused.

However, the e-waste is officially called as Waste Electrical and

Electronic Equipment or WEEE globally. The definition of “WEEE” is stipulated

under the Directive 2012/19/EU Of The European Parliament and Of The Council of

4 July 2012 on waste electrical and electronic equipment (WEEE) which means

electrical or electronic equipment which is waste within the meaning of Article 3(1)

of Directive 2008/98/EC, including all components, sub-assemblies and consumables

11 http://www.macmillanddictionary.com/buzzword/entries/e-waste.html. 12 http://oxforddictionaries.com/definition/e-waste. 13 http://dictionary.cambridge.org/dictionary/business-english/e-waste. 14 http://dictionary.reference.com/browse/e-waste.

11

which are part of the product at the time of discarding.15 In light of this study, the

term “e-waste” shall be referred as “WEEE” synonymously.

Generally, the word “WEEE” does not directly mean “hazardous

substance” by itself, but WEEE is categorized as one of a “WEEE” which can be

interpreted in many Thai words, but as for the most clear and direct definition of this

study, hereinafter it shall be referred to as “WEEE” which conforms to the global

definition that is generally known. However, the definition of WEEE has not yet been

legally defined in Thai legal terms, but the existing term is hazardous substances that

are defined by Pollution Control Department which is the authority mainly

responsible for managing this kind of waste.

In managing hazardous substances, the people responsible will have to

use the totally different methods from normal waste disposal. The Pollution Control

Department which is responsible in pollution control whereby given the definition of

the “hazardous waste” as only in academic or technical term. The reason is because

there is no any existing legislation states the exact definition of the hazardous waste.

Therefore, the definition of hazardous waste shall mean any waste consisting of or

contaminated with any dangerous substances; for example explosives, flammable

substances, oxidizing agents and peroxides, toxic substances, substances causing

diseases, radioactive substances, mutation causing substances, corrosive substances,

irritating substances, other substances either chemicals or otherwise which may cause

injury to humans, animals, plants, property, or the environment.16 The mentioned

meaning of hazardous substance given by the Pollution Control Department is similar

to the definition of hazardous substances that are states in Section 4 of Hazardous

Substance Act B.E. 253517

15 Article 3 (e) of Directive 2012/19/EU Of The European Parliament And Of The Council Of 4 July 2012 on waste electrical and electronic equipment (WEEE). 16 Pollution Control Department, Ministry of Science, Technology and Environment, Manual of Transportation, Movement and Disposal of Hazardous Waste, (Bangkok: Pollution Control Department, 2000), p.2 17 Section 4 “In this Act, "Hazardous Substance" means the following substance.

12

From the above, the definition of WEEE and its exact meaning has not

been clearly defined and this leads to the lack of efficient practice by departments that

are responsible because the methodology of managing WEEE is required to be

controlled and managed from the ordinary solid waste and infectious waste as the

meaning defines clearly in existing legal provisions. However, the Pollution Control

Department has drafted the Draft of Waste Electrical and Electronic Equipment

Management and Other Wastes Act B.E. … which provides the definition of WEEE

in Section 4 as “electrical and electronic equipment which includes part or partial of

the expired, deteriorated or unwanted mentioned equipment.”18 Thus, the mentioned

definition provided by the Draft of Waste Electrical and Electronic Equipment

Management and Other Wastes Act B.E. … would separate WEEE from solid waste

and infectious waste to better understand and proper management of WEEE since it

has to be especially conducted separately from other types of hazardous waste.

2.1.2 Types of WEEE

Referring to Thai legislations, there is no categorization of WEEE

regarding to the legal definition. On the other hand, the types of WEEE are

categorized under DIRECTIVE 2012/19/EU OF THE EUROPEAN PARLIAMENT

AND OF THE COUNCIL of 4 July 2012 on Waste Electrical and Electronic

Equipment (WEEE) which stipulates 10 types of WEEE as provided in Article 2(1)(a)

and (b), ANNEX I and listed details by the ANNEX II as following,

(1) Explosives (2) Flammable Substance. (3) Oxidizing agent and peroxide. (4) Toxic substance. (5) Substance causing diseases. (6) Radioactive substance. (7) Mutant causing substance. (8) Corrosive substance. (9) Irritating substance. (10) Other substance either chemicals or otherwise which may cause injury to the persons, animals, plants, property, or environments.”. 18 Section 4 of the Draft of Management of Electronic and Electrical Equipment and Other Equipment Act B.E. …

13

1. Large household appliances such as large cooling appliances,

refrigerators, dish washing machines, microwaves and air conditioner appliances.,

2. Small household appliances such as vacuum cleaners, other

appliances for cleaning and irons and other appliances for ironing, mangling and other

care of clothing,

3. IT and telecommunications equipment such as personal computers,

laptop computers, printer units, facsimile machines and all types of telephone,

4. Consumer equipment and photovoltaic panels such as radio sets,

television sets, video cameras, audio amplifiers, musical instruments, and other

products or equipment for the purpose of recording or reproducing sound or images,

including signals or other technologies for the distribution of sound and image than by

telecommunications,

5. Lighting equipment such as luminaires for fluorescent lamps with

the exception of luminaires in households, straight fluorescent lamps and compact

fluorescent lamps,

6. Electrical and electronic tools (with the exception of large-scale

stationary industrial tools) such as drills, saws, sewing machines and equipment for

turning, milling, sanding, grinding, sawing, cutting, shearing, drilling, making holes,

punching, folding, bending or similar processing of wood, metal and other materials,

7. Toys, leisure and sports equipment such as electric trains or car

racing sets, hand-held video game consoles, video games, sports equipment with

electric or electronic components and coin slot machines,

8. Medical devices (with the exception of all implanted and infected

products) such as pulmonary ventilators, nuclear medicine equipment, laboratory

14

equipment for in vitro diagnosis, and other appliances for detecting, preventing,

monitoring, treating, alleviating illness, injury or disability,

9. Monitoring and control instruments such as smoke detector, heating

regulators, thermostats, measuring, weighing or adjusting appliances for household or

as laboratory equipment, and

10. Automatic dispensers such as automatic dispensers for hot drinks,

automatic dispensers for hot or cold bottles or cans, automatic dispensers for solid

products, automatic dispensers for money and all appliances which deliver

automatically all kinds of products.19

2.1.3 Components of Electronic and Electrical Equipment

Materials used in production the EEE, emphasizes on computer as one

of the most operated devices presently, where its parts consist of the list of materials

under the Table 320 as shown hereunder (as the quantity for 1 computer weight 60

IBs.)

Table 3: Components contained in a PC

Material Quantity (weight per percentage)

Plastic 22.9907

Lead 6.2988

Aluminum 14.1723

Germanium 0.0016

Gallium 0.0013

19 DIRECTIVE 2012/19/EU OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 4 July 2012 on waste electrical and electronic equipment (WEEE) which stipulates 10 types of e-waste as provided in Article 2(1)(a) and (b), ANNEX I and ANNEX II. 20 A joint project, Californians against Waste Foundation. Toxic TVs and Poison PCs: California’s biggest environmental crisis that you’ve never heard of. p.10 and infohouse.p2ric.org/ref/30/29310.pdf.

15

Iron 20.4712

Tin 1.0078

Copper 6.9287

Barium 0.0315

Nickel 0.8503

Zinc 2.2046

Tantalum 0.0157

Indium 0.0016

Vanadium 0.0002

Terbium < 0

Beryllium 0.0157

Gold 0.0016

Europium 0.0002

Titanium 0.0157

Ruthenium 0.0016

Cobalt 0.0157

Palladium 0.0003

Manganese 0.0315

Silver 0.0189

Antinomy 0.0094

Bismuth 0.0063

Chromium 0.0063

Cadmium 0.0094

Selenium 0.0016

Niobium 0.0002

Yttrium 0.0002

Rhodium < 0

Platinum < 0

Mercury 0.0022

Arsenic 0.0013

Silica 24.8803

16

2.1.4 Hazardous Effect Caused by WEEE

The hazardous substances which are contained in the EEE are harmful

to the environment and human health if the disposal of EEE is not conducted

properly. The use of some naturally occurring substances are harmless in nature, but

using these substances in EEE manufacturing has created in hazardous results such as

the compounds shown in the Table 421 hereunder:

Table 4: Components contained in EEE

Substances Type of WEEE containing

hazardous substances Effect

Halogenated compounds:

PCB (polychlorinated

biphenyls) Condensers, Transformers

Cancer, affects on the

immune system,

reproductive system,

nervous system,

endocrine system22

TBBA (tetrabromo-bishenol-

A)

Fire retardants for plastics

(thermoplastic components,

cable insulation)

TBBA is presently the most

widely used flame retardant

in printed wiring boards and

casings.

Severe hormonal

disorders23

PBB (polybrominated

biphenyls)

Severe hormonal

disorders24

PBDE (polybrominated

biphenyl ethers)

Severe hormonal

disorders25

Chlorofluorocarbon (CFC) Cooling unit, Insulation

foam

Results in increased

incidence of skin

21 E-waste guide, available at http://ewasteguide.info/hazardous-substances (last visited January 15, 2015) 22 Id. 23 Id. 24 Id. 25 Id.

17

cancer in humans26

PVC (polyvinyl Chloride) Cable insulation Respiratory

problems27

Heavy metals and other metals:

Arsenic Small quantities in the form

of gallium arsenide within

light emitting diodes

Lung cancer, skin

diseases and nerves

system affected.28

Barium Getters in CRT Brain swelling,

muscle weakness and

also anatomical

effect.29

Beryllium Power supply boxes which

contain silicon controlled

rectifiers and x-ray lenses

Lung cancer and skin

disease.30

Cadmium Rechargeable NiCd-

batteries, fluorescent layer

(CRT screens), printer inks

and toners, photocopying-

machines (printer drums)

Kidney damage,

symptoms of

poisoning, flu-like

symptoms of

weakness, fever,

headache, chills,

sweating, muscular

pain, lung cancer

and bone disease31

Chromium VI Data tapes, floppy-disks Various toxic effects

within cells causes to

eyes, skin, mucous

26 http://www.c-f-c.com/supportdocs/cfcs.htm 27 E-waste guide supra note20. 28 http://ewasteguide.info/hazardous-substances 29 E-waste guide supra note20. 30 Id. 31 http://www.intox.org/databank/documents/chemical/cadmium/ehc135.htm

18

membranes and DNA

damage32

Dioxin Pesticides Malformations of the

fetus, decreased

reproduction and

growth rates33

Lead CRT screens, batteries,

printed wiring boards

Vomiting, diarrhea,

convulsions, coma or

even death, loss,

abdominal pain,

constipation, fatigue,

sleeplessness,

irritability and

headache, Kidney

damaged, damage

nervous connections

and cause blood and

brain disorders.34

Mercury Fluorescent lamps that

provide backlighting in

LCDs, in some alkaline

batteries and mercury wetted

switches

Brain and liver

damage if ingested or

inhaled 35

Selenium Older photocopying-

machines (photo drums)

Hair loss, nail

brittleness, and

numbness and other

32 http://www.intox.org/databank/documents/chemical/chromium/ehc61.htm 33 E-waste guide supra note20 34 http://www.hc-sc.gc.ca/english/iyh/environment/lead.html and http://www.intox.org/databank/documents/chemical/lead/ukpid25.htm. 35 http://www.intox.org/databank/documents/chemical/mercury/cie322.html

19

odd sensations in the

extremities36

Source: WEEE guide

2.1.5 Methodology on WEEE Management

In managing the end of life of EEE or the WEEE, as mentioned the

cause and effect from hazardous substances contained in the products, the handling

methods of managing the WEEE shall have to be conducted separately from other

kinds of waste and shall have to follow the process of WEEE disposal carefully for

the avoidance of hazardous substances leaking to environment. Regarding to the

management of WEEE, this thesis will provide the information since the EEE was

made until it becomes WEEE which can be explained as follow:

2.1.5.1 Sources of WEEE

EEE is created by the hazardous substances through the

manufacturing processes. In every manufacturing process, hazardous substances are

released intentionally and unintentionally during the processes. This does not only

include hazardous substances by its naturally occurrence such as lead, mercury or

plastic, but also the hazardous substance occurred by the processes as engine oil

which is shown the manufacturing process by the Figure 1 hereunder;

36 EMPA Materials Science & Technology, available at http://www.empa.ch/plugin/template/empa/2/*/---/l=2 (last visited December 25, 2014)

20

Figure 1, the flow chart of source of WEEE

According to the Figure 1 as shown above, the source of WEEE could

be divided in 3 stages of occurrence which are:

2.1.5.1.1 Industry

In every manufacturing process of producing EEE,

hazardous substances are required in the processes; therefore, the risk of hazardous

substances leaking increases as long as the substances are required in manufacturing

processes.37 In reference to the Study on Master Plan on Industrial Waste

Management in the Bangkok Metropolitan Area and its vicinity in the Kingdom of

Thailand of Department of Industrial Works and Japan International Cooperation

Agency (JICA) in connection with Pollution Control Department, the study found that

the main WEEE stream source in Thailand comes from the industrial sector whereby

the control measure under Thai legal provisions lacks any serious enforceability in

current practice.

