The Waste Disposal Municipal Solid Waste Charging: How to Handle Solid Waste by Law?
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Introduction
In Hong Kong, the problem of solid waste has been a long-standing issue yet to be effectively addressed. In Peter Anthony Reid & Adam Andrew Gordon Hobson v The Environment Bureau (HCAL 90/2016), two applicants seek leave to apply for judicial review to challenge the handling of waste management in Hong Kong by the relevant responsible persons and authorities. They argued that the Hong Kong government had failed to conduct its public administration properly and honestly in relation to the disposal of waste by landfill. Complaints were made against the handling of waste management in Hong Kong, in particular the failure to implement existing waste management policies and to develop new ones to address current problems and trends. They contended that the government did not achieve a substantial reduction in the disposal of waste as contemplated in its 2005 policy.
Although the application was dismissed because the two applicants failed to properly address the required legal procedures for judicial review, it is uncontroversial that Hong Kong lacks effective legal measures to handle waste disposal.
The “Garbage Levy” in Hong Kong
Against this background, the Hong Kong government has introduced the Waste Disposal (Charging for Municipal Solid Waste) (Amendment) Bill 2018 which was passed on 26th August 2021 with a preparatory period of 18 months as a basic arrangement. The new Ordinance will be “the Waste Disposal (Charging for Municipal Solid Waste) (Amendment) Ordinance 2021” (“the new Ordinance”), the effective date of which is still to be gazetted. With the aim to raise public awareness that waste disposal comes with a cost, the “Garbage Levy” derives from the “polluter-pays” principle. Charges are based on the quantity of waste generated. By requiring those who generate waste to pay the costs of the collection, recycling, and disposal of waste, it is hoped that waste disposal will be reduced and recycling will be encouraged.
Under the new Ordinance, there are two proposed charging modes, namely by designated garbage bags and by weight through gate-fee. For the former, citizens will have to purchase and use a pre-paid designated garbage bags to wrap their waste before disposal. For oversized waste, they will need to purchase a designated label and affix it onto the waste. For the latter, a gate-fee will be charged for waste collected by private waste collectors using waste collection vehicles.
To examine how the development of solid waste management of Hong Kong is placed in the global arena, this article will illustrate three commonly engaged approaches to handle solid waste with reference to the experience of other cities.
1st Approach: Tax Law
The waste charging scheme under the new Ordinance reflects a common approach used by other places i.e. waste tax or waste levy.
As early as in 1995, Seoul has already implemented a quantity-based municipal solid waste charging system. Domestic households and small commercial establishments are required to purchase and use designated garbage bags for waste disposal. In Taipei City, a per-bag-waste charging system was implemented since 2002 to require domestic households and small commercial establishments to purchase and use designated garbage bags for waste disposal.
In the United States, the New York Recycling Incentive Tax was levied on the supplier to tax most heavily those materials which are the most expensive and difficult to eliminate taxing not just by volume but by degree of impact on the environment. The tax was introduced to provide flexibility and responsiveness by allowing rates to change in response to changes in new materials and new technology. It is aimed to promote recycling and minimal packaging. The revenue produced will be further used on collection and handling the disposal of solid waste. The introduction of this recycling tax has reduced the volume of the waste and has encouraged the public to participate in recycling.
In mainland China, the government has implemented the Environmental Protection Tax Law where solid waste is included as one of the taxable pollutants. The enterprises, public institutions and other producers and operators that directly discharge such pollutants will be charged for this environmental pollution tax. Similarly, in the United Kingdom, a Landfill Tax was introduced and tax will be charged based on the weight of the waste deposited.
2nd Approach: Environmental Tort Law
The second approach is the deployment of environmental tort law. Environmental tortfeasors are required to compensate the victims by their wrongdoings in the context producing and mismanaging solid waste.
