5 November, 2015
Legislative framework
1 Do you have any statutes specifically relating to land contamination?
Yes. The Soil Contamination Prevention Law (dojo osen taisaku ho), Law No. 53 of 2002 (the “SCPL”), and the Farm Land Soil Contamination Law both specifically regulate land contamination.
2 Is there a definition of contaminated land in your laws?
There is no definition of “contaminated land.” However, land will be registered as a “designated area” and/or subject to remediation orders if any of the 26 “specified harmful substances”1, 2are found in concentrations greater than the standards set out in the SCPL.3
Statutory responsibility for cleanup
3 Are there any cleanup or remediation laws with regard to contaminated land?
Yes (please see 1).
4 If so:
4.1 Who is primarily responsible for the cleanup?
The landowner is primarily responsible. The polluter will only be ordered to implement remedial measures where: (i) the identity of the polluter is known; (ii) the landowner submits that it is the polluter who is responsible for undertaking such remedial measures; and (iii) the local prefectural governor considers such an order appropriate (in consideration of the financial status of the polluter).
Where the landowner is required to carry out remedial measures as a result of an order issued by government authorities under the SCPL, he or she may also claim compensation from the polluter for remedial measures the landowner carries out.
4.2 If it is the polluter, what happens if the polluter cannot be found? Is the liability passed on to the owner or the occupier?
Please see 4.1 above. The landowner is primary responsible.
4.3 If the polluters are both the owner and the occupier (e.g., the landlord and a tenant), how is the liability apportioned between them?
In principle, the landowner will be liable. However, depending on the terms of the lease agreement for the land, the occupier may bear liability.
1 The 26 substances are cadmium; lead; chromium (VI); arsenic; total mercury; alkyl mercury; selenium; fluorine; boron; cyanide; dichloromethane; carbon tetrachloride; 1,2-dichloroethane; 1,1-dichloroethylene; cis 1,2-dichloroethylene; 1,1,1-trichloroethane; 1,1,2-trichloroethane; trichloroethylene; tetrachloroethylene; benzene; 1,3-dichloropropene; PCB; thiram; simazine; thiobencarb; and organic phosphorus.
2 Dioxan and vinyl chloride monomer are under discussion to be added to the specified harmful substances.
3 The Standard set out in the SCPL for 1,1-dichloroethylene has been revised from 0.02mg/l to 0.1mg/l. in March 2014. The revision of the standard for trichloroethylene and cadmium are now under discussion.
4.4 Does the liability to clean up include historical contamination? If not, who pays for this cleanup?
Yes. In principle, the landowner will be primarily responsible for the remediation, even if he or she is not the polluter (i.e., where cleanup orders are made, the landowner will be responsible for this cleanup even where contamination results from the activities of prior users or owners). The SCPL has retrospective application in the sense that it applies to historical contamination even if the contamination was not unlawful at the time it first occurred.
Cleanup standards
5 How is it decided whether cleanup is required? For example, are there regulations specifying limits to polluting substances that are permitted, or is some form of risk assessment carried out?
The SCPL sets out specific limits for the 26 specified harmful substances. If any of these substances are found in concentrations exceeding the relevant limits, and there is a risk to human health, then land will be classified as a “designated area.” Designated areas are further divided into the two subclassifications of:
- areas requiring remediation; and
- areas whose development must be notified to the authorities,
- depending on, among others, the extent of the contamination and the existence or likelihood of a risk of harm to human health.
- Areas requiring remediation
Land is placed in this category when the soil is contaminated by one or more of the 26 specified substances at levels above the statutory threshold in the SCPL and this contamination causes, or will likely to lead to, damage to human health either by inhalation, ingestion, bodily contact or as a result of drinking contaminated groundwater.
Areas whose development must be notified to the authorities
This designation applies to land that is contaminated by one or more of the 26 specified substances at levels above the statutory threshold in the amended SCPL, but where contamination does not cause, or is unlikely to cause, damage to human health. For land in this category, remediation is not required until the land is to be developed, at which time the area must be remediated in accordance with the stipulations of the relevant ministerial ordinance.