37 http://www.tungsong.com/modify-lifetsgcity/garbage_n/garbage_06.html

Design Materials

Machine

Manufacturing Process

Product Product used

Man WEEE

Hazardous

substances used and leaked

21

2.1.5.1.2 Household

In regard to Thailand’s State of Pollution Report 2013

of Pollution Control Department, the report found that in 2013, the amount of 368,314

tons or 65.4 percentages of EEE were thrown away from households. WEEE was

dumped by mixing with other solid wastes and most of the WEEE that is found in the

household area was battery, cell phones, lubricant oil, mobile batteries, and

fluorescents.38 Moreover, the Pollution Control Department has summarized the

estimated quantity of WEEE sourced from household sector in 2013 as shown in

Table 5 hereunder;39

Table 5: Quantity estimation of WEEE sourced from household sector in 2013

No. Type of EEE Quantity (Tons/Year)

1 Television 101,286

2 Air Conditioner 71,821

3 Refrigerator 63,092

4 Washing Machine 58,930

5 Computer 53,958

6 VCD/DVD Player 17,458

7 Cellphone 1,620

8 Digital Camera 184

Source: Pollution Control Department

Hence, the WEEE was dumped mixing up with other solid

wastes. This behavior of the household sector caused the government to spend a high

amount of government budget to separate WEEE from other wastes. Besides spending

the budget in separation of wastes, the government has also spent a big amount of the

budget in order to provide medication and treatment for citizens and restoring the

38 Udomsak Sinthipong. Environmental Laws, 3rd edition. (Bangkok: Winyuchon, 2013), p. 437-438 39 Pollution Control Department, Thailand State of Pollution Report 2013, (Bangkok: Pollution Control Department, 2015) P.2-9

22

environment. In this regard, we could understand that the problems and the costs

spending in WEEE management are connected to the behavior of people and

unprofessional management.

2.1.5.1.3 WEEE International Smuggling Dumping

In reference to the domestic occurrence sources of

WEEE, WEEE is imported from other countries, mostly from developed countries

which are found in the containers that are mixed with usable EEE. The reason of

smuggling is due to the developed countries, the cost of managing end-of-life EEE is

too high and not worth for processing in those countries due to the cause and effect

that are concerned in the matter. Therefore, the developed countries would then sell

their WEEE as part of EEE, mixed with secondhand EEE that is usable, mixed in with

the same container and shipped to developing countries such as Thailand. Even

though Thailand is one of the members of the Basel Convention, but the

transboundary restriction of WEEE has happened as a result. This is due to the

domestic legislations that are not sufficient enforcing both the theoretical and

practical solutions.40

2.1.5.2 WEEE Management Methodology

Since the EEE has been used until it reaches its life span and

then becomes WEEE in the result, there are methodologies in handling the WEEE as

follow;

40 Vilasinee Intharaporn-udom. Legal Measures on Hazardous Waste

Management: Electronic Equipment. Master’s thesis, Thammasat University, Law,

2006. p. 24-25.

23

2.1.5.2.1 Sorting or Separation

According to the mentioned WEEE from households

that was thrown away into the garbage and mixed with other solid wastes, a small

percentage of the parts in the WEEE remains usable and the cost of such parts of EEE

are made of gold, silver and other valuable materials is high; therefore, the first

process in the separation of WEEE out of other wastes is to select the usable parts to

be recycled or transformed into other form of valuable materials. However, due to the

mass waste stream mixed up between WEEE and solid waste the sorting or separation

of the wastes can be conducted at places of occurrence of the WEEE and also by the

officer who responsible for transportation of the wastes to the landfill area.41

2.1.5.2.2 Storage

Storage is one the process during the transportation of

waste to other processes like landfill, incineration or recycling. The WEEE will have

to be stored separately from other wastes due to the hazardous substances that it

contained.42

2.1.5.2.3 Collection

The transportation of WEEE from on-site pickup and

drop-off stations can be explained hereunder;

On-site pickup is one of the collection processes

whereby the government’s authorities or the recycling companies will pick WEEE up

at the customer’s place. In regards to this, the customer will have to drop the WEEE

41 Suthat Thongsathit. Tax and legal measures on environmental management:

battery and hazardous waste case. Master’s thesis, Thammasat University, Law,

2006. p. 16-17 42 Id. p.17

24

separated from other wastes at the door or an appointed place where it can easily be

collected.

Drop-off stations are another form of collection process

which the government has appointed the Stationary Collection Center as the

municipal district or department store in order to provide convenience for people to

conserve the environment.43

2.1.5.2.4 Transportation or Transferring

In this process, garbage trucks would bring all the

collected wastes, including WEEE, to the station such as the storage place before

transporting to the final disposal process. In regards to this process, the government

has to recheck and lastly separate WEEE from other wastes to analyze whether which

part of EEE is still reusable or is able to be brought back for recycling. Under this

process, the responsible person from the government will have to be knowledgeable

in the details of cause and effect of hazardous substances contained in EEE including

safety precautions in protecting himself from hazardous substances that are leaking.44

2.1.5.2.5 Treatment and Disposal

Referring to professional methods, WEEE management

can be divided in the following methodologies which are;

a). Physical-Chemical Process

The physical-chemical process is one of the disposal

processes to maintain WEEE into the non-harmful form, readying it for transportation

and reducing the contamination of the hazardous substances in WEEE such as

covering WEEE with concrete to maintain the substances in the limited area or using

43 Id. p.17 44 Id. p.18

25

the opposing chemical compounds to eliminate the hazardous effects of the substance

before entering the landfill.45

b). Bio-Chemical method

The Bio-Chemical method is used to extract or dissolve

some hazardous substances into the middle form as unharmed substances which are

able to be moved for other disposal methods. The method is also used to digest some

hazardous substances into proper form for transport to the disposal sites later on.46

c). Incineration

Incineration is an alternative choice of disposing some

hazardous substances which cannot be dissolved such as polycyclic aromatics (PCA),

polychlorinated dibenzo-para-dioxins (PCDDs) and polychlorinated dibenzofurans

(PCDFs). Incineration is required to be conducted in a secured and safe place because

the heating of some hazardous substances can cause smoke that consists of heavy

metal such as lead, arsenic, mercury, nickel and others.47

d). Landfills

WEEE that cannot be reused, recycled or recovered

ends up being buried in landfills. Landfills can be considered as a toxic time bomb if

the burying is not correctly conducted because hazardous substances may lay in the

soil for years until it is released into the environment. On the other hand, using the

Engineered Secure Landfill method could be an efficient method in disposing

hazardous substances by placing High Density Polyethylene (HDP) in the ground and

covering the landfill site with the HDP all over again.48

45 Id. p.18 46 Id. p.19 47 www.environmentaljournal.org 48 Id.

26

e). Safe methods for disposal of WEEE and managing

authorities

The safest method in the disposal of WEEE is to recycle

usable materials contained in WEEE. During the processes of storage, transportation

and any other pre-disposal method, the recycling company should implement proper

locations and secured storage regarding the collection and extraction of WEEE while

waiting for it be reused, recycled or recovered. Moreover, in compliance with the

recycling method of the world standards, the recycling company is required to

consult with environmental organizations both domestic and international such as

Pollution Control Department, Department of Industrial Works, NRDC and Basel

Action Network (BAN) which have created a certification system for recycling,

refining and refurbishing companies known as e-Stewards49 in order to monitor and

control the recycling company by having responsibility to collect the products after

49 e-Stewards is a company level certification based on a standard developed by the environmental community and industry members titled "e-Stewards Standard for Responsible Recycling and Reuse of Electronic Equipment®". e-Stewards certification assures the recyclers keep up the standards which allow the recycling process in a way that protects workers health and the environment. BAN also maintains a list of companies which are permitted to act as subscribed e-stewards (NRDC 2012), in 2010 the first certified standard was announced. And NRDC, BAN and other advocates are currently working on ensuring the strong implementation of the laws against e-waste exporters (NRDC 2012). Moreover, In many states of US have implemented the system to make electronic manufactures to take responsibility for their products, Thus, electronic manufactures are given great responsibility to collecting the products after their use and recycling them. It is also important to educate the public on handling and disposal of e-waste through awareness programs. This standard encompasses ISO 14001 and R2 (Responsible Recycling) practices. The standard prohibits toxic waste from being disposed of in solid waste landfills and incinerators and requires full compliance with international hazardous waste treaties for export/import of electronics among others. This certification is for electronics recyclers, asset recovery companies, refiners, processors and others in the electronics recycling industry. Certifications are issued by third party certifying bodies. Companies wishing to become e-Stewards should ensure the company is in compliance with the standards requirements then contact a certifying body to begin the certification process. In most cases a certifying body will conduct an audit; upon successful completion of the audit a certificate will be issued.

27

recycled and taking them back for recycling again as a way to reduce manufacturing

processes.50

2.2 Economic Instruments

Economic instruments is a policy approach that “seeks to address the market

failure of ‘environmental externalities’ either by incorporating the external cost of

production or consumption activities through taxes or charges on processes or

products, or by creating property rights and facilitating the establishment of a proxy

market for the use of environmental services”51

The economic instruments such as environmental taxes and charges, tradable

permits and subsidies, are thus able to mitigate market failures in a cost- effective

way. They can provide powerful incentives that alter the basic cost-benefit calculation

of producers and consumers, thus driving changes in behavior.52

Generally, economic instruments introduce more flexibility, efficiency and

cost-effectiveness into WEEE management measures. Furthermore, they can stimulate

development of pollution control technology and expertise in the private sector;

provide government with a source of revenue to support WEEE management

programs; and eliminate a government’s requirements for larger amounts of detailed

information needed to determine the feasible and appropriate level of control for each

plant or product.53 Moreover, economic instruments can be used as a tool to:

a). reduce the amount of waste generated

b). reduce the proportion of WEEE in the waste generated

c). segregate WEEE for special handling and disposal

d). encourage recovery, reuse and recycling of WEEE 50 Id. 51 OECD, 2007a. UNEP 52 Id. 53 Id.

28

e). support cost-effective WEEE collection, transportation, treatment and

disposal systems

f). minimize adverse environmental impacts related to WEEE collection,

transportation, treatment and disposal systems, and

g). generate revenues to cover costs.54

According to the above tools, command and control strategy involves direct

regulations along with monitoring and enforcing systems. It generally requires the

government to formulate the waste standards, to specify schedules for meeting the

standards, permitting and enforcing procedures for facilities, liability assignment, and

penalties for non-compliance. The major advantage of the command and control

approach is that the regulator has a reasonable degree of predictability about how

much pollution levels will be reduced. The definition of economic instruments varies

in literature. However, there appears to be some general consensus in the definition of

an economic instrument as a policy, tool or action which has the purpose of affecting

the behavior of economic agents by changing their financial incentives in order to

improve the cost-effectiveness of environmental and natural resource management.55

Economic instruments have various uses in the environmental and natural

resource management arena, and according to UNEP56, economic instruments have at

least six benefits over command and control strategy which are:

1. Provide flexibility in the overall cost of reducing emissions

Economic instruments ensure that the overall economy wide cost of

meeting specific emission targets are reduced by allowing the market to determine

how much pollution each specific firm can reduce. In this way they encourage firms

54 Id. 55 Id. 56 Id. 2004. (UNEP)

29

whose emission reduction is less costly to abate more rather than forcing every firm to

meet a specific emissions level.57

2. Act as incentives for the use of innovative abatement technologies

Since firms can trade in emissions, and because emission reductions

have financial value, firms have a continued incentive to invest in abatement

technology innovation since extra reductions can be sold to others.58

3. Allocate environmental and natural resources to parties who value them

most

Properly structured Economic instruments ensure fair allocation of

environmental and natural resources and encourage their sustainable utilization while

at the same time raising revenues for the government in the form of resource rents.59

4. Guarantee self-enforcement by aligning public and private interests

Economic instruments create decentralized and self-enforcement

systems for environmental policies by creating an incentive for agents with vested

interests to ensure the proper use of environmental and natural resources. Thus the

burden of control is taken away from the state.60

5. Increase transparency in resource use and allocation

Application of Economic instruments in environmental and natural

resource management is appealing in the sense of their openness as the costs and

rights associated with many Economic instruments are more visible through trading

levels, prices, ownership patterns and fee receipts. This makes it easy to evaluate

57 Id. 58 Id. 59 Id. 60 Id.

30

investment trade-offs and discourages practices such as lobbying for special privileges

or exceptions.61

6. Help in cost-recovery of publicly provided services

In the provision of publicly owned or delivered resources such as

drinking water or oil, market pricing is applied in many markets. In others, their

prices are set at levels that recover the full cost of providing them. The revenues can

then not only be used to finance continued provision of these services but also in

activities that encourage increased conservation.62

Economic instruments are also discussed in terms of their “functional

objectives”. According to UNEP63, economic instruments have four major functional

objectives:

1. Establish, clarify or improve property rights

Property rights based economic instruments provide an incentive for

owners of resources to invest in them and extract/harvest them sustainably. In other

words, clear property rights add security and flexibility to the management of

environmental and natural resources as they discourage “the tragedy of the commons”

tendencies. It is worth noting that property rights need not be individualized, since

even communal property rights can in some cases provide more secure tenure.64

2. Ensure that resource users pay a fair price for what they consume

Environmental fees are charged to help clarify price signals and

encourage efficient use of environmental and natural resources. Most of these fees

first address the issue of recovering the cost of providing goods and services from the

beneficiaries, as the most efficient solutions in an economic sense occur when fees are

set to recover both the direct costs of goods and services plus the environmental costs 61 Id. 62 Id. 63 Id. 64 Id.

31

associated with producing and using a particular product/service. However, political

realities often eclipse this outcome.65

3. Subsidize cleaner alternatives

Some economic instruments can be applied to change production or

consumption behavior to one that is more environmentally superior. Well-targeted

and focused interventions, mostly in the form of subsidies, may be able to accelerate

the development of these preferred alternatives.66

4. Generate revenue

A number of economic instruments, for example permits, levies and

taxes have immediate revenue generating implications to the government. This

revenue can be potentially earmarked to help enforce, improve, and expand

environmental and natural resource management.67

In this regard, the Economic Instruments will be explained separately in the

methodologies section.

