Regulatory Instruments Of The Waste Law Accounting Essay

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Chapter 2

The waste regulation is considered to be the complex area of law. [1] It contains a number of regulating challenges compared to other areas of pollution control. The obvious challenge is that the definition remains ambiguous of what is controlled. [2] Thus the environmental damage may arise from waste which is misused or discarded. The best way of controlling the pollution, waste should be regulated through the whole cycle namely from the production, the treatment and to the final disposing stage. For example, some discarded electrical and electronic equipments which functions remain perfectly use, should be classified as waste because they can cost a value compared to the past that it was just disposed. This complex waste cycle has brought the difficulties either the authorities or businesses.

Another challenge is about the problem of trying to mix different types of legal measure in order to minimize and reuse waste. [3] Obviously traditional form of regulation or in other word called as command and control systems are useful when addressing the control of environmental risks form disposal of waste, but it may not capable with the issue of reuse or recycling. This is because command and control systems have focused on the regulation of the activity that the pollution has already been polluted such as the treatment and disposing waste license which seem not to be encouraged the reduction of waste production by reuse, recycling and recovery.

To reduce the rate of waste production, the traditional waste regulation is to be considered as 'end of pipe' control of waste management is inadequate. [4] Therefore alternative regulatory instruments such as market based instruments such as tax and producer responsibility may be introduced.

Before moving to the study of particular waste stream namely E-waste in the coming chapter, it is important to understand what regulatory control is behind the waste law and also its general functions. This chapter will start with the overview of the UK waste law and Thai waste law respectively. Then it will move to examine the main regulatory of waste law namely, command and control system, economic instruments and finally produce responsibility.

The overview of the waste law in UK and Thailand

Before the taking to the overview of UK waste regulation, it should talk briefly to the European waste law and policy which has an influence on the UK waste law.

First of all the EU waste policy is based on the idea of waste hierarchy. [5] It means that disposing waste to the landfill should be avoided and waste should be encouraged by reuse, recycling and recovery as much as possible. In addition nowadays waste is recognised as a valuable resource, so those reuse recycling and recovery approach will play an important role to regulate in particular to the special waste stream such as waste packing, end-of life vehicle and waste electrical and electronic equipment.

Furthermore the EU law related to waste management is formed around Directives. It lays down the principle such as impose an obligation to Member States setting the licensing system that a permit is required by anybody who wish to carry out the disposal or recovery operation on waste. [6] This is to ensure that the management of waste does not cause harm to the human health and the environment. The broad framework of EU waste management law can be found on waste and repealing certain Directives (2008/98/EC) and on hazardous waste (91/698/EC). Not only the Waste Framework Directive which aims to protect the environment and human health, there is a group of waste Directive with the management the particular type of waste such as packaging, electrical equipment and vehicle.

In the past the UK law related to waste is mainly focused on the environmental risk from waste disposing. [7] Since the UK waste law is developed by the EU Waste Framework Directive, it encourages the waste minimization by prevent, recycling and reuse of waste. [8] 

In terms of the control of waste management such as treating, storage or disposing operation as mentioned above, Member States are required to establish a permit.

In the UK, waste legislation, obviously it is regulated in the form of licensing. The waste management activities such as the deposit, keeping, treating or disposing controlled waste are introduced though the waste management licensing system founded in the part two of EPA 1990. [9] The Environment Agency takes a responsibility of regulatory control over waste management through permitting system. In addition there are a number of laws related to waste management such as Waste Management Licensing Regulation 1994 and Environmental Permitting (England and Wales) Regulations 2007.

The overview of Thai waste law

Generally the major environment issues such as air, water, noise or waste are covered by The Enhancement and Conservation of National Environmental Quality Act B.E. 2535 ( NEQA 1992). This law is a master law which provides the legal framework for natural resource management and pollution control.

Regarding the area of waste, the Minister has a power to publish notification in the Government Gazette for setting the standards of the pollution control such as wastewater discharge and discharge of other waste in order to meet the environmental quality standards set under this Act. [10] 

The waste management operation in Thailand is regulated by a complex web of statutes and regulations including the Factory Act, the Public Health Act and the Hazardous substance Act. The Activity such as waste productions, waste transporters, waste storage, recycling and treatment manufacturers and waste disposal companies is applied to these laws.

