A recent statistics from the Ombudsman’s Office indicates a significant number of complaints related to pollution caused by industrial factories across various regions of the country. These complaints highlight the impact on agriculture activities and local livelihood.
Solving issue of the law enforcement on factory operation that has a significant impact on the public is the duty of the Ombudsman according to the provision of the Constitution of the Kingdom of Thailand B.E. 2560 (2017) in Chapter 5 – Duties of the State, Section 53, which stipulates that the State shall ensure that the law is strictly observed and enforced. The complaint in this case had been caused by a delay and dereliction of duty of the authorities to take action in compliance with laws, rules, or regulations against the polluting factories.
In this case, the problem occurred from a private waste recycling plant in Ratchaburi Province that has been engaged in industrial waste recycling. The operation of this plant has been the subject of complaints to the Ombudsman’s Office since 2014. Despite ongoing issues, the situation remained unresolved until a fire broke out at the plant on 16 June 2022. The smoke from the burning industrial waste spread over several kilometers, causing discomfort and respiratory issues for nearby residents. In addition, agricultural crops in the vicinity were damaged as a result of the fire. The affected individuals have not received any assistance from the relevant authorities and are concerned about the livelihood that is affected by the long-term impact of the incident.
The Ombudsman conducts an own-motion investigation into this matter by virtue of section 22(3) and section 35 of the Organic Act on Ombudsmen, B.E. 2560 (2017).
In this matter, the Ombudsman and staff conducted an on-site investigation to ascertain the facts. They held multiple meetings, totaling more than six, with the relevant departments to discuss issues such as public grievance redress, hazardous waste management, and strict enforcement of regulations.
However, it was found that the relevant departments did not adhere to the laws governing factory operations. Consequently, the pollution caused by the factory has adversely affected the local residents, and appropriate remedial measures have not been taken. Recognizing the necessity for preventive and regulatory measures to address these issues, clear delineation of the responsibilities of the relevant agencies and the establishment of prompt compensation procedures for individuals affected by any resulting damages, the Ombudsman has submitted a report and recommendations regarding the law enforcement on industrial plant operation that has a significant impact on the public to the Council of the Ministry for consideration. The Ombudsman’s recommendations are as follows:
- The efficacy of law enforcement against factory operators causing the pollution:
- The Ministry of Industry and the Department of Industrial Works should review and consider the amendment of the Factory Act, B.E. 2535 (1992) in order to enhance its effectiveness in implementing the law. For example, an order issuance under Section 39 of the Factory Act, B.E. 2535 (1992) results in the factory having to cease operations and exempting it from the enforcement of the Factory Act, this may be more challenging to enforce the law against the factory operators. Therefore, this legal provision should be amended to ensure that the operators remain subject to the law on factory.
- The Royal Thai Police and relevant departments should promptly monitor the proceedings against the operators in accordance with the law.
- Solving the pollution issues and the process of seeking compensation for damages resulting from factory operations
- The Ministry of Industry and the Department of Industrial Works should conduct chemical transfers to mitigate the harm caused by severe public disasters to both the people and the environment.
In the event that the operator fails to carry out the chemical transfers as directed by the pertinent officials, the Ministry of Industry and the Department of Industrial Works have contingency plans to transport chemical substances by requesting the allocation of the Government’s contingency fund for emergency (central fund) for emergency situations to manage industrial waste and chemical pollutants contaminating the environment, with the guidelines for implementation as follows:
The initial phase involves the budget allocation from the Government’s contingency fund for emergency to implement these following 4 projects namely:
- The project to employ contractors to safely remove and dispose obsolete materials and chemical waste, carried out by the Department of Industrial Works.
- The project to restore groundwater resources contaminated with volatile organic compounds in the immediate area, carried out by the Department of Groundwater Resources.
- The project to develop the groundwater sources for agricultural purposes in regions impacted by industrial activities, carried out by the Office of Groundwater Resources, Region 8 (Ratchaburi).
