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Upcoming Amendment to the Industrial Waste Management Regulation (Thailand)

NO&T Thailand Legal Update

*Please note that this newsletter is for informational purposes only and does not constitute legal advice. In addition, it is based on information as of its date of publication and does not reflect information after such date. In particular, please also note that preliminary reports in this newsletter may differ from current interpretations and practice depending on the nature of the report.

Background

In the operation of a factory business, scrap or industrial waste from the production process is inevitable. Some industrial waste may be recycled or sold to merchants, while certain industrial waste may require proper disposal, as it may lead to environmental pollution or be harmful to people and property. To control the disposal and management of industrial waste, the Department of Industrial Works, Ministry of Industry (“MOI”) has issued regulations applicable to all parties involved from upstream to downstream, including waste generators, waste transporters, and waste processors.

On May 31, 2023, the Notification of the Ministry of Industry Re: Management of Sewage or Unused Materials of 2023, dated March 16, 2023 (as recently amended by the Notification (No.2) dated August 8, 2023) (the “New Notification”), was published in the Royal Thai Government Gazette as a new main regulation pertaining to industrial waste management. The New Notification was issued under the Factory Act of 1992 and completely replaces its predecessor, the Notification of the Ministry of Industry Re: Disposal of Sewage or Unused Materials of 2005 (as amended) (the “Existing Notification”). The New Notification will take effect from November 1, 2023.

The key considerations in respect of the New Notification which may affect the waste management of every factory, as a waste generator, are as follows:

1. Extension of scope of liability of factory operators

This matter is the feature amendment to the New Notification.

In principle, the factory operator, as a waste generator, is liable for its waste, including any loss, accidents, and illegal dumping. Under the Existing Notification, the factory operator can be released from this liability once its waste processor agrees to accept and take possession of the waste. However, after the New Notification becomes effective, the liability of the factory operator will be extended until the waste processor, whether or not they are a waste treatment factory, successfully manages/disposes of the waste in accordance with the method approved by the competent authority. Under the New Notification, a waste processor which is a waste treatment factory, is required to manage/dispose of the waste within 30, 60, or 180 days, depending on the type of waste.

It should be noted that, for the purpose of tracking the status of waste management by the waste processor, MOI is planning to issue a sub-regulation to the New Notification to request a waste processor which is a waste treatment factory to provide the factory operator with a ‘document illustrating the waste management’, upon completion of waste management/disposal. The factory operator will then be required to inform the MOI, through the electronic system, of completion of such waste management/disposal. In the event that the waste processor is not a waste treatment factory, the factory operator must inform the MOI on behalf of the waste processor. Presently, MOI is preparing a sub-regulation to set out the criteria, procedure and timeline for preparation and submission of the document illustrating the waste management by waste generator, waste transporter and waste processor.

This sub-regulation is expected to be announced soon, with a proposed effective date of November 1, 2023.

2. Changes to definitions of subject wastes

The New Notification revises the definition of the subject waste to clarify it, as follows:

  The Existing Notification The New Notification
Subject Waste Sewage and Unused Materials” means unusable materials, or all types of waste generated from industrial activity, including waste from raw materials, waste generated from production processes, products that have deteriorated in quality, and effluent having hazardous constituents or hazardous characteristics.
  • Sewage” means excrement and urine produced within the factory of the waste generator, including animal feces or other foulness within the factory of the waste generator as prescribed in Annex 1 of the New Notification.
  • Unused Materials” means materials or other things which are no longer utilized by the factory or those which no longer serve their original purpose, are lacking in quality, or have never been used, which are hazardous or non-hazardous waste, whether they have value, potential for distribution or sale as goods, or are by-products, as prescribed in Annex 1 of the New Notification; however, it shall not include pestilent garbage in accordance with public health laws and radioactive waste in accordance with nuclear energy for peace laws.
  • (In this newsletter, “Sewage” and “Unused Materials” are collectively referred to as “Waste”)
Waste which is exempted from this waste management measure – although it may be subject to other laws
  • (a)  Non-hazardous sewage or unused materials originating from offices, residences, and canteens within the factory premises;
  • (b)  Sewage or unused materials regulated by specific laws as follows:
  • Radioactive waste
  • Garbage under the law on public health; and
  • (c)  Wastewater destined for off-site treatment via pipe.
  • (a)  Sewage which is excrement and urine produced within the factory premises;
  • (b)  Non-hazardous unused materials originating from offices, residences, and canteens within factory premises, including those generated from consumption activities within the factory premises;
  • (c)  Untreated wastewater resulting from factory operations that is conveyed through pipelines for treatment at a wastewater treatment system outside the factory premises; and
  • (d)  Pressurized gas containers that are refillable or reusable.

In conclusion, except for pestilent garbage pursuant to public health laws, radioactive waste pursuant to nuclear energy for peace laws and items (a) to (d) above, all other unused items in the factory are potentially classified as Waste under the enforcement of the New Notification and are subject to the MOI’s waste disposal measures, even if such items retain monetary value or can be repurposed for other applications, such as filling the land or being raw materials for producing bricks.

3. Revision to certain obligations of factory operators

After the enforcement of the New Notification, certain obligations of factory operators concerning their Waste are to be revised, including but not limited to:

  • (a) In the event the factory operator manages the Waste within the factory premises e.g. to make fertilizer, to burn it or to use it as fuel for a boiler, the factory operator is no longer required to obtain permission from MOI. Instead, they need to inform MOI in the annual report required by Clause 13 of the New Notification. MOI is currently preparing a sub-regulation to set out a criterion for controlling this self-waste-management of the factory operator;
  • (b) Under the Existing Notification, the factory operator cannot retain the Waste at their premises for more than 90 days. If they need to extend the Waste retention period to more than 90 days, they are required to apply for approval. However, this is no longer a requirement under the New Notification;
  • (c) Under the Existing Notification, the factory operator must submit an annual report in relation to management of the Waste no later than December 30th of the subsequent year. Clause 13 of the New Notification accelerates this due date to no later than April 30th of the said subsequent year;
  • (d) For Waste which is stored in a container, the factory operator must, as a newly introduced obligation pursuant to Clause 7(2) of the New Notification, affix a label on the container, containing the particulars of the Waste generator’s name, Waste code, packaging date, and container closure date; and
  • (e) The factory operator must prepare a diagram of the layout in relation to the Waste storage and keep it up to date, ready for inspection by the officer, pursuant to Clause 7(4) of the New Notification. This might not be an entirely new document, since the Existing Notification requires the factory operator to submit a diagram of the Waste storage layout to MOI together with the annual report. However, the New Notification additionally requires the factory operator to keep the diagram up to date and retain it at the premises at all times for the purpose of inspection by the officer.

Conclusion

As Waste management is an integral part of a factory’s day-to-day operation, it is essential for the factory operator to keep updated to ensure compliance with the applicable law. It should be noted that, apart from the New Notification, MOI is in the process of drafting 6 more sub-regulations to provide further clarity on the provisions in the New Notification.

This newsletter is given as general information for reference purposes only and therefore does not constitute our firm’s legal advice. Any opinion stated in this newsletter is a personal view of the author(s) and not our firm’s official view. For any specific matter or legal issue, please do not rely on this newsletter but make sure to consult a legal adviser. We would be delighted to answer your questions, if any.

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