2.2.1 Taxation

Taxation is the main income of a country which is imposed on citizens or

property to support the government funds regarding to advantageous achievements

and protection in return. Generally all forms of income are subject to income taxation.

Citizens or properties that are considered as tax-payers will be divided into two broad

groups which are personal and corporate.

Taxes will be divided into two categories which are direct and indirect taxes.

Direct taxes are those assessed against income, land or real property, and personal

65 Id. 66 Id. 67 Id.

32

property, which are paid directly to the government. On the other hand, indirect taxes

are assessed against articles of consumption, such as products or services, but

collected by an intermediary such as value-added tax68

According to the definition of tax, it could be explained in 3 characteristic69

ways as follow.

1. Compelled Tax is the first characteristic of tax which government has

authority to impose to its citizens.

2. General Advantages Purpose is the second characteristic of tax which the

tax-payers are acknowledged that they would not be directly provided any advantages

as personally; however, the tax-payers would be given advantages from government

as public interest in return.70

3. Absolute Duty is the third characteristic of tax whereby the tax-payers

acknowledged that the tax paid to support the government is non-refund expense

regarding to public interest purpose.71

2.2.2 Purposes of Taxation

Levying is the key factor in imposed taxes to tax-payers in order to

support the government funds, mostly emphasized on the country economic purpose

in connection with providing public interest. However, the mentioned public interest

could be explained by the following concepts.72

a). Economic matter 68 HG.org.Legal Resources, available at http://www.hg.org/tax.html (last visited December 20, 2014) 69 Supalux Pinijphuwadol. Taxation principles and Theories, 3rd edition. (Bangkok: Winyuchon, 2004). p..22. 70 Id. p. 23 71 Id. p. 23-24 72 Wit Tuntayakul. Taxation Law, 6th edition. (Bangkok: The Thai Bar, 1987). P. 30-39

33

The concept of economic matter under the public interest will be

explained as the economic development support which depends on factors such as

investment, technology development, industrial development, labor development,

manufacturing development and other factors that contributes to the economic growth

of the country.

In this regard, levies could support the economic growth by

government providing tax incentives on some types of businesses under the initiated

condition or providing tax exemption on importing environmentally-friendly engine.

b). National resources management

Regarding any activity which may cause negative effects to

environmental or human health, the government will have to reduce the consumption

amount by increasing costs through adding tax to the activity or product that are

applied to luxuries accordingly.

c). Economic status

The government is entitled to comply with its economic managing plan

by controlling the citizens’ income rate to remain in a positive status as addressed by

the Treasury Department.

d). Reducing the differences between classes of citizens

The government will have to use tax strategies in order to reduce the

differences between the rich class and the poor class of the people in the country. The

tax strategy to be used regarding this matter should be the income tax method which

is directly imposed on citizens in different rates concerning the capability of each

person.

34

2.2.3 Taxation Policies

The general idea of taxation aims for the efficient tax collected

whereby the general taxation principles have been given by Adam Smith, the British

Economist, and could be divided as follows.

a). Equity

The equity policy shall be considered as the fundamental principle.

The taxation shall be exercised as equal as all classed that imposed by taxation. The

progressive tax is a good and clear example of the equity principle whereby imposing

to the income rate of each citizen in which the more income a person gains, the more

tax he has to pay.73

b). Certainty

Regarding to the policy, tax rules or regulations shall be clearly stated

of the method, rate to be paid and the amount in exact to be determined ofr the tax

base.74

c). Convenience

The convenience shall be considered as the due at a time which must

be convenient for the citizens as tax payer. Convenience of payment is important in

helping to ensure compliance with the tax system. The more difficult a tax is to pay

the more likely that it will not be paid.75

d). Economy

The costs to collect a tax should be kept to a minimum. These costs

include the government cost to the government that is influenced by the number of

revenue officers necessary to administer the tax. There are also compliance costs

73 Supalux Pinijphuwadol supra note51. p. 61. 74 Id. p. 62-63 75 Id. p. 63

35

incurred by taxpayers to consider. This principle is also closely related to the principle

of simplicity. The more complex a tax, the greater the costs for the government to

administer it and the greater the compliance costs for taxpayers to determine their tax

liability and report it.76

2.2.4 Legal Concept in Solving Environmental Problem

Previously, in taking serious action on environmental control, the

government and individual sector could only take legal actions on polluters by filing

to the court, but this action could not reach a result for higher potential in conserving

the environment from the current crisis. Therefore, the concept of environmental

management has been developed and improved whereby divided in two main

concepts as follows.

a). Command and Control Strategy77

In regards to the Command and Control Strategy, the government can

exercise its rights to order polluters to comply with the environmental quality standard

that is stipulated by the government in order to control the pollution that are released

from individuals to not exceed the limit that the environment itself can naturally

absorb and eliminate. However, the method requires a direct command and control

stipulated by the government at pollution releasing site. In this regard, the Command

and Control Strategy shall be considered in Pros and Cons as follows.

76 Id. p. 63 77 Pollution Control Department. Ministry of Science, Technology and Environment. Final Report on Law Enforceability Improvement Suggestion on Environment. (Bangkok: Pollution Control Department.) p. 251-252

36

Pros of Command and Control Strategy78

The government can exercise its right to stipulate any order which

could be enforced accordingly when enacting for legal support. Moreover, the

government can easily exercise the right at the same standard in every single

government sector which does not require too much time considering and interpreting

of the legal purposes to achieve consequences and reducing the possibilities of

illegally taking advantage or corruption by local government officers.

Cons of Command and Control Strategy

Even though the pros of the Command and Control Strategy should be

fast and simple for the government to enforce the legal actions in environmental

management, the current standards that are assigned by the government shows that the

pollution rate released currently from the individual sector is overwhelmingly

exceeding the standard stipulated by the government. Nevertheless, due to the high

rate of releasing pollution, it has caused the government to spend the governmental

fund collected from tax imposed on citizens in abatement cost which affects the

manufacturing sectors that will lead to higher cost of products afterward. The cons of

the Command and Control Strategy is the effect on the new technology being used in

manufacturing and product development because there will be no need for the

manufacturing sector to imply new technology if the released pollution does not

exceed than the limit stipulated by the government. In this regard, the Command and

Control Strategy will have effect on the environmental conservation concept which

aims for highest results of reducing pollution that is being released.79 Not only does

the concept of environmental conservation not meet the actual result of pollution

control and the WEEE management, the cost of managing environmental problem is

uncontrollable because most of the pollution released mostly occurs from the

individual sector as manufacturers and consumers throw away WEEE which is far

78 Id. p. 253 79 Id. p. 254

37

from the limited governmental funds that is being distributed amongst responsible

departments.80

b). Economic Strategy

The Economic Strategy is another method that is the opposite of the

command and control strategy. The characteristic of the Economic Strategy is the

persuasion concept that magnetizes individual sectors to help conserve the

environment. In this regard, the government should announce or provide the directive

or environmental conserving plans as a guideline for both municipal and industrial

sectors to comply with such by offering them incentives on tax reduction or

exemption which could attract the attention of this sector. Since the individual sector

acknowledges the privileges they would get if they could reach the condition assigned

by the government, this would bring back the social cost and external cost to their

concern with less spending of governmental funds in recovering the environmental

problems at present. Moreover, this method will have the individual sectors

cooperation and participation in properly managing WEEE as mentioned earlier than

most of WEEE that comes from individual sector.81

2.2.5 Environmental Conserving Principles

Nowadays, there are many principles or concepts on how to conserve

the environment efficiently. According to this, the principles that are mostly applied

to manage the environmental problems are as follows.

2.2.5.1 Polluter Pays Principle (PPP)

The “polluter pays principle” (PPP or principle) requires the

polluter to bear the expense of preventing, controlling, and cleaning up pollution. The

80 Id. p. 255 81 Id. p. 255-256

38

price of a good or service should fully reflect its total cost of production, including the

cost of all the resources used. Thus the use of air, water or land for the emission,

discharge or storage of wastes is as much a use of resource as are other labor and

material inputs. The lack of proper prices for, and the open-access characteristic of

many environmental resources means that there is a severe risk that over-exploitation

leading to eventual complete destruction will occur. The PPP seeks to rectify this by

making polluters ‘internalize’ the costs of use or degradation of environmental

resources.82 The aim is to integrate use of the environment (including its waste

assimilation capacity) into the economic sphere through the use of price signals and

the use of economic instruments such as pollution charges and permits.83

2.2.5.2 Precautionary Principle

The precautionary principle is a tool for policy- and decision-

making designed to ensure that people or entities bear political responsibility for

taking action to prevent damage to health and ecosystems in the face of uncertain

scientific information about health and ecosystem risks. A common definition of the

principle is to be found in the Rio Declaration on Environment and Development of

1992: “Where there are threats of serious or irreversible damage, lack of full scientific

certainty shall not be used as a reason for postponing cost effective measures to

prevent environmental degradation”. Based on the European Environment Agency’s

work and other developments in thinking about the precautionary principle, a broader,

more proactive definition of precaution helps clarify its application to children’s

health and sustainable development: the precautionary principle provides a

framework, procedures and policy tools for public policy actions in situations of

scientific complexity, uncertainty and ignorance, where there may be a need to act

before there is strong proof of harm in order to avoid, or reduce, potentially serious or

irreversible threats to health or the environment, using an appropriate level of

82 Roy E. Cordato, Ph.D. The Polluter Pays Principle: A Proper Guide for Environmental Policy. Washington, D.C. 20006. 83 The use of regulation to internalize externalities is also, however, consistent with the PPP.

39

scientific evidence, and taking into account the likely benefits and drawbacks of

action and inaction.84

2.2.6 Environmental Taxation

Environmental taxation is a well-known method which generally being

used in worldwide environmental management. The government could use the

environmental tax to minimize the wide range of harm to environment, such as waste

disposal, by addressing the taxes to the polluters. The environmental taxes shall leave

individual sectors to freely analyze on their liabilities on paying taxes. An

environmental tax generally should be levied as directly as possible on the pollutant

or action causing the environmental damage. Using the tax to increase the market cost

of the polluting activity helps to incentivize the full range of potential abatement

options: cleaner production processes; end-of-pipe abatement (i.e., measures to

capture and neutralize emissions before they enter the environment); adoption of

existing products which cause less pollution; development of new, less-polluting

products; and reducing output or consumption.85

84 Marco Martuzzi and Joel A. Tickner. The precautionary principle: protecting public health, the environment and the future of our children 85 Organization for Economic Co-operation and Development. Environmental Taxation A Guide for Policy Makers

40

CHAPTER 3

TAX MEASURES AND LEGAL PRINCIPLES IN WEEE

MANAGEMENT IN INTERNATIONAL AND FOREIGN LAWS

According to the legal measures on WEEE management in Thailand, it is yet

to have direct legal provision in managing WEEE situation in Thailand. Regarding to

this matter, studying international and foreign legal provisions from developed

counties would introduce new legal measures in WEEE management as a legal model

applicable to Thai legal provisions. Thus, this study will emphasize on United

Nations, European Unions (EU) Directives and Japanese Legal Principles regarding to

WEEE management and legal measures on tax incentives.

3.1 United Nations Environmental Program (UNEP)

The UNEP is providing guidance to policy-makers in developing countries on

development of indicators that measure progress towards more sustainable patterns of

consumption and production.86 According to the economic growth and development

patterns, it ensures that environment needs the sustainable of consumption and

production (SCP) concern.87

SCP has been defined as “The Production and use of goods and services that

respond to basic needs and bring a better quality of life, while minimizing the use of

natural resources, toxic materials and emissions of waste and pollutants over the life

cycle, so as not to jeopardize the ability to meet the needs of future generations.”88

86 United Nations Environmental Program (UNEP). SCP Indicators for Developing Countries. A Guidance Framework. Introduction. p. 2 87 Id. 88 Noewegian Ministry of Environment, Olso Symposium, 1994.

41

This shows that the world is concerned on the environmental crisis on using

hazardous substances in production. And now the world needs to reduce or limit the

use of hazardous substances which would become WEEE in the final stages of EEE

life span.

