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Environmental Protection( Series 3)--Compliance Considerations Related to Soil Pollution Surveys

2019.03.06 ZHU, He (George)、Carey Ni、Zhengming Wang

Introduction


After last article “Several Issues Concerning Legal Compliance of Environmental Impact Assessment and Environmental Protection Facilities Completion Acceptance”, this article will focus on the soil pollution survey and related issues of relevance to manufacturing companies in recent years, especially those involved in the emission and/or storage of pollutants as part of their operations.


I. The Legal Basis for Soil Pollution Survey


Soil Pollution Prevention Law effective on January 1, 2019 has made some regulations on soil pollution surveys, risk control and/or restoration, such as the nationwide survey of soil pollution status, the soil pollution status survey of construction land with potential soil pollution risks, the implementation of the list of construction land subject to pollution risk control and/or restoration requirements, as well as the requirements of soil pollution status survey for enterprises for pollution monitoring when altering the land usage for production and operation purposes.


Soil Pollution Prevention Law for soil surveys are relatively principled. When the local governments implemented the Action Plan on the Prevention and Control of Soil Pollution (the “Action Plan”) issued by the State Council in May 2016, the Administrative Measures for the Soil Environment of Polluted Land (for Trial Implementation) issued by the Ministry of Environmental Protection in December 2016 and in 2018 soil pollution control plans issued by local governments, we noticed that local governments have implemented or are implementing some additional detailed plans or requirements. In this regard, we’ve briefly summarize some points below as reference for relevant companies.


II. Specific Requirements of Soil Pollution Investigation and Legal Consequences of Violations


1) Survey of Soil Pollution Status on Enterprise Land in Key Industries (Led by Government Authorities)


Generally, local governments firstly conduct the fundamental information surveys of land in key industries (mainly including non-ferrous metal smelting, chemical, coking, electroplating, tanning, hazardous waste disposal, and other industries involved in the production, storage, and use of hazardous chemicals) and make the list of surveyed enterprises and key industrial parks selected according to production scale, characteristic pollutants and other factors; secondly, according to the soil quality, pollution sources and pollutant migration routes, the potential risks of the enterprise land in the screening list are divided into high, moderate, or low; finally, preliminary sampling surveys are initiated towards all high risk land and some moderate or low risk land in specific industries.


2) Investigation on Suspected Polluted Land and Polluted Land (Enterprises Coordinated by Government Authorities)


The local environmental protection authority shall, based on the investigation of the soil pollution status of the enterprises land in key industries, determine the list of suspected pollution land by consensus with other government authorities. The enterprises in the list shall conduct preliminary investigations on soil environment and prepare preliminary investigation reports. Subsequently, the local environmental protection authority will establish a list of polluted land according to the preliminary investigation report submitted by the enterprise, and the enterprise whose land is listed shall conduct a detailed survey of the soil environment and prepare a detailed investigation report to explain the distribution of pollutants and their effects to the soil and groundwater. In addition, in accordance with the Administrative Measures for the Soil Environment of Polluted Land (for Trial Implementation), enterprises also shall conduct Risk assessments and prepare reports based on the detailed investigation of soil environment, indicating pollutants, risk levels, governance and restoration recommendations. According to the Soil Pollution Prevention Law, the construction land with soil pollution risks indicated by general survey, detailed investigation of soil pollution status, monitoring and on-site inspection and the land whose usage purposes are altered to residential, public management and public services, shall be conducted with the survey of soil pollution status. The soil pollution assessment report shall be reported to the government authority for evaluation. If the soil pollution assessment report indicates that the pollutant content of construction land exceeds the soil pollution risk control standard, the polluter, or the land user, shall conduct a soil pollution risk assessment. Where there is a failure to undertake the assessment, the polluter, or the land user, will face fines of up to RMB 1 million depending on the specific circumstances, and the person in charge or any other directly responsible person may be fined up to RMB 20,000.


Specifically, the Ministry of Ecology and Environment and the State Administration for Market Regulation jointly issued and implemented two new national standards, including Soil Environmental Quality Soil Pollution Risk Control Standards of Agriculture Land (for Trial Implementation) (GB 15618-2018) and Soil Environmental Quality Soil Pollution Risk Control Standards of Construction Land (for Trial Implementation) (GB36600-2018) on August 1, 2018. The new standard sets the maximum screening value and regulatory value of soil pollution risk and the corresponding risk management requirements. According to GB36600-2018, if the pollutant content in the soil does not exceed the risk screening value, it is generally considered that the soil pollution risk of the construction land is negligible; if the pollutant content exceeds the risk control value, the risk is generally considered unacceptable, and the risk management or restoration measures should be taken. Where the contaminant content is between the screening value and the regulatory value, the risk needs to be further assessed to determine whether risk management or restoration measures are needed.


3) Soil Pollution Control and Restoration


Strictly speaking, enterprises shall monitor pollutant emissions to prevent them from polluting the soil and report to the Environmental Protection Agency and relevant authorities in the event of environmental pollution emergencies. At the same time, according to the principle of “who pollutes, who protects”, enterprises shall control and restore the pollution caused by themselves in production and operation. Soil Pollution Prevention Law also clarifies that persons responsible for soil pollution have the obligation to limit the risk and undertake soil restoration. Specifically, the Ministry of Ecology and Environment focuses on the regulation of land reuse, that is the polluted land whose use rights have been/will be reversed or whose usage will be altered to residential, commercial, educational, healthcare, nursing public facilities, and is required to carry out risk assessment on the reused polluted land. If it is confirmed that the land needs to be controlled and restored, the enterprise shall implement control and restoration according to the law. After the project completion, the enterprise shall entrust the third-party agency to implement assessments on the effects of the restoration project and prepare a report accordingly. If the polluted land has not been controlled and restored or has not met the soil environmental quality requirements of the relevant planned land, the corresponding environmental protection authority shall not approve the environmental impact assessment statement for the construction project related to the polluted land. According to Soil Pollution Prevention Law, if the polluter or the land user fails to undertake restoration, such person will be fined up to RMB 1 million, the person in charge or any other directly responsible person may be fined up to RMB 20,000, and in serious circumstances, there could be criminal liabilities.


III. Conclusion


With the subsequent implementation of Soil Pollution Prevention Law, it is foreseeable that the supervision of soil pollution prevention in the future will be more standardized and stricter. If there is historical pollution in enterprise land or soil pollution caused or may be caused by production and operation, the enterprises shall take appropriate measures in advance to assess the corresponding environmental and legal risks, and actively respond to and cooperate with investigation actions being or may be initiated by the government.


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