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SOIL AND GROUNDWATER POLLUTION REMEDIATION LAW
After its passage through the Legislative Yuan, the Soil and Groundwater Pollution Remedia-tion Law (Law) was promulgated by the Presi-dent on 2 February 2000. The Law comprises 51 articles in eight chapters. Its principles are as follows:
Soil and groundwater pollution problems mostly result from the discharge or disposal of wastewater, waste gases, solid waste or toxic chemical substances. These pollution sources are already regulated by relevant legislation. To avoid duplication in enforcement, the law mainly concentrates on the monitoring, measurement, investigation and remediation of soil and groundwater pollution.
The Law calls for relevant information to be made public by official announcements, and also expands opportunities for public partici-pation in the planning of soil clean-up opera-tions, in order to increase consensus between the government and the public on how to deal with problems.
Generally speaking, the basis for remediation of a site is the environmental regulations or standards relevant to its existing designated use. An exception to this is where other land development regulations may apply to the use of the site. Taking into consideration both the existing and possible future use of the site, the authorities may define remediation standards on a case-by-case basis in accordance with the provisions of other legislation and the facts of the individual case.
Because soil pollution involves the accumu-lation of contaminants over long period of time, it may be difficult to clearly assign re-sponsibility for the pollution. Furthermore, soil remediation technologies are complex and expensive. If environmental protection agen-cies are required to carry out soil remediation for those responsible for soil pollution, they will need substantial financial resources in order to tackle incidents effectively. There-fore the Law explicitly provides for the col-lection of a soil pollution remediation levy and the establishment of a remediation fund, to create a fundraising mechanism which will assure financial resources for pollution reme-diation.
The Law extends liability for pollution beyond the polluter to include, where responsibility can be ascribed to them, related parties such as users, managers or owners of the land con-cerned. This is intended to encourage such parties to fulfill their duty of care as custodians of the land. However, in the interests of fair-ness, ultimate liability still lies with the pol-luter, so that land users and owners who did not themselves commit acts leading to pollu-tion may seek reimbursement from the pol-luter.
The Law expressly provides that the principle on which pollution remediation is based is that of returning the land to its original use. But where polluted land is the subject of an inte-grated zoning development plan under other legislation, there is an option to determine remediation requirements on a case-by-case basis.The Law also allows a remediation plan to be submitted together with an application for land development. However, such a land development plan may not be approved until controls over the polluted site are lifted.
Soil pollution frequently causes groundwater pollution. Hence the Law addresses ground-water and soil remediation together.
The main content of the Law is as follows:
Chapter 1: General provisions
It sets out the purpose of the legislation, defines terminology, identifies the agencies responsible for administering the Law, and allows functions to be delegated to specialist agencies.
Chapter 2: Pollution control measures
Local competent authorities at the municipal, county and city level are required to regularly test soil and groundwater quality within their jurisdiction. If they discover pollution above intervention levels, they are required to take the necessary action, determine responsibility for the pollution and report the incident to the central competent authority (i.e. the Environmental Protection Administration, EPA).
A member of the public who has grounds for believing that soil or groundwater may be pol-luted may report this to the local competent au-thority. A government agency, land user, land manager or landowner having grounds for such belief must inform the competent authority. On receiving such a report, the local competent au-thority is required to investigate and take such action as is necessary.
Upon transfer of the land used by any of the EPA-designated industries, the transferor must provide soil pollution inspection information. Failure to provide such information will subject the transferor to the same liability as the owner of the land if the land is announced to be a pollution control site or pollution remediation site.
For such industries designated by the EPA, their establishment, suspension of operations or ter-mination may only go ahead after soil pollution test data for the land used by them have been submitted to the competent authority.
Chapter 3: Investigation and assessment measures
The competent authority must investigate any site where soil or groundwater pollution is sus-pected. If the illegal discharge, escape, tipping or dumping of pollutants is discovered, the au-thority must control the pollution source and investigate the extent of environmental pollution. If the source of soil or groundwater pollution can be clearly identified, and the concentration of pollutants exceeds defined intervention levels, the authority must declare the site a soil and groundwater pollution control site (control site). If the control site is preliminarily assessed as having a likelihood to endanger public health and living environment, the competent authority should declare it a soil and groundwater pollu-tion remediation site (remediation site).
Where a control site it declared a remediation site, the local competent authority may require the polluter to propose a pollution control plan, to be implemented after approval. After such a plan has been implemented, and if the concen-tration of pollutants has fallen below intervention levels, an application may be made for controls over the site to be lifted and for this decision to be publicly announced.
In respect of a remediation site, the local com-petent authority must investigate the extent of soil and groundwater pollution and assess its environmental impact. Prior to investigation and assessment by the competent authority, the pol-luter or related parties of a remediation site may propose a soil and groundwater investigation and assessment plan, to be implemented after ap-proval.