In Hong Kong, there have been lawsuits in which environmental tort law was engaged. In Lau Oi Kiu v Man Chun Shing & Others (HCA 1930/2012), the Plaintiff was an 85-year-old lady who had exclusive possession and control over the subject lots in Ho Sheung Heung, Sheung Shui, New Territories and was the owner of the properties inside them. She and her late husband had farmed on the subject lots. The 1st Defendant was a licensed estate agent and the manager of a property agency while the 2nd Defendant was the Indigenous Inhabitant Representative of the Village in Sheung Shui District and the Resident Representative of the village. To exploit the development value of the village, the 1st and 2nd Defendants pestered the Plaintiff to leave the subject lots to give way to construction of village houses and/or a passageway for vehicles, which the Plaintiff rejected. As a result, the Defendants and their agents harassed the Plaintiff by dumping soil, debris and waste on the subject lots and destroyed all the plants and properties of the Plaintiff. For example, one day the Plaintiff was shocked to find out that about 9,000 sq ft of her land had been covered by waste. The Defendants were carrying out land filling activities and some soil had covered part of the subject lots. The Defendants who were operating the dump trucks had dumped waste which piled up to about 2m high and buried the Plaintiff’s plants and properties. Consequently, the Plaintiff commenced legal action against the Defendants on three causes of action, namely, trespass, private nuisance and breach of statutory duty under the Town Planning Ordinance and Waste Disposal Ordinance.
In the Judgment, the Court ruled that trespass was found. It is stated that “in law, trespass is ordinarily actionable by a Plaintiff who is in actual possession at the time his possession is infringed”, or at the material time. There was factual evidence of the dumping of waste onto the subject lots.
In this case, although nuisance was established, since the claim in nuisance would not add anything in substance to the claim in trespass, it was ruled as otiose.
By successfully established her claim by trespass, the Plaintiff was awarded with several remedies. First, for normal damages, she was awarded a sum of HK$828,000 for the loss of profits from farming on the subject lots. Secondly, she was awarded aggravated damages in the sum of HK$200,000 given that she was an 85-year-old lady whose effort on farming for decades had been destroyed in such a high-handed manner. Lastly, the Plaintiff was also awarded exemplary damages in the sum of HK$100,000 as the conduct of Defendants were regarded as outrageous.
In another case Chan Ying Wah v Bachy Soletanche Group Limited (HCA 2266/2002), although it is not a case about solid waste disposal, it evidences the application of common law remedies in tort in environmental law case. The gist of the case is that the seawater brought to the Defendant’s land had escaped therefrom and caused damage to the Plaintiff’s crops plated on the land. The Judge ruled that it is reasonably foreseeable to the Defendants that the discharge or escape of seawater from its worksite might likely cause damage to crops or plants grown in nearby land. The escape or discharge of seawater from the worksite was itself tortuous of the Defendants and in breach of the rule in Rylands v Fletcher. In this regard, the Court ruled that negligence, nuisance and breaching of the rule in Rylands v Fletcher were all found, and the Plaintiff was awarded for loss of crops and plants in the sum of HK$291,971.
In the UK law, similar causes of action exist. The victims can bring their claims such as nuisance, negligence or trespass against the tortfeasors. The Court will award remedies including damages, or an injunction against the polluter to rectify the damages they have caused. Similarly, in China, environmental tort liability is stipulated in China’s tort law (which is now a section in the Civil Code) and remedies are provided for the individuals who had suffered from environmental pollution damages, including improper disposal of solid waste.
A recent news in the Philippines may further highlight the importance of the role of the environmental tort law. In June 2021, conservation and environmental law groups in Philippines seek to sue the National Solid Waste Management Commission, which is a government department, for “gross and persistent” negligence in implementing the environmental law.
3rd Approach: Legislation Control on Waste Management
The final approach is the use of environmental law to limit and manage waste generation.
In Hong Kong, there is no comprehensive and consolidated set of environmental law. There are merely pieces of legislation on different kind of pollutions, such as the Air Pollution Ordinance, Water Pollution Ordinance, etc. Under the Waste Disposal Ordinance (Cap 354), section 16A(1) creates a criminal offence for unlawful depositing of waste, while section 18(1) provides that a person commits offence under section 16A is liable to fine and imprisonment. These legislations are only against pollution, but not to provide systematic control of the waste processing.
An overview is that some countries would tackle the waste problem by controlling the production of waste, while some countries would focus on regulating the waste disposal process.
