2018.09.11 ZHU, He (George)、Carey Ni、Zhengming Wang
In recent years, China has accelerated the development of environmental protection legislation and at the same time strengthened enforcement of relevant laws. This follows on from a number of soil and groundwater pollution incidents, including a “poisonous land” case involving a foreign language school in Jiangsu, and a farmland sewage and groundwater contamination case involving a chemical company in Hebei, which have drawn attention to the need to optimize and strengthen legislation and law enforcement practices for soil protection and pollution prevention. It is in this context that the Soil Pollution Prevention Law has recently been adopted.
China has a commitment to sustainable development strategies during the drive to optimize the country’s economic growth. While there has been considerable progress towards environmental protection, there is still much cause for concern. For this reason, in 2005, the State Council promulgated the Decisions on Implementing the Scientific Outlook on Development and Strengthening Environmental Protection (“Environment Decisions”). The Environment Decisions led to the development of various subsequent environmental protection policies, including some that addressed soil pollution prevention. Specifically, in order to further strengthen soil pollution control, in May 2016, the State Council issued the Action Plan on the Prevention and Control of Soil Pollution (the “Action Plan”). As the national strategy for soil pollution prevention and control, the Action Plan involved a strengthening of supervision over sources of pollution and the requirement to undertake soil pollution surveys, to control pollution, and, where necessary, to undertake soil restoration in order to ensure the safe use of soil. The Action Plan required the establishment of a comprehensive regulatory regime on soil pollution prevention and control by the year 2020. In a further development, in December 2016, the Ministry of Environmental Protection released the Administrative Measures for the Soil Environment of Polluted Land (for Trial Implementation). Various local authorities have also introduced their own plans to implement the Action Plan.
On August 31, 2018, the National People's Congress passed the Law of the People's Republic of China on Prevention and Control of Soil Pollution ("Soil Pollution Prevention Law"), which will come into effect on January 1, 2019. The Soil Pollution Prevention Law is based on the principals of “prevention first, priority in protection, classification management, risk management, polluter’s responsibility, and public participation.” It addresses these from perspectives including planning, standards, survey and monitoring, prevention and protection, risk control and restoration.
Previously, any legal requirements relating to soil contamination were found dispersed throughout other laws and regulations, such as the Air Pollution Prevention Law and the Water Pollution Prevention Law. The Soil Pollution Prevention Law is the first specialized law on soil pollution prevention and control in China, and it represents an important milestone in implementing the requirements of the Action Plan and underscoring the use of the law to prevent and control soil pollution. We have summarized the key content of the Soil Pollution Prevention Law of relevance to manufacturing companies, including those involved in the emission and/or storage of pollutants as part of their operations:
• “Soil pollution” refers to the phenomenon where a certain substance enters the surface soil of land due to human factors and causes changes in the soil’s chemical, physical, and biological properties, as well as other characteristics, thereby affecting the functionality of the soil, the effective utilization of the soil, which endangers public health or destroys the ecological environment.
• The Ministry of Ecology and Environment (the “MEE”) has published a list of the main substances that are toxic and hazardous to soil. The state will establish standards for soil pollution risk management, and will encourage provincial governments to develop local standards that are no lower than national standards. In practice, it will be the responsibility of regulatory authorities to evaluate soil pollution and to take the necessary measures based on the list and published standards.
• The MEE, together with other competent authorities, is required to undertake a nationwide survey of the soil pollution status in China at least once every ten years. Relevant departments of the State Council and local governments must organize their own detailed surveys based on actual conditions. The state will organize the necessary mechanisms to share the relevant data on the condition of the soil. Based on the results of the abovementioned surveys, local governments should formulate plans for the prevention and control of soil pollution locally and conduct, or require enterprises, that is the land user, to conduct surveys on the status of local soil pollution.
• If the soil pollution assessment report indicates that the pollutant content of construction land exceeds the soil pollution risk control standard, the person responsible for soil pollution, or the land user, shall conduct a soil pollution risk assessment and submit the assessment report to the environmental protection authorities. Where there is a failure to undertake the assessment, the person responsible for soil pollution, or the land user, will face fines of up to RMB 1 million, and the directly responsible person will be fined up to RMB 20,000.
• Local governments shall formulate a directory of enterprises in their administrative regions that are required to monitor their soil pollution. Enterprises listed therein will face more stringent prevention obligations, such as formulating and implementing their own plans for the prevention of soil pollution and conducting soil pollution status investigations prior to altering the land usage for production or operation purposes, or before the transfer or reversal of land use rights. If the enterprise breaches such obligations and causes serious consequencesIn the event of any breach of such obligations, it the breaching enterprise will face a fine of up to RMB 2 million, and may be ordered to suspend production for rectification.
• The State shall implement a list of construction land subject to pollution risk control and/or restoration requirements. At a provincial level, the environmental protection authorities shall, together with other relevant authorities, develop their own list of polluted construction land that is subject to soil pollution risk control and restoration; and if necessary, these authorities may require risk control or restoration of the polluted construction land and make this information available to the public. In addition, local government authorities may not approve contaminated land parcels that appear in the List of Polluted Land Subject to Soil Pollution Risk Control for use as residential land, or as land that is used for public purposes.
• The Soil Pollution Prevention Law sets forth risk control and soil restoration principles and obligations for persons responsible for soil pollution, land users, and the government. Persons responsible for soil pollution have the obligation to limit the risk and undertake soil restoration. If the person responsible for soil pollution or the land user does not take risk limitation measures or undertake restoration, such person will be fined up to RMB 1 million; the directly responsible person will be fined up to RMB 20,000; and in serious circumstances, there could be criminal liabilities.
The state appears to be vigorously and determinedly using the legislative process to prevent and limit soil pollution. The subsequent implementation of the Soil Pollution Prevention Law provides a strong suggestion that future regulation to prevent and limit soil pollution will become ever more standardized and strict. We will continue to follow up on any developments in this area and to share any items of relevance, such as results of soil pollution surveys, to our corporate clients. If you should have any specific inquiries, please feel free to contact us by email: email@example.com.