According to the complex web statutory, it has created a number of problems. Firstly in terms of legal aspect, many laws appear to be outdated to tackle with the source of pollution that keeps changing. Secondly it creates the problem of setting different pollution standard such as between NEQA and Factory Act. Lastly there is an institutional problem with overlapping power of governmental bodies such as local authority.

The regulatory instruments of controlling and prevent waste

Environment regulation can be an important driving force to influence the behaviour of individual and companies whose actions have a negative impact on the environment. In addition, it provides incentives for them to change their behaviour into more environmentally friendly way. Furthermore the regulations have to keep updated because the society and economic keep changing which may cause the damage to the environment.

Generally the environmental regulatory instruments can be seen in many forms such as command and control system, economic instruments and information-based system. Different method has its own way to combat the pollution, choosing the right method is a matter. [11] Thus to give suggestion to Thailand firstly it is important to know the fundamental idea of each method. However this section will not provide the comprehensive framework of each method. Instead, it will look at the big picture of each method which could be a good instrument choice for Thai waste regulation.

To begin with, the terms of waste regulation can be considered into three instruments namely; command and control system, economic instruments and lastly the idea of producer responsibility for specific waste stream like E-waste.

The command and control system: licensing

Command and control regulation can be indicated as 'required or prohibited conduct for each individual regulated actor with the aim of limiting, directly or indirectly, the level of pollution, stress, or resource consumption by each'. [12] In addition Abbot claimed that this system is supported by imposing the sanction control. [13] 

A licence as a part of command and control system can be defined as an instrument created under government authority that requires all business or individuals with specified characteristic to gain prior approval. [14] A licence set conditions on what activity can do and cannot do. For example, it set the limitations of specific type of an activity in order to protect the environment. [15] In addition it can set a monitoring system to detect a risk to the environment. [16] Moreover it can check the staffs' performance by setting the requirements on the management of the operation. [17] 

A classic method like licensing system has brought the influence of changing individual and business behaviour but sometime it also creates a number of obstacles. Correcting the information failure can be seen as the first advantages. [18] This is because before granting the licence, it is necessary that business have to provide adequate information to the authorities that they can make a decision to the application. [19] The requirements will facilitate to the authority to set the right and proper standard to minimise and prevent harm to the environment. To this point, Farmer claims that permitting system has increased the opportunities for public involvement and participation in environmental protection. [20] In addition licence as a tool of regulatory can ensure that businesses or individuals will run their operation when they can meet the criteria or standard [21] . For example, the applicants who apply for a waste management licence must be considered to be fit and proper person. [22] It means that the licence applicants must not have been convict to the relevance offence, their competence meet the technical provision and must provide an adequate finance to operate their work under the licence. [23] Another importance is a licence as a regulatory technique has showed the competence that it can internalise pollution externalities to guarantee that polluter pays for the environmental damage.

However, permitting system has created some weaknessesToey2010-07-11T03:00:00

Compliance with licence

Licence fees

Fines for non-compliance

Liability for clean-up and compensation

. Firstly it tends to be an expensive instrument to administer and enforce. Abbot claims that it can be expensive in short term no matter what the long term benefits. [24] 

In addition comparing with other instrument, licences seem to be inflexible, thus it is ineffective to respond when there is some unexpected change either the economic or environment situation. This is a criticism of command and control systemToey2010-07-11T03:01:00

Complex

Bureaucratic

Inefficient

Economic efficiency, labour, expertise

Ineffective

Brake on innovation

Secures minimum standards only

. Legal complexity has arisen when licence is refined and amended to add new substances or facilities which Abbot argues that they do not come within the original regulatory set. [25] Moreover licensing system is no longer suitable to the situation where the environment is effected by the non-point source pollution like a problem effected to water quality.

Incidentally, the use of a range of regulatory instrument has played an important part to waste policy and regulation. For example Lee cited that the need of using an appropriate mix regulatory such as economic instruments and voluntary agreement appears to be a better way to tackle with problem arising from waste.

A part from permitting system, the alternative regulatory instrument will be examined in next section.

The economic instruments.