The pioneer of the former approach is the EU. The general direction in the EU is to adopt the principle of production responsibility to privatize management to handle waste. For instance, Germany was the first EU member to impose specific legal obligation to manufacturers to recycle their products after consumption in domestic law. Under the 1991 German Packaging Ordinance, the private industry has the full legal responsibilities to handle their products after consumption. Collective packaging take-back scheme was adopted to manage packaging and packaging waste. The Waste Avoidance, Recovery and Disposal Act and the Closed-Loop Economic Law, being a national law, was also adopted to promote the optimal use of resources and minimize waste originally designed for final disposal.
Under the EU Packaging and Packaging Waste Directive (Directive 94/62/EC), the EU has required its member states to deal with packaging. Directive 94/62/EC was designed to prevent production of packaging and develop packaging reuse or recycle systems to reduce packaging waste, and to establish the return and collection of used packaging systems to promote recycling. Moreover, two legislations, namely, the Waste Electrical and Electronic Equipment Directive and the Restriction of the Use of Certain Hazardous Substances in Electrical and Electronic Equipment Directive, were implemented to reduce electronic waste by posing restrictions on using hazardous substances in electrical products and to promote recycling of the e-wastes.
Similarly, in UK, Producer Responsibility Obligations (Packaging Waste) Regulations 2007 and The Packaging Regulations 2003 were implemented to set up recycling and recovery targets, which provide incentives for minimizing and reusing packaging. The Waste (England and Wales) (Amendment) Regulations 2012 was a statue about separate collection of waste, where waste collection authorities should ensure the proper arrangements for separate collection and safe disposal of waste. The Landfill Directive also imposes strict regulations for dumping waste in landfills and sets targets for minimizing the dumping of municipal biodegradable waste in a landfill.
Turning to Asian cities, to name a few, Taiwan has adopted the Waste Resource Closed-Loop Recycling and the Taiwan Zero Waste Policy to uphold the sustainable waste management principles, the 4R principles (Reduce, Reuse, Recycle and Recover), waste minimization at the source and extend producers responsibilities. For Japan, being one of the most successful countries in Asia in terms of waste reduction and recycling, has adopted the Waste Reduction Law to require citizens and businesses to reduce waste and to require the municipalities (self-governing bodies of cities, towns and villages) to endeavor to promote residents’ voluntary activities to reduce their municipal solid waste in their respective administrative areas. The measures in Japan places its focus on reducing the production of waste.
On the contrary, the United States has adopted a different approach which is akin to that of Hong Kong. The US attempts to regulate the waste disposal process by imposing mandatory measures. For example, the Resource Conservation and Recovery Act of the United States are strict and mandatory legal measures to tackle hazardous waste management disposed within the US jurisdiction. Similar to Hong Kong where legislation on environmental protection are categorized by the types of pollution or environmental issues, US compartmentalized the measures based of the different types of waste. For nonhazardous solid waste, the US bans the dumping of waste in the open and lays down minimum federal criteria for the working of industrial and municipal waste landfills. For e-waste, the United States has adopted the E-waste Law to manage household e-waste disposal, as well as the Electronic Waste Recycling Act to govern recycling. For food waste, the Bill Emerson Good Samaritan Act and Federal Food Donation Act are adopted to encourage food donation and reduce food waste production.
Conclusion
The introduction of the “Garbage Levy” marks a salient legislative effort of tackling the solid waste problem in Hong Kong. The question remains whether Hong Kong has done enough and whether more can be done beyond the new Ordinance. Whilst the voices and stakes of businesses cannot be ignored, it may be desirable for more review to be prepared to examine whether Hong Kong should also control the production process of waste like the EU countries, or to intensively regulate the waste disposal process like the United States does. Hong Kong can also learn from the legislation experience from mainland China, where there is a complete set of Environmental Protection law. Interestingly, mainland China has incorporated the concept of environmental protection into its contract law as the Civil Code has mandated resource conservation and environmental protection during or after the performance of the contract.
By Kate Li, Partner, Raymond Siu & Lawyers
Ki Ki Chui Yuen Tung, Associate, Raymond Siu & Lawyers