The SCP requires a fundamental rethinking of the way societies produce, use

and dispose of products. The resource-intensive consumption and production patterns

of the developed countries cannot be replicated worldwide.89 The rethinking requires

a combination of radical innovation in terms of efficiency and connectivity that,

together, will result in the transformation required to ensure the maintenance of

critical natural capital.90 In the context of growing population and increased

consumption, particularly in the newly industrialized developing world, this declining

natural capital stock will be insufficient to sustain current consumption and

production patterns.91

Referring to the brief review of SCP indicator initiatives, a 2002 UNEP survey

to assess the level of implementation of national sustainable consumption policies,

found that more than half of the government surveyed had not intentionally measured

progress towards sustainable production and consumption.92 Following the World

Summit on Sustainable Development and the Marrakech Process, there has been an

increase in the development of integrated national SCP programs, which has brought

with its greater efforts to measure progress on SCP. This in turn has led to the more

widespread development and use of SCP indicators at the national level.93

89 Marrakech Process. Third International Expert Meeting (June 2007). Background Paper 2: Key Issues of Sustainable Consumption and Production. 90 United Nations Environmental Program (UNEP). supra note68. p. 9. 91 Id. 92 Id. at p.12 93 http://www.unep.org/geo/geo3/

42

The Basel Convention on the Control of Transboundary Movements of

Hazardous Wastes and their Disposal (“Basel Convention”) is the most important

international agreement related to hazardous waste.94 The Global requirement for the

WEEE management, the Basel Convention recognizes the risk of damage to human

health and the environment that is posed by hazardous wastes and other wastes and by

the transboundary movement of such wastes. The Preamble expressly states that its

purpose is to protect human health and the environment against the adverse effects

that may result from the generation and management of hazardous wastes and other

wastes. To accomplish its goal, the Convention provides for three key measures with

binding obligations on parties, namely:95

i. Strict control of transboundary movement of hazardous wastes

which recognizes the right of every party to prohibit the import of hazardous wastes

or other wastes for disposal. Therefore, any party can place a ban on the importation

of any of the wastes listed in the Annexes to the Basel Convention, or any substances

that the party has classified as hazardous waste by national law. If movement of

wastes is to take place between parties, the Basel Convention obligates parties to

ensure that all movements are conducted in accordance with consent and notification

requirements and procedures that it establishes;96

ii. Environmentally sound management of hazardous wastes which

integrated life-cycle approach as the controlling measures from generation of

hazardous wastes to their storage, transport, treatment, reuse, recycling, recovery and

final disposal97; and

94 Training Manual on International Environmental Law. UNEP. p.126 95 Id. at p.127 96 Id. 97 Id. at p.129

43

iii. Enforcement and implementation of the provisions of the

convention at international and international levels which the rules and standards

established by the Basel Convention for transboundary movement of wastes are to be

enforced at national and international levels. At the national level, article 9(5)

obligates each party to introduce appropriate national legislation to prevent and

punish illegal traffic in hazardous and other wastes. A party may, for example, create

hazardous waste laws expressly prohibiting importation and exportation of hazardous

wastes without the prior notifications and consents required by the Convention. A

party may also, by law, establish a special police force or customs unit charged with

the responsibility of detecting illegal imports and exports of wastes. Further, a party

may create laws stipulating fines and/or imprisonment for citizens and others who

import hazardous wastes without following the Convention procedures. Countries can

also establish laboratories at their entry points to test the nature of substances

exported to their countries to determine whether they are prohibited wastes, in

addition to any laws, policies and procedures that may require the return of hazardous

wastes to countries of origin in cases where proper procedures have not been

followed.98

3.2 Principles on WEEE Management under EU Directives

3.2.1 Problem on WEEE Management in EU

Since WEEE stream has been dramatically increasing, the EU has set

up policies which aim to reduce environmental impact by planning long-term

approaches. The purpose of setting up these policies is to turn in to a recycling society

and to minimize the WEEE stream. Regarding to the minimization of WEEE, the

methods of reusing, recycling, recovering and its disposing, incinerating and landfills

98Id. at p.130

44

are methods of the policies under the management of individual sectors and those

processes cost financial and environmental expenses.99 ‘

The EU’s Sixth Environment Action Program (2002-2012) identified

waste prevention and management as top rank priority of the member states. The

Directive introduces a five-step waste hierarchy where prevention is the best option,

followed by re-use, recycling and other forms of recovery, with disposal such as

landfill as the last resort. EU waste legislation aims to move waste management up

the waste hierarchy as shown in Figure 2 hereunder;

Figure 2: WEEE Management Hierarchy

Source: European Commission

Regarding the policies in reducing the WEEE stream and preventing

aspects of environmental pollution, European Parliament has stipulated the legislation

which is based on the mentioned policies. Therefore, the European Parliament has

elaborated on two relating Directives: 99 European Commission. Being wise with waste: the EU’s approach to waste management

Prevention

Preparing for Reuse

Recycling Recovery

Disposal

45

1. Directive 2011/65/EU (RoHS 2 - Restriction of Hazardous Substances)

The Directive aims for restriction of using of hazardous substances in

the manufacturing process, including recycling processes which manufacturers are

required to change the substances used as materials for products for an environmental

sound management. Regarding the restriction and requirement for using safer

substances in manufacturing, manufacturers should be given incentives through

financial profit from recycling EEE.

RoHS restricted substances, listed in Annex II100 with their Maximum

Concentration Values (MCV), are:

Cadmium (Cd) 0.01%

Mercury (Hg) 0.1%

Lead (Pb) 0.1%

Polybrominated biphenyls (PBBs) 0.1%

Polybrominated diphenyl ethers (PBDE's) 0.1%

Hexavalent Chromium (Cr6+) 0.1%

These MCV limits apply to each “homogeneous material,” defined by

the European Commission as a material that cannot be mechanically disjointed101 or

separated into different materials. Examples of homogeneous materials are metals,

alloys, paper, board, resins and coatings. Understanding this distinction is important.

For example, the total concentration of PDBE by weight in a 100-strand cable may

only be 0.02%. Since the limit is 0.1%, this cable initially appears to be RoHS

compliant. However, the PDBE concentration in the separable flame retardant jacket

of that cable may be 0.4%, well above the 0.1% limit specified by RoHS. Therefore,

100 Directive 2011/65/EU (RoHS 2 - Restriction of Hazardous Substances). ANNEX II 101 Mechanically disjointed means “the materials can be separated by mechanical actions e.g., ..crushing, grinding and abrasive processes”

46

this cable would not be considered RoHS compliant under the directive. The

“homogeneous materials” in a data cable are located within all the elements of the

cable, including (but not limited to) cable sheaths, strength yarns, armor layers, water

blocking powders/yarns/tapes/gels, strands or optical fibers. This distinction regarding

“homogeneous material” is crucial to the manufacturer or vendor as they may be

required to prove “due diligence” in ensuring that their efforts towards RoHS

compliance include knowledge of the compliance of all materials used in the final

product.102

For example, cadmium, a RoHS restricted substance, was commonly

used in pigments and colorants for plastics in the wire and cable industry. Mercury is

used in batteries, electrical switches, computer equipment relays and in some

thermometers. Hexavalent Chromium has been used in pigments, dyes, inks, chrome

plating and as a wood preservative. Lead was the predominant thermal stabilizer for

PVC in wire and cable applications before the implementation of RoHS. However, the

availability of cost effective alternatives to lead stabilizers as well as regulatory

efforts such as RoHS have greatly diminished its use in PVC. PBBs were commonly

used as flame retardants, but manufacturers ceased utilizing them in the United States

in 1976 and globally in 2000. PDBEs are commonly used as flame retardants in a

variety of plastics and were granted a RoHS exemption by Commission Decision

2005/717/EC in the original version of RoHS. However, a legal challenge by the

European Parliament resulted in the elimination of this exemption as of July 1,

2008.103

2. Directive 2012/19/EU on Waste Electrical and Electronic Equipment

(WEEE)

The Directive has been developed to support the aspect of WEEE

stream reduction by disposal process, landfills and incineration, and to improve the 102 Nexans. RoHS and WEEE Overview and Recommendations. February 2012. Issue 3. p.4. 103 Id.at p.5.

47

use of materials during the processes of reusing and recycling regarding to the change

of safer materials. The specific directive measures emphasizes on the Extended

Producer Responsibility (EPR) where it aims to study and control the production of

EEE which should facilitate reusing and recycling. Moreover, the purpose points to

the responsibility of consumers to separate WEEE from other forms of waste and the

collection of WEEE should not burden individuals. Nevertheless, producers are

responsible for financing WEEE collection and management in consideration of EPR

and PPP.

Referring to the approach for the obligation provided for the EEE

producers under the Directive shall be summarized as:

a). Product Design

Producers are entitled to focus on specific environmental issues

through our Design for Environment (DfE) program. DfE is an engineering

perspective in which the environmentally related characteristics of a product, process

or facility are optimized. Together, producers and product designers identify,

prioritize and recommend environmental improvements through a company-wide DfE

program. The design for environment program is used to ensure that the design and

production of EEE takes into account the dismantling and recovery of WEEE and its

components and materials.104

b). WEEE Marking

All EEE products which are subject to the WEEE Directive

placed on the market from August 13th 2005 are compliant with the WEEE marking

requirements. Such products are marked with the “crossed out wheelie bin” symbol

shown below in accordance with the European Standard EN50419.105

104 Hewlett-Packard Company 2014. HP and European WEEE Compliance. p.1 105 Id.

48

c). Information for Users

Producers shall provide information to end users on the

meaning of the crossed out wheelie bin in accordance to EU Member State

requirements. The following information is available within product documentation

and where not applicable by electronic means: This symbol means do not dispose of

your product with your other household waste. Instead, you should protect human

health and the environment by handing over your waste equipment to a designated

collection point for the recycling of waste electrical and electronic equipment. The

household waste disposal service is responsible for collection of WEEE and required

to return WEEE to the producers for disposal.106

d). Registration and Reporting

Producers are required to comply with all legal requirements

resulting from the transposition of the WEEE Directive in member states’ legislation

and registers with national authorities, on time, in all member states where the

producers are obliged. Registration and enforcement dates are country dependent.107

e). WEEE from Private Households

Producers are required fulfills its obligations for the financing

of collection, treatment, recovery and environmentally sound disposal of WEEE from

private households deposited at collection facilities.108

106 Id. 107 Id. 108 Id.

49

f). WEEE from Users other than Private Households

Some of the Producers has established its own recycling system

for WEEE from users other than private households and provides this service in

compliance to applicable member state requirements. The producer will provide free

recycling of all its branded electronic equipment once a customer has returned the

equipment to a producer designated collection point. For the EEE of other branded

electronic equipment the producer will provide the same service where a replacement

product is being supplied by the producer. Where a replacement product is not being

supplied, recycling services can be provided on request at additional cost. The

producer in this regard is named as Hewlett-Packard Company (HP).

Services which HP can provide under HP’s Planet Partner

Program include:

(1) Recycling

(2) Certificate of Recycling

(3) Drop off locations at HP authorized recycling facilities or;

(4) Collection at customer facility for consignments of IT

hardware weighing at least 1 ton

(5) Transportation to an HP authorized sorting and waste

facility

(6) Management and control of the whole logistic and recycling

chain

(7) Special solutions by arrangement including equipment

removal, transportation packaging and serial number tracking.

Moreover, HP also offers a range of product reuse services for

commercial customers such as trade in and asset management services.109

109 Id.

50

g). Treatment

In accordance with Community waste legislation, producers

require that treatment and recycling of WEEE done on behalf of the producers, either

by a collective scheme or individually, are carried out in accordance with the

requirements of the WEEE Directive, as set out in the implementing legislation of the

member states, including requirements respecting special treatment for specified parts

and overall recovery rates achieved.110

h). Information for Treatment Facilities

Producers are required to produce reuse and treatment

information for each type of new EEE put on the market within one year after the

equipment is first put on the market in accordance to the requirements under the

WEEE Directive. The producers are responsible to make the required information

available to treatment facilities and reuse centers by the date specified in member

state legislation, typically within one year after the new products have been put on the

market or sold after 13th August 2005. Industry associations DIGITALEUROPE

(formerly EICTA), CECED (European Committee of Domestic Equipment

Manufacturers) AEA Europe (American Electronics Association Europe), and EERA

(European Electronics Recyclers Association), have developed a common

understanding of information needs on equipment characteristics relevant for

fulfilling the information for treatment facilities requirements in the WEEE Directive.

The producer, as HP, has followed this common understanding and approach in so far

to comply with the information for treatment facilities requirements under the WEEE

Directive.111

i). Minimum requirements for Shipments of Used EEE

Producers shall sometimes be required to move used equipment

to and from our repair partners for the purpose of repair, refurbishing,

remanufacturing or root cause analysis. Such movements can often include trans-

110 Id. 111 Id.

51

border shipments across European and international borders Annex VI of the WEEE

Directive and its transposition into member state law establishes certain minimum

criteria for the shipment of used equipment. The producers are required to comply

with the criteria under Annex VI of the WEEE Directive for shipping non-functional

or repaired/refurbished used equipment.112

3.2.2 Legal Measure on WEEE Management in EU

Under the Directives, WEEE management systems must enable WEEE

to be collected separately from other waste streams, and take-back schemes must

enable consumers to return end-of-life electronics free of charge.113 The Directive

sets compulsory targets for collection and recovery of WEEE, with a combined target

for recycling and component reuse. It requires prioritization of reuse over recycling

wherever possible, as reuse is up to twenty times more environmentally beneficial

than recycling.114 The WEEE Directive makes producers financially responsible for

the end-of-life management of their equipment. This is meant to encourage eco-

design, where producers incorporate lifecycle thinking into product design by, for

instance, reducing or eliminating toxic inputs, or increasing the product’s ability to be

reused and/or recycled.

Under the WEEE Directive, the producer has the following

obligations:

a.) Marking of EEE - All EEE placed on the market after 1 April 2007

must be marked with specific information to assist with separate collection when it is

discarded as waste (the crossed out wheelie bin symbol), a producer identification and

that the product was placed on the market after 13 August 2005. The latter marking

112 Id. 113 Savage et al. 2006. Implementation of the WEEE Directive in the EU. 114 Computer Aid International. Report 2: WEEE Ver. 2.0 - What Europe must do

52

can be achieved by marking the product with the date it was placed on the market or

by putting the ‘black line’ under the crossed out wheelie bin symbol.115

b.) Join a producer compliance scheme - Each producer must join a

PCS. Through this membership the producers will finance the collection, treatment,

recycling and environmentally sound disposal of separately collected WEEE. The

PCS will, on the producer's behalf, register each of its members and will report

information and declare compliance with obligations. It may also assist with

clearance, treatment and reprocessing of WEEE, and trade evidence on their

behalf.116

c.) Information to assist treatment and recycling - Producers must

make information available to treatment facilities and reprocessors on each new type

of EEE they put onto the UK market within one year, to assist them with reprocessing

and handling the WEEE.117

d.) Provision of producer registration details - All producers must

register with the relevant Environment Agency. This will generally be one of the

duties performed by the PCS on the producer's behalf. The producer registration

number must be provided to distributors when they sell EEE.118

e.) Report level of sales of products to their PCS so the PCS can collate

quarterly and annual data for national reporting purposes.119

f.) Records of direct selling abroad - If a producer is based in the UK

and selling direct to end users in other member states, records must be maintained of

115 Directive 2012/19/EU, of the European Parliament and of the Council, of 4 July 2012, on waste electrical and electronic equipment (WEEE). 116 Id. 117 Id. 118 Id. 119 Id.