The economic instruments (EIs) can be seen as a tool which has the development of environment regulatory beyond the traditional control in order to implement and enforce law and policy affecting to the environment. The economic instruments have been seen to be more flexible, efficient and cost effectiveness into pollution control measures. [26] 

These instruments aim to change the environmental behaviour by using financial incentives. Accordingly they have been argued that they can deal with the deficiency of the traditional 'command and control' regulation. [27] 

To this point, Bernstein indicates that in theory EIs have the abilities to control pollution in relation to market mechanisms and consequently it can reduce the administrative work from governmentToey2010-07-19T12:44:00

Deregulation ? . [28] However, the regulation, enforcement and other form of government participation remain important in practice. [29] 

There are many reasons why using EIs appear to be more effective than using the old tradition of regulatory instrument. Firstly the command and control system creates a complex and detailed standard, while EIs that can work on the basis of broad target goals, with the reduction of information and administrative cost for both regulator and firm. [30] Secondly, EIs as a flexible tool create the incentives on firms to develop new technology which hope to reduce the externalities. [31] In addition, negative EIs such as charge create funds which can be used to compensate the victims from the externalities, whereas the traditional system is hardly seen that it offers the compensation for the victims. [32] 

The form of economic instruments can be commonly divided into ten types as follow; taxation, tradable permits, deposit and return or refund systems, cost recovery and incentive charges, input charges, legal liability, subsidies, loans and grants. [33] 

According to the area of waste regulation in the UK, Landfill Tax represents notably as a part of economic instruments. It aims to 'encourage waste producers to produce less waste, recover more value from waste, such as by recycling or composting and use more environmentally friendly methods of waste disposal'. [34] 

This is because wastes which are being sent to landfill have generated a huge amount of methane [35] resulted in an environmental matter like climate change. Furthermore it leads to the contaminated land problem like ground water pollution, loss of local amenity and also the health problem.

Thus, Landfill Tax was first introduced under the Finance Act 1996. It applies to all wastes which are disposed to the landfill, made at landfill site and made on or after 1 October 1996 and excluding some specific exempt wastes. [36] 

At the beginning the Landfill Tax was introduced, it had raised the revenue for the government and being use to reduce employers' National Insurance contributions. [37] 

However, in the early stage there was a criticism of misusing the revenue to the environmental purposes. Later the Landfill Tax Credit Scheme was introduced to solve this problem that the landfill operators can claim a credit against any payment of tax for any contribution donated to approved environmental body to pay for a project that is approve under the Landfill Tax regulation such as the creation of public amenity space or wildlife habitat and maintaining the historic places. [38] 

Notwithstanding, the UK landfill Tax has created the waste management more practical by imposing financial burdens to the waste management operation.

On the contrary of the effectiveness, there remain some undesirable matters. Because of setting the low rate of tax at the beginning of the introduction, the amount of waste was not deceased and increased problem such as fly-tipping. [39] In addition the exemption of inert waste recovery from the permitting system appeared to be a controversial issue. [40] 

The Producer responsibility

At present, the concerns of how to prevent the environmental effects from some waste disposal operation such as landfill site or waste incineration or to reduce the cost of waste management have been increasing throughout the world.

Furthermore, over and inefficient using of resources has brought the action to promote sustainable development.

In this part, the concept of the producer responsibility will be examined in general image.Toey2010-07-18T20:02:00

ไม่แน่ใจกับศัพà¸-์นี้ Considering to the potential of addressing to the rapid growth of E-waste will be next examined into the coming chapters.

The emergence of the principle of extended producer responsibility (EPR)

Extended producer responsibility was firstly defined by Lindqvist following as: "Extended Producer Responsibility is an environmental protection strategy to reach an environmental objective of a decreased total environmental impact from a product by making the manufacturer of the product responsible for entire life cycle of the product and especially for the take-back, recycling, and final disposal of the product. The extended producer responsibility is implemented through administrative, economic and informative instruments. The composition of these instruments determines the precise form of the extended producer responsibility" [41] 

The responsibilities to waste management were normally put to the consumer or the authorities, however since this idea was introduced, the responsibilities has to be shifted to the producer of the products. [42] Lindqvist argues that this is because the principle is surly involved with the ways we manage our waste treatment and recycle activities. [43] He further explains that producers have 'the unique knowledge and opportunity' to change the quality and characteristic of their product, this is the reason why they should bear the special responsibilities. [44] 

In terms of policy context, as defined by OECD, the concept of extended producer responsibility is referred as 'an environmental policy approach which provides the producers of goods have to be responsible to through the post-consumer of product's life-cycle'. [45] In other word, the principle of producer responsibility put the incentives on the producers pursuing to recycling, reuse and finally to reduce the environmental impact of products. In addition the idea of polluter pays principle has also illustrated that the cost of waste disposal should be borne by polluter of waste, in particular to waste stream legislation which producers of goods have to bear certain costs of waste management. [46] This is because the EPR want to encourage the producers to be responsible about the impact of the products by concerning from the upstream impacts of selecting a material for the products, following by the impacts from the manufacturing process and finally the downstream impacts of using and disposing the products. Furthermore it can be indicated that this principle are clearly underlined by the environmental preventative principle in order to prevent environmental harm which may cause from the beginning of the manufacturing process.