The local competent authority must report the results of such investigation and assessment to the EPA and request assignment of a priority level to the case.
Chapter 4: Control measures
The competent authority must adopt emergency measures in accordance with the actual situation at a control site or remediation site. Such measures may include ordering the polluter to stop operation or to stop work, warning residents to stop using groundwater, destroying agricul-tural or fisheries products, restricting the culti-vation of specific crops on farmland, evacuating residents or restricting human activities.
In accordance with the extent of pollution at a control or remediation site, the competent au-thority must define and announce a pollution control zone. Land use and human activity within the control zone will be controlled. Where such controls cause loss to land users, managers or owners, they may seek compensa-tion from the polluter.
The competent authority may notify the local land registration authorities to register a bar on the sale or other disposal of land belonging to the polluter or related parties of a remediation site.
Chapter 5: Remediation and rehabilitation measures
The polluter of a remediation site is required to draw up a soil and groundwater remediation plan in accordance with the results of the investiga-tion and assessment conducted by the competent authority, to be implemented after approval by the authority. Related parties of polluted land may also draw up a remediation plan prior to remediation by the competent authority.
When remediation measures under a pollution control plan or remediation plan have been completed, a remediation completion report must be submitted to the competent authority for ap-proval. After such approval, the competent au-thority is required to (1) announce the lifting of controls over the site, (2) announce the lifting or adjustment of the boundaries of the pollution control zone, and (3) instruct the local land reg-istration authorities to strike out the record of the bar on disposal of the land.
Where remediation has been completed, the au-thority responsible for the industry for which the land is used shall process matters concerning the rehabilitation/reinstatement of the land.
Chapter 6: Finance and responsibility
The competent authority may collect a soil and groundwater remediation levy from producers and importers of designated chemical substances according to the quantities produced or imported, and may establish a soil and groundwater reme-diation fund.
The fund may be used for the following purposes: (1) expenditure by the competent authority under the Law; (2) necessary litigation-related expen-diture of the fund; (3) personnel and administra-tive expenditures of the fund; and (4) other EPA-approved expenditure related to soil and groundwater remediation.
Sources of income for the fund are: (1) the remediation levy; (2) payments from polluters or related parties of polluted land under the Law; (3) payments from land developers under the Law; (4) interest accrued on the fund; (5) allocations from the EPA budget; (6) allocations from funds related to environmental protection; (7) alloca-tions from fines and administrative fines im-posed for environmental pollution; and (8) other income.
If gross negligence by related parties of polluted land results in its being declared a remediation site, such parties shall be jointly and severally liable with the polluter for the costs incurred by the competent authorities under the Law. However, such related parties may seek recovery of such costs from the polluter.
Chapter 7: Penalties
The Law imposes both criminal and administra-tive penalties. The maximum criminal penalties are life imprisonment and fines up to NT$5 mil-lion. Fines may be imposed on the agents, em-ployees or other servants of juristic or natural persons, and the legal representatives of juristic persons, who contravene the Law in the execu-tion of their duties, and also on such juristic or natural persons themselves. When determining the level of a fine, the court should take into account the benefit gained from the offence. If such benefit exceeds the maximum statutory fine, the court may increase the fine by up to twice the value of the benefit gained.
Administrative penalties for violations include fines up to NT$5 million and the setting of a time limit to end the violation. If such a time limit is exceeded, successive fines may be imposed on a daily basis, and in severe cases closure of the enterprise may be ordered.
Much attention has been focused on the issue of the retroactive applicability of the Law. With respect to soil and groundwater pollution already in existence when the legislation came into force, the Law provides that polluters have a duty to carry out remediation and rehabilitation, and may be subject to administrative fines if they fail in this duty.
Chapter 8: Supplementary provisions
Land owned by the polluter or related parties within the pollution control zone of a remedia-tion site may not be rezoned or be used for any purposes in violation of the restrictions imposed on the pollution control zone.
If a land development plan involves polluted land within a remediation site, the plan may be presented at the same time as a remediation plan. Such a land development plan may only be im-plemented after controls over the remediation site are lifted. Before controls can be lifted and the land development plan implemented, the land developer must make a payment into the soil remediation fund, calculated as follows: 30% of a sum equivalent to 1.4 times the current value of the original area of polluted land within the remediation site, based on the land's officially announced current-year value following the proposed change of use.
Where third parties suffer loss or injury as a re-sult of soil or groundwater pollution, and there was gross negligence on the part of related par-ties of the polluted land, the related parties should be jointly and severally liable with the polluter to compensate such loss or injury. However, such related parties have the right to seek reimbursement from the polluter.