53

these sales including how the obligations in other member states have been complied

with, for a period of six years.120

Financial Mechanism: WEEE from Private Households Allocation of

financial responsibility for WEEE/E-waste from households, for historical and new

WEEE/E-waste is an important issue. The distinction between the financial

mechanism to be applied for new WEEE/E-waste and historic WEEE/E-waste is that

producers bear individual financial responsibility for new WEEE/E-waste and

collective responsibility for the historic WEEE/E-waste on all producers on the

market.121 Three patterns have emerged related to individual financial responsibility

for new WEEE/E-waste in EU, which are described below:

Pattern 1: Financing the management of waste from their own products

for new WEEE/E-waste

In the countries listed below, the legal text clearly distinguishes that

producers are required to finance the waste from their own products placed on the

market after 13 August 2005.

Pattern 2: Ambiguous Interpretation of individual financial

responsibility

Countries do not appear to have formulated their legal text in such a

way that an explicit individual financial responsibility is assigned. That is, in many

cases producers responsibilities for products placed on the market after 13 August

2005 are mentioned in the plural form. For e.g. In Germany and Austria, producers

are given the choice to decide whether they are individually or collectively

responsible financially for products placed on the market after 13 August 2006.

Pattern 3: Absence of Individual Financial Responsibility for New

WEEE/E-waste

120 Id. 121 UNEP. Manual 3: WEEE / E-waste “Take Back System”

54

In many countries listed, allocation of financial responsibility for new

WEEE/E-waste is to be determined by a current market share as in the historical

WEEE/E-waste financing mechanism. Form of Financial Guarantee for managing:

WEEE from Private Households.

a). Since WEEE Directive stipulates individual financial responsibility

for new WEEE/E-waste, producers are required to finance the costs of waste

management of their own products. Although producers can choose to fulfill their

obligations collectively, they are not forced to finance the cost of other producer’s

WEEE/E-waste.

b). Since it cannot be assumed that all producers that are on the market

today will remain active on the market when their products are collected as WEEE/E-

waste, a financial guarantee is required to meet these costs in order to prevent its

burden on society.

c). This guarantee can be the form of participation in collective

compliance scheme, a blocked bank account or recycling insurance to satisfy the

guarantee requirement.

d) Recycling insurance or a blocked bank account as a financial

guarantee are more costly than joining a collectively-organized compliance scheme

especially for individual system or limited brand compliance. In Germany the

guarantee can be based on a collective guarantee, which means that producers will be

responsible for other producers’ products in the event that one member exits the

market.

3.2.3 Plans on Applying Tax Measures on Solving WEEE Management in

EU

According to the Proposal for a DIRECTIVE OF THE EUROPEAN

PARLIAMENT AND OF THE COUNCIL amending Directives 2008/98/EC on

55

waste, 94/62/EC on packaging and packaging waste, 1999/31/EC on the landfill of

waste, 2000/53/EC on end-of-life vehicles, 2006/66/EC on batteries and accumulators

and waste batteries and accumulators, and 2012/19/EU on waste electrical and

electronic equipment, it introduces this by addressing the grounds for and objectives

of the proposal to improve waste management practices, stimulate innovation in

recycling, limit the use of landfills, and create incentives122 to change consumer

behavior.123 In regards to this, the measures to be considered in the plan as key

economic instruments include: progressive extension to the whole territory of

Member States of ‘pay-as-you-throw’ systems incentivizing municipal waste

producers to reduce, re-use and recycle their waste and economic incentives for local

authorities to promote prevention, develop and intensify separate collection

schemes.124

According to the provisions on WEEE management in EU, the

incentives is one of the options to persuade the individual participation, but are mostly

provided for the business sectors which are considered as the producer, recycler or

disposer. However, the EU is now facing problems of take-back WEEE from the

household even though the legislations require the producer to recall the WEEE when

it reaches its lifetime. EU is now concerned on addressing the incentives method to

122 THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, (20) “The producers of goods and products should be responsible for the management of the resulting post-consumer waste. Extended Producer Responsibility schemes form an essential part of efficient waste management, but their effectiveness and performance differ significantly between Member States. Thus the setting of minimum operating requirements for extended producer responsibility aiming at internalizing the end-of-life management costs according to high environmental standards and providing an incentive for producers to take into account environmental considerations along the products' life, from the design phase to their end-of-life is necessary in order to reduce their cost and boost performance, as well as to ensure a level-playing field and avoid obstacles to the functioning of the internal market.” 123 Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL. 1.2 Grounds for and objectives of the proposal. 124 DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL. ANNEX VIII, referred to in Article 11a (Early Warning System)

56

the product under the principle called pay-as-you-throw to be more effective for the

take-back system later on.

3.3 Principles on WEEE Management under Japanese Directives

In 1990, the Waste Treatment and Recycling Committee of the Industrial

Structure Council established the Guideline for Waste Treatment and Recycling for

ten business sectors and fifteen commodities. The guidelines, which stipulated rules

and objectives for businesses to follow, were intended to facilitate voluntary 3R-

related efforts in all relevant industries. In 1994, the guidelines were revised.

Measures and objectives under the Guidelines have been expanded and intensified

and new commodities, such as nickel-cadmium batteries, motorbikes, tires, lead

batteries for automobiles, small gas cylinders and fire extinguishers have been added.

The legal framework to promote a recycling society in Japan can be separated into

three parts:

3.3.1 Fundamental Laws’ which is:

a). Establishing a Sound Material-Cycle Society (Basic Framework

Law), April 2001

The purpose of the law is given in the Article 1125 which mainly

emphasizes on environmental conservation for health, welfare as well as the Nation’s

responsibilities to conserve the environment in order to maintain rich and harmonious 125 Establishing a Sound Material-Cycle Society Law, April 2001, Article 1 “The purpose of this Act is to promote comprehensively and systematically the policies for the establishment of a Sound Material-Cycle Society and thereby help ensure healthy and cultured living for both the present and future generations of the nation, through articulating the basic principles on the establishment of a Sound Material-Cycle Society, in conformity with the basic philosophy of the Environment Basic Act (Act No. 91 of 1993), clarifying the responsibilities of the State, local governments, business operators and citizens, and articulating fundamental matters for making policies for the formation of a Sound Material-Cycle society, including those for establishing the fundamental plan for Establishing a Sound Material-Cycle Society.”

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contacts between people and nature. This includes a fundamental environment plan

including natural cycles and materials cycles in society.

As mentioned that the law emphasizes on the responsibilities of the

Nation which is divided in to four categories as follows:

a). Responsibility of the State

The State is stipulated to be responsible for environmental

conservation by issuing and providing fundamental and broadly policies pursuant to

the “basic principles”126 on environmental conservation.127

b). Responsibility of Local Governments

The local governments are stipulated to be responsible for

environmental conservation by issuing and providing fundamental and broadly

policies corresponding to national policies and other policies in accordance with the

natural and social conditions of the local governments' jurisdiction, pursuant to the

basic principles.”128

c). Responsibility of Corporations

The corporations are required to conduct properly;

1. In conducting business activities, corporations are

responsible for taking necessary measures to prevent environmental pollution, such as 126 "Basic principles" stipulated in Basic Principles of the Cyclical use and Disposal of Circulative Resources refers to; Article 3: Establishment of a Recycling-based Society, Article 4: Proper Role Sharing Cost of Measures among the State, Local governments, Corporations and Citizens, Article 5: Preventing or Reducing Raw Materials, Products, etc. Becoming Wastes, Article 6: Cyclical use and Disposal of Circulative Resources, and Article 7: Basic Principles of the cyclical use and Disposal of Circulative Resources. 127 Establishing a Sound Material-Cycle Society Law, April 2001, Article 9 128 Establishing a Sound Material-Cycle Society Law, April 2001, Article 10

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the treatment of smoke and soot, polluted water and wastes, etc. resulting from their

activities, and to properly conserve the natural environment, pursuant to the basic

principles.129

2. In manufacturing, processing or selling products, or

engaging in other business activities, corporations are responsible for taking necessary

measures for ensuring proper disposal of the wastes generated from products and

other goods related to their activities, so as to prevent interference with environmental

conservation, pursuant to the basic principles.130

3. Besides the responsibilities prescribed in the preceding tao

Paragraphs, in manufacturing, processing or selling products, or engaging in other

business activities, corporations are responsible for making efforts to reduce the

environmental loads resulting from the use or disposal of the products and other

goods related to their activities; and for making effort to use recyclable resources and

other materials and services which contribute to reducing the environmental loads in

their activities, so as to prevent interference with environmental conservation,

pursuant to the basic principles.131

4. Besides the responsibilities prescribed in the above

mentioned, corporations are responsible for making voluntary efforts to conserve the

environment such as reduction of the environmental loads in the course of their

business activities; and for cooperating with the policies implemented by the State or

local governments with regard to environmental conservation, pursuant to the basic

principles.132

129 Establishing a Sound Material-Cycle Society Law, April 2001, Article 11 130 Id. 131 Id. 132 Id.

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d). Responsibility of Citizens

Citizens shall be responsible for making efforts to reduce the

environmental loads associated with their daily lives so as for the prevention

interference with environmental conservation, pursuant to the basic principles.

Moreover, the citizens are required to be responsible for making efforts to conserve

the environment and for cooperating with the policies implemented by the State or

local governments with regard to environmental conservation, pursuant to the basic

principles.133

Besides having responsibilities to conserve the environment, the law

also entitles the State to exercise legislative measure as well as financial and other

measures to implement the policies pursuant to environmental conservation.134

According to the financial measure, it is stipulated that the State shall take necessary

measures to promote projects which contribute to prevent interference with

environmental conservation whereby the public waste disposal facilities135 is listed in

the project. Nevertheless, the State shall have to provide technical assistance to

corporations regarding to the reduction of the environmental load in manufacturing,

processing or selling products, or engaging in other business activities and also

encouraging the use of recyclable resources and other materials, products and services

which contribute to the reduction of environmental load.136

3.3.2 A General Framework, which includes the following:

a). Waste Management and Public Cleansing Law (Waste

Management Law), April 2001

This aims to strengthen countermeasures against improper disposal of

industrial waste, ensures reliability of waste disposal, improves waste disposal 133 Fundamental Environment Law, August 1994, Article 12 134 Fundamental Environment Law, August 1994, Article 13 135 Fundamental Environment Law, August 1994, Article 23 136 Fundamental Environment Law, August 1994, Article 24

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facilities with involvement of the public and promotes reduced waste volume.137 This

law also emphasizes on restriction of waste exportation and importation138 as well as

the responsibilities of the State and Local governments to maintain cleanliness of the

nation by providing disposal facilities, necessary technical advice to the municipalities and

take necessary technical and financial assistance measures for promotion of waste

management technology development and also take suitable action for proper and smooth

waste management throughout Japan.139

In addition, the citizens shall perform

cooperation with the government sectors by exercising their activities for waste

reduction by restricting their waste discharge, using recycling and re-use of waste, sorting

waste prior to discharge, managing of waste by themselves as far as possible.140 On the

other hand, the businesses shall appropriately manage of the waste left as a result of their

business activities, develop products and endeavor to reduce the amount of waste by

recycling or re-use of waste.141

According to the policies that the State and the Local governments are

required to implement under this law shall include setting up the basic direction on waste

reduction and other proper management of waste and maintenance of waste disposal

facilities.142

b). Law for Promotion of Effective Utilization of Resources, April

2001

This law outlines the fundamental principles, obligations of the public,

manufacturers, local and central government offices, and government policies

regarding a recycling-based society, natural resource utilization, environmental

impact reduction, and fundamental plans for promoting a recycling-based society and

137 Waste Management and Public Cleansing Law, April 2001, Article 1 138 Waste Management and Public Cleansing Law, April 2001, Article 2-2 139 Waste Management and Public Cleansing Law, April 2001, Article 4 140 Waste Management and Public Cleansing Law, April 2001, Article 2-3 141 Waste Management and Public Cleansing Law, April 2001, Article 3 142 Waste Management and Public Cleansing Law, April 2001, Article 5-2

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other national plans.143 This law regulates to the industries and products as required

to promote the reduction of generation of by-products and the use of recyclable

resources, reusable parts as designated resources-saving industries.144 On the other

hand, the product shall be required to use resource-saving and have a longer service

life, use recyclable materials and reusable parts.145 Moreover, the products are also

required to be labeled indicating sorted waste collection and in their after use, need to

a higher extent, to be collected and recycled and using recyclable resources.146

3.3.3 Product Specific Laws which include, for example:

a). Containers and Packaging Recycling Law, April 2000

This law makes labeling to facilitate sorting and recovery a

requirement for plastic and paper containers and packaging. Greater efforts to

implement separate collection of packaging wastes in municipalities are expected.147

Recycle systems conforming to the Containers and Packaging Recycling Law are

designed to clarify the roles shared by consumers, municipalities and businesses and

assign their respective responsibilities whereby the consumers is required to cooperate

with sorted waste collection148 and the municipalities is required to collect sorted

waste containers and packaging.149 After the wastes have been collected and

transported to the business sectors, the businesses are required to recycle waste

containers and packaging sorted and collected by municipalities by themselves or

contracting out to designated bodies and recyclers.150

143 Law for Promotion of Effective Utilization of Resources, April 2001, Article 1 144 Law for Promotion of Effective Utilization of Resources, April 2001, Article 4 145 Law for Promotion of Effective Utilization of Resources, April 2001, Article 10 146 Law for Promotion of Effective Utilization of Resources, April 2001, Article 24 147 Containers and Packaging Recycling Law, April 2000, Article 1 148 Containers and Packaging Recycling Law, April 2000, Article 4 149 Containers and Packaging Recycling Law, April 2000, Article 6 150 Containers and Packaging Recycling Law, April 2000, Article 4