- The project of health surveillance for the people affected by industrial operations in Ratchaburi province, carried out by the Provincial Public Health Office.
The second phase involves the exploration and elimination of industrial waste covertly buried underground within factory premises, which is a pollution source contaminating the environment. The data gathered by the study in the initial phase should be utilized to estimate expense in order to request budget from the Government’s contingency fund. In this case, the Ombudsman has sent a letter to the Prime Minister on 10 March 2023, requesting budget allocation from the Government’s contingency fund for emergency. The purpose of this request is to address the urgent the issue of industrial waste and chemical pollutants contaminating the environment caused by the operation of such private factory. The Ombudsman has considered that the impact of the factory operation and the inaction of its operators in adhering to the official’s order have resulted in the spread of pollution adversely affecting the health of people in the area and the environment and creating impacts for more than 20 years. The Prime Minister has agreed and approved the budget of 56 million baht from the Government’s contingency fund for emergency for the Department of Industrial Works to implement the abovementioned projects.
- The Ministry of Natural Resources and Environment, in conjunction with the Pollution Control Department, should propose an amendment to the Enhancement and Conservation of the National Environmental Quality Act, B.E. 2535 in order to make the filing a damage claim more equitable.
The claims for damages based on the provisions of the Enhancement and Conservation of the National Environmental Quality Act, B.E. 2535 is a civil claim for damages that requires the victim to be the litigant. This may result in the unfortunate situation where impoverished victims are unable to obtain compensation for their losses. Therefore, the Ministry of Natural Resources and Environment, in conjunction with the Pollution Control Department should consider amending the Enhancement and Conservation of the National Environmental Quality Act, B.E. 2535 to enable the relevant government departments or the public prosecutors to prosecute the polluter or the source of pollution for the damage to the affected people.
- In the light of remediation and compensation for damages caused by pollution
- The Ministry of Industry should study practical methods for effective and timely compensation for the damage caused by the polluting factory. In the event that there is no any adequate measure to assist people affected by factory pollution in receiving timely and proper remedy due to the current law. The claim of damages must be based on the civil litigation process. In addition, the environmental-related legal funds, which aims to focus only on environmental management, cannot be spent for damages to life, health, or property of injured party or to the State. This may cause the injured party not to receive or to receive delayed remedy. In such cases, the law should be amended or revised to enhance the effectiveness of remedies for damages caused by factory pollution. The following issues should be included in the amended law:
- The amended law must establish “a compensation fund” to address damages resulting from pollution caused by factory operations.
- The amended law must require the applicant for the factory license shall obtain insurance to cover any potential damage caused by factory pollution to life, health, or property of injured party or to the State.
- The amended law must require the applicant for the factory license shall provide collateral for the potential damage caused by factory pollution to life, health, or property of injured party or to the State.
However, in order to ascertain the most suitable solutions for the current conditions of Thai society, a study must be conducted by specialists with requisite knowledge and expertise to establish the appropriate criteria. The Ministry of Industry, which oversees factory operations shall outsource the researchers to conduct a comprehensive study to determine the most appropriate and effective approach to compensate for damages incurred.
- The Budget Bureau should provide fund for the research outsourcing.
With regard to the recommendation to conduct a study on the establishment a compensation fund for damages caused by factory pollution and the possibility of imposing legal conditions on insurance or collateral provided by the factory, it is necessary to allocate budget to support the research project that should be conducted by a qualifies expert who can provide accurate and reliable information to ensure proper implementation. Therefore, the Budget Bureau is requested to provide necessary financial support for outsourcing an expert to undertake this research.
Later, the Director-General of the Department of Industrial Works has been in the site in Ratchaburi province to monitor the issue resolution in progress and oversee the implementation of outsourcing waste and sewage treatment services project. The waste treatment aims to manage over 12,000 tons of waste by 29 March 2024 and a lawsuit will be filed to claim all costs from the factory causing the damages. This approach will be introduced as a model for effective waste management practices in other regions.