Implementing the concept of extended producer responsibility.

Implementation at the EU level

The effectiveness of applying this principle can be seen from the implementation of various waste stream directives in the EU Member States such as packaging, end of life vehicles and electrical and electronic equipment. [47] 

Packaging Waste Directive was the first regulation introducing the concept of EPR.

This Directive aims to promote prevention, reuse and recycling of packaging, setting the collection systems for packaging waste and establishing binding recovery and recycling targets for the different packaging material. [48] 

In the early stage, this directive had a limited success because there were some various problems such late transposing the Directive and setting low rate recovery. [49] 

Lee argues that it was quite unclear about this Directive in terms of attaching the idea of producer responsibility, however most of Member States chose to obligate the recycling and recovery target by means of this concept.

The next directive which adopting the producer responsibility is the End of lives Vehicles Directive. [50] The principle of producer responsibility that worked behind this Directive try to reduce the amount of waste must be recycled, for example, Member States are required to play an important role by imposing the necessary measures in order to achieve recycling and recovery targets. [51] Thus, the economic operators [52] must prepare systems for the collection, treatment and recovery of the end of live vehicles and to ensure that there is an adequate availability of collection facilities. [53] The ends users do not require to bear those operation costs but the cost will be put through the supply chains that have the ability to design the products which will be facilitated to the recycling and recovery process. As similar to the key point indicated by the EPR that producer must be responsible from the upstream process- designing and choosing the right materials, until the downstream process- taking back and taking to the treatment operation, Kramer concludes that this Directive is truly underpinned by the producer responsibility. [54] 

Yet turning in to consider another important waste stream which is underpinned by the principle of producer responsibility is the Waste Electrical and Electronic Equipment (WEEE). [55] 

The WEEE Directive set the objective in order to deal with a complex waste stream that the products including their materials and components contain with hazardous substances. The producer responsibility plays a crucial role by creating the relationship starting from the production stage to the waste stage (when product turned into waste) and also involves with various such as producers, distributor, consumers and operators of waste treatment.

The relationship between WEEE and producer responsibility can be clearly seen in the recital (12) of the WEEE directive that the aim of principle has been encouraged through the design and production of the products which will be considered and facilitated their repair, possible upgrading, reuse, disassembly and recycling. [56] In addition recital (20) also indicated that 'in order to give minimum effect to the concept of producer responsibility, each producer should be responsible for his own financing the management of the waste from his own products. [57] These two recitals have shown the concrete responsibility to the producers. [58] 

Implementation in developing country.

At present, the concept of producer responsibility is hardly accepted in developing countries either in the policy or law context. [59] Kojima et al found that there are two obstacles of pursuing this concept to the government's policies.

First is the difficulty to identify who are producers. [60] One requirement to implement this concept is that a producer or importer must be identified. This is because if the producers (businesses) are bankrupt, it would be no one bears the responsibility. [61] Furthermore repair businesses are considered to be a problem as a result of low labour cost and the market shared in the secondhand market costs a large amount of money. Thus it is difficult to judge that who will be responsible for the product either the manufacturer or repair shop. Again imitation product can be seen as a major problem in many developing countries such as Thailand and China. [62] The operation of this product is illegal business. Therefore, without doubt, the concept of producer responsibility cannot be effective implementation.

Second major problem is with regard to the subsidies for collector and recycle. [63] The recycling fund system is used in developing countries. Its function is to support the formal recycle facility within country. This is because the formal recycling operators have to be complied with the environmental standard, pollution control regulation and also the measure of labour protection. Accordingly it increase the number of informal recycle operators who ignore such a rule and give the high price of discarded items which the formal operators cannot afford.

Conclusion

Traditionally the regulatory of controlling waste can be seen in a form of command and control system and its merit remains important to the waste management system.

Furthermore the alternative regulatory instruments play an important role to facilitate this complex system. The comprehension of these regulatory instruments will lead us to consider the experience of the UK law in order to cope with the waste stream problems like 'E-Waste'.

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