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b). Home Appliances Recycling Law, April 2001

This law sets forth a novel recycling scheme, the principle of which is

to newly impose obligations on home appliance manufacturers and retailers, in order

to ensure proper waste treatment and efficient use of resources by reducing wastes

and making full use of recyclable materials.151 The law provides for recycling of

household electrical goods: Air conditioners, Televisions, Refrigerators and freezers

and Washing machines inclusive clothes driers.152 In response, the seven leading

manufacturers of household appliances formed themselves into two groups (a

Matsushita-Toshiba alliance, and a second group comprising Hitachi, Sanyo, Sharp,

Mitsubishi, and Sony). Each group started its own recycling network by establishing

facilities such as recycling plants and designated collection depots and setting

recycling fees. According to the responsibilities of waste generators, retailers and

manufacturers regarding to the properly recycling activities, the law sets forth roles of

waste generators, inclusive consumers or business operators, to transfer items that are

classified under the four categories of home appliances to retailers in a proper manner

and pay necessary collection and recycling fees as demanded by retailers.153 And the

retailers shall take back the four categories of home appliances that they have sold, or

shall take them back at the request of waste generators who buy new ones to replace

old ones and required to deliver the four categories of home appliances to the

manufacturers.154 Moreover, the retailers must issue home appliance recycling

coupons to manufacturers, send copies to waste generators and keep coupons in

storage.155 In addition, manufacturers and importers obliged to take back, from

retailers, four categories of home appliances, which they have manufactured or

imported and being responsible for recycle them properly and having recycling fees

151 Home Appliances Recycling Law, April 2001, Article 1 152 Home Appliances Recycling Law, April 2001, Article 4 153 Home Appliances Recycling Law, April 2001, Article 8 154 Id. 155 Home Appliances Recycling Law, April 2001, Article 9

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public.156 Besides the responsibilities of the mentioned business sector, this law also

states the obligation of designated body, referred as Association for Electric Home

Appliances to recycle home appliances whose manufacturers are unknown.157 And

the State and Local governments shall be obligated to promote collection,

transportation and recycling of used home appliances and may deliver home

appliances, which they have collected, to manufacturers or the designated body.158

Moreover, the law also provides the recycling coupon systems operated by the

designated body whereby the system introduced to ensure that specified kinds of

home appliances are transferred from retailers to manufacturers in a proper manner

and enable waste generators to check whether recycling is certainly performed or

not.159

c). Green Purchasing Law, April 2001

The law was established to actively procure environmentally friendly

goods e.g. recycled goods and to promote the provision of useful data concerning

green purchasing.160 The law specifies the types of environmental goods to be

promoted as a priority for procurement e.g. communication and printing paper

(recycled paper), cars (low pollution vehicles), copiers (energy-saving types), etc.,

stipulated under the basic policy which issued by the State and independent

government institutions.161 Regarding to the responsibilities under the law, it

stipulates that the responsibilities of businesses to and citizens are required to choose

eco-friendly goods to the greatest extent possible.162 In addition, the businesses that

engaged in manufacturing, importing or selling goods or providing services shall

156 Home Appliances Recycling Law, April 2001, Article 10 157 Home Appliances Recycling Law, April 2001, Article 11 158 Home Appliances Recycling Law, April 2001, Article 12 159 Home Appliances Recycling Law, April 2001, Article 22 160 Green Purchasing Law, April 2001, Article 1 161 Green Purchasing Law, April 2001, Article 6 162 Green Purchasing Law, April 2001, Article 5

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endeavor to provide the client with the necessary information for identifying the

environmental burden of the goods or services concerned.163

3.3.4 Problem of WEEE Management in Japan

The Japanese Environment Agency appears to have tried to include

extended product responsibility (EPR) clauses in the bill, but industry’s firm

resistance to any EPR concept made the plan ineffectual. As the plan does not require

manufacturers to internalize waste-management costs within the price of products and

goods, it fails to bring about the intended producers’ responsibility. The Environment

Agency is unable to advance the EPR concept because Japanese industry as well as

the METI expresses strong disapproval. The result is that Japanese WEEE continues

to be shipped to other countries, and the waste producers are free from all legal

responsibilities. Japan not only suffers a severe environmental setback by this policy

failure, it establishes a precedent that may influence other Asian countries.

Moreover, the consumers are in a position to have a right of choice of

supplier when they purchase products. Even though businesses produce the

environmental-friendly design regarding to the environmental conservation policy,

issued by the State, and construct a system to promote the recycling, reuse and

recover of the products due to the green materials used in manufacturing, these

operations become impossible if the consumers do not participate in the system. In

addition, even the businesses produce the environmental-friendly products in

concerning with environmental load reduction, the activities of production and sales

vary according to how the consumers show their needs. If consumers take the lead in

purchasing products with low environmental load, the incentive to development of

environment-friendly products affects businesses and new products and services

163 Id.

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expand if the range of selection by consumers expands. Therefore, it results that the

consumers are the key person to processing the WEEE management.164

It is necessary to establish an environment in which the industrial

structure and the economic system themselves independently move toward a recycle

business based upon market mechanisms, in order that the policy may be permanently

rooted in the economic system.165 Thus, the recycling businesses supporting measure

has been created and developed. The approach was based on support by means of

reform of the Waste Treatment Law and other relevant provisions and then economic

incentives has been introduced such as subsidy, preferential treatment on taxation,

low interest on financing for the businesses that pioneer recycling, and by promoting

the 3R166 initiative by enactment of environmental resources recycling.167

So far, the Ministry of Economy, Trade and Industry has supported the

introduction of recycling relating equipment by businesses through tax incentives, a

low interest financing scheme by governmental financial institutions, and a debt

guarantee scheme by the Industrial Infrastructure Establishment Fund.168 Also,

technology development relating to recycling has been promoted by creating support

for research and development activities carried out by businesses, by tax incentives

for research and development relating to recycling, and by promoting the

164 Planning Working Group Waste and Recycle Sub-committee Environment Committee Industrial Structure Council. Ministry of Economy, Trade and Industry, Japan. Towards Advancement of a Recycling-Oriented Economic System. p. 39 165 Id. 166 The principle of reducing e-waste, reusing and recycling resources and products is often called the “3Rs”. Reducing means choosing to use things with care to reduce the amount of e-waste generated. Reusing involves the repeated use of items or parts of items which still have usable aspects. Recycling means the use of waste itself as resources. Waste minimization can be achieved in an efficient way by focusing primarily on the first of the 3Rs, “reduce,” followed by “reuse” and then “recycle.” 167 Planning Working Group Waste and Recycle Sub-committee Environment Committee Industrial Structure Council. Supra note113 p. 40 168 Ministry of Environment. Japan’s Experience in Promotion of the 3Rs. For the Establishment of a Sound Material-Cycle Society. p.25

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development of technologies from the fundamental level to extension of their

practical usage.169

3.3.5 Plan on Applying Tax Measures on Solving WEEE Management in

Japan

The WEEE management method in Japan is exercised by complying

with the policy makers by requesting retailers to collect the EEE and postal networks

for computers as of the kinds. The main purpose inspired by the idea that smaller item

like cell phones, computer hardware or small electronic devices are enable and easy to

transport by postal networks. Moreover, the method provides convenient to those

consumers by not going to the assigned WEEE drop-off location. This WEEE

management method shows that the Japan regulations regarding to this study, at the

same time, comply the both producer and consumer responsibilities to manage the

environmental crisis in good conditions. Accordingly, the consumer shall bear the

cost of recycling WEEE and the producer shall bear the cost of operation processes,

including the recycling and collecting his own recycling products. Moreover,

producer responsibility as mentioned shows that the model of take-back system is

capable of distinguishing brands and properties of the electronic devices by using

barcode system. The producer of each product can identify the quantity of his

recycling products in the market and can monitor to collection method. The take-back

method shall be considered as create incentives for greener designs170 because of

extensive producer control on the recycling operations. Not only the take-back system

can monitor the electronic devices status, but also can guarantees fair cost allocation

among recycling producers. The product design could be influence to the recycling

producers because the laws and regulations presently pay most attention on recycling

method whereby the other method as reuse method shall not be promoted for

169 Planning Working Group Waste and Recycle Sub-committee Environment Committee Industrial Structure Council. Supra note113 p. 40 170 Tojo, N. 2004. Extended Producer Responsibility as a Driver for Design Change: Utopia or Reality? IIIEE Dissertations 2004:2, Lund University.

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privileges as the recycling does. Thus, the producers shall have to design the products

to be fully recycled regarding to the recycling cost reduction.

For instance, the collective systems could reduce the design incentives

whereby most of young generation does not emphasized on the recyclability;

therefore, in solving this problem, the government should provide the incentives on

durable designs in accordance with the extension of product lifetime using.171

171 Tojo, N. 2006. EPR Program for Electrical and Electronic Equipment in Japan: Brand Separation? INSEAD WEEE Directive Series Presentation.

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CHAPTER 4

TAX MEASURES AND LEGAL PRINCIPLES IN WEEE

MANAGEMENT IN THAILAND

Due to the economic growth in developing countries especially in Thailand,

the trend of using EEE with new technologies increases the demand for EEE as well

as the coming WEEE stream crisis. Additionally, a significant amount of WEEE is

also languishing in Thailand and there is no direct legal measure in controlling the fast

expansion rate of WEEE. Therefore, in managing WEEE properly as the limited legal

provisions provided under Thai legislations, the relating legislations are applied to

manage the WEEE problems recently. Moreover, most of the relating legislations that

applied for WEEE management are commonly stated for solid waste management. On

the other hand, management of WEEE shall have to be conducted separately from

other wastes. Therefore, this thesis will study on the related legal measures to analyze

the problems and figure out the proper solution and treatment of such problems.

4.1 Environmental Legal Measure relating to WEEE Management

Regarding to the existing legal provisions which indirectly controls the

management of WEEE, the relating provisions could be applied for controlling the

WEEE management that are:

4.1.1 The Enhancement and Conservation of National Environmental

Quality Act B.E. 2535

The Act in related to the hazardous wastes management, which shall be

considered in two categories consisting of hazardous wastes management and

provisions on hazardous waste management.

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a). Hazardous Wastes Management Provision

According to the management of hazardous wastes under the

Enhancement and Conservation of National Environment Quality Act B.E. 2535

(ECNEQ), there are provisions relating to the hazardous wastes management

stipulated in Chapter IV “Pollution Control”, Part 6 “Other Pollution and Hazardous

Waste”, Section 78172 and Section 79.

According to the Section 78 which provides the scope of waste

management whereby concerning the collection, transportation and other

arrangements for the treatment and disposal of garbage and other solid wastes. The

word “solid wastes” stipulated under the Section 78 could be defined as one of the

meaning of the word “Waste” stipulated under Section 4.173 However, the “solid

waste” itself is not considered or interpreted as hazardous waste or hazardous

substances; therefore, the scope of waste management given under Section 78 shall

not solely comply with the hazardous waste management, or even WEEE

management.

In consideration to this, even the hazardous waste is not

included to the scope of Section 78, due to the lack of definition stipulate. However,

in practical, the Minister advised by the Pollution Control Committee, shall have the

power to issue ministerial regulations specifying the types and categories of

hazardous wastes generated from the production and usage of chemicals or hazardous

substances in the production process of industry, agriculture, sanitation and other

172 Enhancement and Conservation of National Environmental Quality Act B.E. 2535, Section 78 173 Enhancement and Conservation of National Environmental Quality Act B.E. 2535, Section 4 “In this Act "Waste" means refuse, garbage, filth, dirt, wastewater, polluted air, polluting substances or any other hazardous substances which are discharged or originate from point sources of pollution, including residues, sediments, or the remainders of such matters, either in the state of solid, liquid or gas.”

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activities which shall be brought under control. For this purpose, rules, regulations,

measures and methods must also be prescribed for the control of collection, storage,

safety measures, transportation, import into the Kingdom, export out of the Kingdom,

and for proper and technically sound management, treatment and disposal of such

hazardous wastes.174

4.1.2 Public Health Act B.E.2535

According to the Public Health Act B.E. 2535, there are only

provisions stipulated in controlling the solid wastes and infectious waste which

exclude the hazardous waste or WEEE. In applying the measure of solid waste and

infectious waste with the hazardous or WEEE management would not be efficiently

conducted due to the specific nature of the wastes. Moreover, the Act assigns

authority for local government to issue regulations in collecting, transporting and

disposing the solid waste itself, but in case of the hazardous waste and WEEE

occurred from the household sector, there is no legal provisions provided directly on

how to collect, transport and dispose.

According to the Public Health Act B.E. 2535 entitles the authority to

local government to issue regulations regarding to the collecting, transporting and the

disposal of the solid waste, the Act also entitles the local government in issuing

regulation on prescribing any business being detrimental to health which stipulated in

Section 31175. Thus, the recycle business is one of the businesses that, by the

Ministry of Public Health Announcement176, announced as being business

detrimental to health which requires registering to the local government. Regarding to

this, the local government may issue regulation on hazardous waste and WEEE

management.

174 Enhancement and Conservation of National Environmental Quality Act B.E. 2535, Section 79 175 Public Health Act B.E. 2535, Section 31. 176 Ministry of Public Health Announcement No. 13/2543 on detrimental to health business dated 3 May B.E. 2543

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Moreover, there is a Ministry Regulation on requirement, method and

measure in controlling business being detrimental to health B.E. 2545 which provides

the legal advices in operating business with the best care by complying with the

regulations that government has enacted as the standard.

4.1.3 Determining Plans and Process of Decentralization to Local

Government Organization Act B.E. 2542

This Act provides the authority to local government to generally

manage public services for the benefit of local communities as providing clean city in

perfect order, waste management system and public health177. The local government

shall collect any service fees on providing public services as mentioned.178 It shows

that the Act provides the local government to exercise its right the serve the public

services to local communities regarding to the waste management. However, only the

public services that could have done require legal provisions stipulated its right to do

so. However, in practical, the local government may exercise it right stipulated under

the Public Health Act B.E. 2535 in monitoring and control the business activities as

Old Item or Out of Order Item Collection Business179 to be listed as business

detrimental to health.180

4.1.4 Factory Act B.E. 2535

The Factory Act is an important provision which provides the purpose

of control of the engagement in a factory business which may be considered on the

necessity for the control, prevention of nuisance, prevention of damage, and

prevention of danger in accordance with the gravity of impact on the public or 177 Determining Plans and Process of Decentralization to Local Government Organization Act B.E. 2542, Section 16 (17) and (18) and (19). 178 Determining Plans and Process of Decentralization to Local Government Organization Act B.E. 2542, Section 23 (19) and Section 24 (12) and Section 25 (20) 179 Recommendation of the Public Health Committee No. 5/2549 on Old Item or Out of Order Item Collection Business being Controlled 180 Public Health Act B.E. 2535, Section 32

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environment181, especially on the process of prescribing the standards and methods

of controlling the discharge of wastes, pollutants or anything that affects the

environment as a result of the engagement in a factory business.182

According to the current status of WEEE management, business on

sorting and/or landfill facility of wastes is regulated as Factory type 105183 and

recycling facility in which unusable industrial products or industrial wastes being

utilized in production process to produce raw material or new product is regulated in

the Factory type 106184 issued by Notification of the Ministry of Industry on

Descriptions of Factory Types and Sizes, Procedure for the Control of Discharges of

Wastes, Pollutants, or Any Substances that Cause Adverse Effects on the

Environment, Qualifications of Supervisors and Operators, and Criteria for

Registration of the Supervisors of Pollution Prevention Systems B.E. 2545.185

However, according to the research of the Pollution Control Department found that

only twenty-two permitted factories related to WEEE collecting and dismantling186.

In conducting the Business Type 105 and 106 as mentioned has no specific license for

recycling WEEE, no formal recycling factory of WEEE in Thailand, no mechanical

large-scale dismantling equipment, only manual dismantling with simple tools is used

and Most of WEEEs goes to informal sectors, i.e. waste pickers, waste buyers, junk

shops, waste-recyclers, and waste re-processors. These problems could lead to the

major problems if Thailand does not improve or review the legal provision relevant to

WEEE management.

181 Factory Act B.E. 2535, Section 7 182 Factory Act B.E. 2535, Section 8(5) 183 Ministerial Regulation No.15 B.E. 2544 on Designate the new industry categories 105 and 106 Issued pursuant to the Factory Act B.E. 2535 184 Id. 185 Subject to Ministerial Regulation No. 2 B.E. 2535 Issued pursuant to the Factory Act B.E.2535 186 Pornpimon Chareonsong. Pollution Control Department. E-Waste Management in Thailand. 4th International E-waste Management Network (IEMN) Workshop, 14-17 July 2014, Hanoi, Vietnam

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4.1.5 The Draft of Waste Electrical and Electronic Equipment

Management and Other Wastes Act B.E. …

According to the Draft of Waste Electrical and Electronic Equipment

Management and Other Wastes Act B.E. … (herein after referred as “the Draft”)

which was issued by the Pollution Control Department187, it is written through the

aspect of whole process of WEEE and providing managing method through parts of

EEE life-cycle. The extended producer responsibility (EPR) is considered under the

Draft provisions by assigning the producer responsibility for the cost of disposing

electronic products and to produce the EEE as green product concerning on the

method of recycle, reuse and recovery. The Draft also provides the provisions relating

the WEEE management and the collection methodology which could help reduce the

thrown away of EEE from individual sectors and prohibit the producer to deny its

responsibility after producing the EEE.

The main important contents of the Draft might be concluded as

follows:

a). The Draft shall not be complied with (1) management of waste and

other unused materials within the scope of Factory Act B.E. 2535, (2) management of

infectious waste under the Public Health Act B.E. 2535, (3) management of

radioactive waste under the Atomic Energy for Peace Act B.E. 2504, (4) Exportation

of products that produced in Thailand, (5) Reusing or recycling of WEEE, and (6)

Importation and exportation of hazardous substances under the Hazardous Substances

Act B.E. 2535.188

187 Memorandum of Consideration on the Draft of Waste Electronic and Electrical Equipment Management and Other Wastes Act B.E. … 188 the Draft of Waste Electrical and Electronic Equipment Management and Other Wastes Act B.E. …, Section 3

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b). The definition of EEE189 and WEEE/E-waste190 are precisely

stipulated in the Section 4 of the Draft whereby given the definition in global terms

which would support the government to provide proper WEEE management than the

existing legal principles in other laws.

c). WEEE Management Committee is mainly entitled to lay down

policy and to determine measure and plan on controlling and managing WEEE and

other kinds which the plan shall have to be accepted by the Committee.191 The

committee is also entitled to set the registration fee by the rate of three percentages of

total income of the producers192, inclusive fee on EEE and any other fees relevant to

the EEE.193 Moreover, the fees collected under the Draft are not required to be

transferred to the Thai national fund.194 The producers and distributors are required

by the Draft not to sell any EEE that is not registered195, as well as the consumers

which is required not to throw away the WEEE into the bin mixing up with other kind

of waste.196

d). Assigning kinds of EEE or WEEE which are being controlled and

enforced under the Draft, including the producer and distributor. Moreover, the Draft

assigns the producer to set up the WEEE management policy, signage197 and

189 Id. Section 4 “Electrical and Electronic Equipment means the product that needs electric current or magnetic field to work and if it is improperly managed when it becomes Waste Electrical and Electronic Equipment, it would cause negative effect to environmental and human health…” 190 Id. Section 4 “Waste Electrical and Electronic Equipment means Electrical and Electronic Equipment, inclusive any part of EEE that expired of lifetime using or abandoned or intended to be discarded by its owner”. 191 Id. Section 16 192 Id. Section 17 193 Id. Section 7 194 Id. Section 17 195 Id. Section 20 196 Id. Section 23 197 Id. Section 19 paragraph 2

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report198 on the EEE submitting to the Committee. It also requires the producer to

concern on reducing of hazardous substances use in EEE and producing more on

green product (reusable, recyclable and recoverable products).199

e). Assigning the WEEE managing details on drop-off location, take-

back system, collection methodology and recycling, reusing and recovery

methodologies , disposal and transportation of WEEE.200

f). Set up the information center to provide the knowledge and

methodology relevant to WEEE management in the Pollution Control Department to

be the information distribution center and cooperation with other government

departments, local administrative and private sector, inclusive the producers and

distributors registration information, collection location and its network cooperation,

registration recycling factory and any other information relevant to the Draft

requirement.201

g). Set up the achievement for the producers to collect and recycle the

WEEE quantity per annum which might be calculated by the EEE sale record in

accordance with the Committee decision.202

h). Stipulating the details on incomes collected in the form of fees

under the Draft principles. The incomes shall be collected to Environmental Funds

under the Enhancement and Conservation of National Environmental Quality Act

B.E. 2535 whereby separating to specific account for being used in accordance with

the Draft activities.203 In light of the fees collection under the Section 7 of the Draft,

198 Id. Section 18 199 Id. Section 15 paragraph 1 and Section 19 paragraph 1 200 Id. Section 15 paragraph 2 201 Id. Section 22 202 Id. Section 32 203 Id. Section 34

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the fees shall be separately used in the each activity stipulated in Section 34 of the

Draft as follow:

(1) To support in any expenses of the take-back center and the

recycling and disposing companies,

(2) To support in any activities of WEEE information center

under Section 22 of the Draft and any other organizations that publishing the relevant

information,

(3) To support in any research and development of the green

product, inclusive reuse, recycle, recovery and disposal, and

(4) To remedy the person who got the effect of damage, loss

and any impact from the pollution occurred from WEEE under the Draft.204

Nevertheless, the Committee established by the Draft is entitled to

provide some incentives for the producers and distributors to conserve the

environment by providing tax incentives and fee exemption to the WEEE reduction,

separation, reusing, recycling, recovering, disposing and producing the green product

(environmental sound). Moreover, the Committee might provide some incentives to

the researching and developing the EEE and WEEE which concern on environmental

conservation, inclusive the supporting fund and investment support.205

i). Stipulating the authority of local administrative and government

official to monitoring and controlling in accordance with principles of the Draft.206

204 Id. Section 34 205 Id. Section 35 206 Id. Section 36

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j). Sanction shall be applied to the person who is not complying with

the principles stipulated in the Draft.207 However, there is no sanction on the

consumer who does not comply with the Draft which shall be considered as a

loophole of this enforcement under the Draft.

k). Set up the range of time for the producers and distributors which

are controlled and enforced under the Draft to register to the Pollution Control

Department. Moreover, the Draft is providing the governmental funds for using in the

Environmental Funds used in such activities at first.208

4.2 Tax Measures Relevant to WEEE

Since this thesis mentioned on using the existing legal provisions regarding to

control and order method of environmental legal provisions and the provisions cannot

meet the highest potential in conserving the environment aspect. Therefore, the

taxation measure is an option to help persuade individuals to participate and voice

their concerns. Referring to the Chapter 3 that foreign countries apply the taxation

measure to reduce and change consumer behavior where the result shows that the

quantity of using EEE is going accordingly with the disposal plan.

However, according to the Thai taxation method that exists presently, it shows

that EEE and the management of WEEE is not well managed. The reason might be

determined as the taxation in Thailand mainly aims to collect tax for the government

funds but the intention to conserve the environment is likely denied due to Thailand is

a developing country which has to maximize the industrial works for gaining profit as

the top rank income of the country.

The taxation measure relating to WEEE management under the scope of this

study shall include Excise Tariff Act B.E. 2527, Revenue Code, Investment Privilege

207 Id. Section 42-52 208 Id. Section 53

78

Act B.E. 2520 and the Draft of Waste Electrical and Electronic Equipment

Management and Other Wastes Act B.E. ... which would be explained hereunder.

4.2.1 Excise Tariff Act B.E. 2527

Excise tariff or excise tax is mainly imposed tax from specific products

and services under the aspect of those products and services are considered as luxury

or high value. The EEE is considered in schedule attached to the Act, Part III

Electrical Appliance which the definition states that “any product which is powered

by electricity including device applied with or related to electricity.”209 However, the

act only stipulates two kinds of electrical appliance which are air conditioner and

lamp or chandelier for ceiling or wall but not including lamp for outdoor public place

or public road; therefore, other kind of EEE shall have to notified by the Minister in

the Government Gazette which is one of the option now for the government to insert

all those EEE left-out of the list into the Excise Tariff schedule.

4.2.2 Revenue Code

The Revenue Department has raised the tax incentives to persuade both

government sector and individual sectors to participate in environment conservation

which the legal measure named tax measure on technology researching and

developing which are;

4.2.2.1 Royal Decree issued under Revenue Code on Revenue

Exemption (Edition 297) B.E. 2539

This Royal Decree provides the tax incentives to the juristic

person who pays for the technology research and development at the rate of a hundred

percent referring to the ministerial regulation.

209 Attachment of Excise Tariff Act B.E. 2527, Part III Electrical Appliance.

79

4.2.2.2 Royal Decree issued under Revenue Code on Cost of Wear

and Tear and Depreciation (Edition 145) B.E. 2527

In accordance with technology research and development, the

cost that juristic have paid for such conduct to install the machinery or its part shall be

redeemed the price at the rate of forty percent of capital invested; however, the

machinery or its part should not cost less than one hundred thousand baht as required.

Even though the incentives has been provided for the juristic

person to persuade individual sector to participate in the government campaign, but

the limit of tax incentives is only provided for the juristic person which is not the

main cause of the WEEE stream incurred presently. Most of the WEEE has come

from the end-of-life using by household and thrown away mixing with solid waste.

This indirect tax incentives shall not be effectively complied with the environment

conservation aspect; therefore, the government shall have to arrange more tax

incentives and wide-covered to the consumer behavior whereby explaining hereafter.

4.2.3 Investment Promotion Act B.E. 2520

The Investment Promotion Act provides the tax incentives in order to

solve the environmental problems relating to the hazardous waste disposal whereby

the business activity prescribed by an announcement of the Board of Investment

(BOI) shall be granted exemption of juristic person the income tax.210 According to

the Section 31 of the Act, the waste management business activity under the

announcement of the Board of Investment No. 2/2543 on category, size and

requirement for business activities that shall be promoted.

210 Investment Promotion Act B.E. 2520, Section 31

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4.2.3.1 Waste Disposal Business211

The waste disposal business is a specific business activity

which is required for allowance or authority from the responsible or relating

government department before having promoted by the BOI and the promotion of

such shall be:

a). Machinery import tax exemption

b). Juristic person income tax exemption for 8 years

c). Other promotions on each promotion zone shall be applied

4.2.3.2 Recycle Business212

The recycle business activity shall include reuse, recycling, and

recovery business are considered as the specific business activities alike waste

disposal business and also the recycle business activity is required for allowance or

authority from the responsible or relating government department before having

promoted by the BOI and the promotion of such shall be:

a). Machinery import tax exemption

b). Juristic person income tax exemption for 8 years

c). Other promotion on each promotion zone shall be applied

d). Must locate in industrial zone or industrial promotion zone

only, except having other BOI committee decision

e). Business activity is only promoted for reuse, recycle and

recovery of domestic product.

211 the announcement of the Board of Investment No. 2/2543 on category, size and requirement for business activities that shall be promoted, Article 6.4.2 (category 7.26) 212 the announcement of the Board of Investment No. 2/2543 on category, size and requirement for business activities that shall be promoted, Article 6.4.2 (category 7.27)

81

According to the tax incentives provided for the waste disposal

business and recycle business, it shows that even the government have stipulated

some tax incentives to the business that handle WEEE management but the most

government could do is only for the industrial or business sector which does not meet

the environment conservation aspect. Therefore, the government needs to provide

more type of tax incentives and apply the Polluter Pays Principle to change

consumers’ behavior.

4.3 The Analysis of Existing Thai Legislations

Regarding to Factory Act B.E. 2535, Public Health Act B.E. 2535, Hazardous

Substances Act B.E. 2535 and Enhancement and Conservation of National

Environmental Quality Act B.E. 2535, the Thai legislations could not cover and tackle

the problems of WEEE streams in Thailand because they apply to general kinds of

waste, including general kind of hazardous substances213 that are listed in Hazardous

Substances Act B.E. 2535 only for disposal process. However, the disposal process

that has been conducted nowadays could not reduce the WEEE streams in Thailand

due to the quantity of WEEE stream, competent official operation and the consumer’s

behavior.

Referring to the Enhancement and Conservation of National Environmental

Quality Act B.E. 2535 that generally applies to industrial and infectious waste

213 Hazardous Substances Act B.E. 2535, Section 4 “In this Act, “Hazardous substance” means the following substances: (1) an explosive; (2) an inflammable substance; (3) an oxidizing agent and a peroxide substance; (4) a toxic substance; (5) an infectious substance; (6) a radioactive substance; (7) a mutagen; (8) a corrosive substance; (9) an irritating substance; (10) other substances, whether chemical or else, which may be harmful to person, animal, plant, property or environment;…”

82

management through environmental planning and environmental quality standards

and monitoring. However, the law does not emphasize on WEEE management but it

aims to control and reduce pollution which would be applied when the pollution has

been occurred. Nevertheless, the legislations are not efficiently enforced which it is

found that when any damages arisen from hazardous substances or hazardous waste

by producing, recycling, treatment, disposal and transportation, there is no legal

measure to enforce the non-compliance to be fully liable for the damages. Despite the

Enhancement and Conservation of National Environmental Quality Act B.E. 2535

stipulates the strict liability to the person who allows the leakage or contamination of

pollution that causes of death, bodily harm or health injury of other person or causes

damage to the property of any person (private or the state) whether it is willfully or

negligently conducted, the person shall be liable and has to compensate to the injured

or damaged person all expenses including government service for the clean-up of the

pollution214, but the environmental litigation is not easy for the injured or damaged

person to prove that the cause has been arisen from such pollution leakage

contamination.

On the other hand, the Draft of Waste Electrical and Electronic Equipment

Management and Other Wastes Act B.E… concerns on managing the whole life-cycle

of WEEE i.e. starting from environmental friendly design (eco-design which could

extend the EEE lifetime, increasing durability and easy to separate its parts for reuse,

recovery and recycle), take-back system, collection system and recycling process

which would be considered as the prevention solution on WEEE management since

the starting process. Therefore, it is necessary to enact the Draft to tackle the WEEE

streams in Thailand.

214 Section 96 of the Enhancement and Conservation of National Environmental Quality Act B.E. 2535

83

CHAPTER 5

CONCLUSIONS AND SUGGESTIONS

5.1 Conclusion

The WEEE management problem occurred in Thailand has risen with the fast

growing of technology along with the trend of using high technology in new EEE

which causes the large quantities of producing EEE. All those EEEs contain many

substances which are mostly categorized as hazardous substances that could harm

environmental and human health. The problem is incurring when those EEEs have

come to the end of its life span. Most of the individual sectors do not return or

separate WEEE to provided places or bins but are thrown away by mixing along with

other forms of waste which the government will have to spend governmental funds to

separate WEEE from other waste forms. Most of the WEEE is not disposed correctly

and the hazardous substances contained in the EEEs can possibly leak into the

ecological system during the improper disposal. Therefore, the government will have

to stipulate the correct and proper disposal or WEEE managing measure that involves

the individual sector’s participation.

In regards to the existing legal provisions in Thailand, the whole process of

WEEE management in Thailand appears to have no direct legal provision in regards

to WEEE management. The legal provisions being enforced shall be considered as

indirect provision whereby the definition of WEEE has not yet been defined in any

existing law. Since the definition has not yet been stipulated, it would be difficult for

the responsible department of the government to exercise its managing plan of WEEE

management. Furthermore, the conflict of duty is in doubt because of the many

indirect provisions that are providing authority to the different departments.

Moreover, the existing provisions are mostly in command and control strategy;

therefore, the managing of WEEE could be difficult to reach the environmental

conservation aspect. In contrary, if the government addresses the incentives measure,

84

specifically the tax measure, from the manufacturing process up to the disposal or

recycling processes, this could persuade not only the industrial sector, but also the

household sector, to participate in environmental sound management. Moreover, in

regards to the Draft of Waste Electrical and Electronic Equipment Management and

Other Wastes Act B.E. …, there is a provision stipulated on tax incentives215 which

sounds effective enough to be applied. Moreover, Section 34 also provides the general

scope of tax incentives which can be issued under the ministerial regulation later on.

5.2 Suggestion

According to the problems on WEEE management that incurred from various

factors and the analyzing legal measures as explained. The suggestions would be as

follows:

1). Due to the uncontrollable WEEE stream that is rapidly growing lately, the

proper solution to stop or reduce the quantity of WEEE stream by the government is

to: first, apply the tax measure by adding excise tax to the EEE that could be

considered as extravagance item for example, cell phones or laptops which are not

durably designed and are not using the environmental-friendly materials. By adding

tax to such products, it would change the consumer’s behavior. The expected result

from adding tax into these products that causes the high increase in the WEEE stream

would be the reduction of the number of consumption. However, if some products are

considered as important devices or comfort and convenience to human life, the

solution of adding tax to these products may not be efficient because consumers will

still buy those products even though the cost is higher than it used to be.

2.) There are weak points in the first solution. In case that the importers are

able to import EEE with poor designs, not using environmental-friendly materials in

manufacturing, containing hazardous substances, and having a short lifespan, the

price of these items would be cheap and easy to buy. If there are many consumers that 215 the Draft of Electrical Equipment Management and Electronic and Other Wastes Act B.E. …, Section 34

85

do not intend to participate with government policies, the first solution will never

become effective. Therefore, the government should review the provision on

restrictions of imported and exported WEEE to other countries. Moreover, in

stipulating or empowering such provision on restriction of imported and exported

WEEE, the government should state the liability and sanction in the case that the

producers manufacture the products that are lower than the standard that has been set.

3). In WEEE stream reduction, recycle method is one of the best solutions to

reduce the WEEE stream. The government should promote its business sector and its

citizens by applying tax incentives. The tax incentives sould be in form of treatment

on taxation, income tax reduction, tax reduction on purchasing technology

improvements, purchasing environmental-friendly technology for manufacturing,

lowered interest financing scheme by governmental financial institutions, and debt

guarantee schemes by the Industrial Infrastructure Establishment Fund.

4). In promoting the individuals to participate with the government policies on

environmental conservation, the government should proceed the take-back system in

to the EEE market by starting with Branded Products to return tickets where the cost

of refund is added. In regards to this solution, the consumer behavior would be

changed because in every product they have bought, the purchase would have cost

them the obligated money for the refund. However, using this method would slightly

allow the government to gain funds but the government should have to provide the

public location of receiving-back and transporting WEEE as well as including storage

as a public service.

5.) Due to the take-back system, the consumer would automatically sort or

separate WEEE out of the other waste forms which would reduce the governmental

funds spent on sorting waste that is currently happening nowadays. Moreover, when

the WEEE is automatically separated from other waste forms by consumers

themselves, the disposal as well as recycling, reusing and recovering method would

be efficiently and properly conducted.

86

6). According to the lack of direct legal provisions to manage and exercise the

WEEE management, the government should enact the Draft of Waste Electrical and

Electronic Equipment Management and Other Wastes Act B.E. … in order to assign

responsibilities to the government, local government, businesses, as well as citizens to

cooperate in WEEE management of the country in accordance with minimizing the

legal loophole. In consideration of the Draft, this shows that the life-cycle of EEE

should be monitored and controlled until it becomes unusable and transported back to

the producer or registered recycler. The method mentioned in suggestions 1). to 5).

are already stated in the Draft as well. However, the Draft still needs to be more

reviewed in accordance with its wide scope of duties and practices under the

provisions.

87

REFERENCES

1. BOOKS AND BOOK ARTICLES

1.1 ENGLISH BOOKS

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Ishi, Hiromitsu. The Japanese tax system. 2nd ed. Oxford : Clarendon Press, 1993

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Somchai Richupan. Integration of tax planning in development planning; the case

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1.2 THAI BOOKS

อุดมศักดิ์ สินธิพงษ. กฎหมายวาดวยความเสียหายสิ่งแวดลอม ความรับผิดทางแพง การชดเชย

เยียวยา และการระงับขอพิพาท. พิมพครั้งท่ี 1. กรุงเทพมหานคร: สํานักพิมพแหง

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จํากัด, 2551. (Somkit Bangmo. Business taxation. 13th ed. Bangkok: Vityapat

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Electronics Takeback Coalition. “E-WASTE: The Exploding Global Electronic Waste

Crisis,” An Issue Briefing Book.

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waste is there in US Basements and attics? Results from a national survey,

Journal if Environmental Management, 90, PP 3322-3332

Sthiannopkao S. and Wong M. H., (2012), Handling e-waste in developed and

developed countries, Initiatives, Practices, and Consequences, Science of the

Total Environment.

Robinson B. H., (2009), E-waste, An assessment of global production and

environmental impacts, Science of the Total Environment, pp 183-191

Osibanjo O. and Nnorom I. C., (2007), The challenge of electronic waste (e-waste)

management in developing countries, Waste Management and Research, 25,

pp489-501

Widmer R., Oswald-Krapf H., Sinha-Khetriwal D., Schnellmannc M, and Heiz Boni

H., (2005), Global perspectives on e-waste, Environmental Impact

Assessment Review, 25, pp 436-458

Ray A., (2008), Waste Management in developing Asia, Can trade and cooperation

help? The Journal of Environment & Development, 17(1), pp 3-25

Pollution Control Department, Thailand State of Pollution Report 2013, (Bangkok:

Pollution Control Department, 2015) P.2-9

Zoeteman B. C. J. and Krikke H. R., (2010), Handling WEEE waste flows, on the

effectiveness of producer responsibility in a globalizing world, International

Journal of Advanced Manufacturing Technology, 47, pp 415-436

89

Pollution Control Department, Ministry of Science, Technology and Environment,

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(Bangkok: Pollution Control Department, 2000), P.2

A joint project, Californians Against Waste Foundation, Toxic TVs and Poison PCs:

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Marco Martuzzi and Joel A. Tickner. The precautionary principle: protecting public

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Organization for Economic Co-operation and Development. Environmental Taxation.

A Guide for Policy Makers

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3. THESES

รติกร แสวงสวัสดิ์. “มาตรการทางกฎหมายในการควบคุมขยะอิเล็กทรอนิกสจากโทรศัพทมือถือและ

แบตเตอรี่.” วิทยานิพนธปริญญามหาบัณฑิต, คณะนิติศาสตรมหาวิทยาลัยธรรมศาสตร,

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ภาณุศ อภิบาลเกียรติกุล. “มาตรการทางภาษีเพ่ือสงเสริมวิสาหกิจขนาดกลางและขนาดยอม : ศึกษา

เปรียบเทียบประเทศไทยกับประเทศออสเตรเลีย.” วิทยานิพนธปริญญามหาบัณฑิต, คณะ

นิติศาสตรมหาวิทยาลัยธรรมศาสตร, 2554. (Panu Apibankrietikul. “Tax incentives

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for small and medium enterprises : a comparative study between Thailand and

Australia.” Master’s thesis, Thammasat University, Law, 2011.)

วชิรศาสน ชเลิศเพ็ชร. “มาตรการทางภาษีสําหรับการประกอบธุรกิจเงินรวมลงทุน (venture

capital) ภาคเอกชนในประเทศไทย : ศึกษาเปรียบเทียบกับประเทศออสเตรเลีย.”

วิทยานิพนธปริญญามหาบัณฑิต, คณะนิติศาสตรมหาวิทยาลัยธรรมศาสตร, 2553.

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สุทัศน ทองสถิตย. “การใชมาตรการทางภาษีและกฎหมายในการจัดการปญหาสิ่งแวดลอม : ศึกษา

เฉพาะกรณีแบตเตอรี่และของเสียอันตราย.” วิทยานิพนธปริญญามหาบัณฑิต, คณะ

นิติศาสตรมหาวิทยาลัยธรรมศาสตร, 2549. (Suthat Thongsathit. “Tax and legal

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92

BIOGRAPHY

Name Mr. Tinnapat Sumleeon

Date of Birth March 23, 1988

Educational Attainment

2010: LL.B, Assumption University

Work Experiences Junior Lawyer,

Kanung and Partners Law Office