An amendment (which came into force on 8 July 2011) to the enforcement regulations of the SCPL divides “areas whose development must be notified to the authorities” into four subcategories, as follows:
- Landfill controlled areas, which were established by reclamation or drainage and (i) which are located in restricted industrial zones; or (ii) where the groundwater in such area will not be potable in the future
- Special naturally derived areas that are affected by naturally occurring contamination
- Special landfill areas that were established by reclamation or drainage, and are contaminated
- by land reclamation material
- Appropriately controlled areas other than those listed above
Before taking any action that may change the character of land in these defined areas, the prefectural governor must be notified of the type of development (i.e., how the character of the land will be changed), the location of the land, the methods that are being proposed to be used, the scheduled date of commencing the development, and other matters defined in the relevant ministerial ordinance. If the prefectural governor deems that the methods described in the notification do not conform to the standards prescribed in the ministerial ordinance, he or she may order the person who has filed the notification to revise the development plan. However, where the land falls into any of the categories (a) to (c) above, development that will change the character of the land will be permitted to some extent, so the likelihood of an order to revise the development plan is less likely than for other areas.
6 What level of cleanup is required?
This will depend on the substance(s) found, the extent of contamination, and the present use of the land (e.g., a children’s playground will require a much higher standard than land in an industrial zone).
The primary objective of cleanup measures is to prevent harm to human health. As a result, under the SCPL, where soil contains any one of nine direct-ingestion-risk substances in concentrations exceeding the statutory threshold, and there is a risk of inhalation, ingestion or bodily contact with the soil, resulting in harm to public health, prefectural governors will order the implementation of remediation measures in accordance with the provisions of applicable ministerial ordinances.
To the same end, under the SCPL, where remediation is required or ordered under the SCPL, landowners will be required to implement the specified measures within a clearly stipulated time frame.
The details concerning cleanup obligations under the SCPL are set out in ministerial ordinances. Remediation measures for substances on the abovementioned direct ingestion risk list include the following:
- Capping/sealing off or covering topsoil
- Declaring an area off-limits
- Replacing contaminated soil with soil from other layers
- Excavating and removing contaminated soil
- Replacing contaminated soil with soil from outside the designated area
The landowner may use substitute remedial measures that will result in an equivalent or a better level of remediation than the remedial measures the landowners are instructed to implement.
7 Are there different provisions relating to the cleanup of water?
Where there is a risk of harm to public health from ingesting contaminated groundwater, remediation measures are stipulated by the prefectural governor in accordance with ministerial ordinances, as referred to in section 6.
The SCPL also regulates remediation measures for lawful substances (volatile organic compounds or VOCs and agricultural chemicals), where their concentration in the soil exceeds the statutory threshold. Remediation measures for such substances are also stipulated based on the levels and extent of soil and groundwater contamination. The list of standard remediation measures includes the following:
- Measurement of groundwater quality
- Physical containment by seepage control measures
- Containment using liner facilities
- Measures to prevent the spread of groundwater pollution
- Excavation and removal of contaminated soil
- Insolubilization
Penalties, enforcement and third-party claims
8 Is it a criminal offense to contaminate land or to own contaminated land? If so, what are the penalties?
No.
9 Is it a criminal offense not to comply with the requirement to clean up? If so, what are the penalties?
Yes. The penalty is imprisonment for a maximum period of one year or a maximum fine of JPY1 million.
10 What authority enforces cleanup?
The Ministry of Environment, acting through the prefectural governments, enforces cleanups.
11 Are there any defenses?
There are none.
12 Can third parties / private parties enforce cleanup?
No.
13 Can third parties claim damages?
Third parties cannot claim damages under the SCPL. However, third parties may claim damages on the basis of tort law.
Acquisition of contaminated land
14 Is it a legal requirement in your jurisdiction to conduct investigations for potential contamination in connection with the sale of property?
No.
15 Can a party responsible for cleanup under statutory law pass on its cleanup liability to the purchaser?
15.1 Under the general law?
Yes.
15.2 Contractually?
Yes.
16 Is there anything else about contaminated land that you would bring to the attention of a potential purchaser of that land?
The SCPL contains a provision that requires landowners to provide advance notice to prefectural government authorities when they plan to develop any area in excess of 3,000 square meters. In such a case, the purchaser would be obliged to conduct a survey to check the site’s history of use, and determine whether the area is likely to be contaminated. If the investigation indicates that the area is likely to be contaminated, the purchaser or landowner is further required to investigate potential contamination and carry out appropriate remedial measures under the SCPL.
The SCPL allows landowners to apply voluntarily for their land to be designated as an “area requiring remediation” or as an “area with respect to which notification is required at the time of development.”
In addition to the SCPL, purchasers should investigate any applicable prefectural environmental ordinances that may impose requirements that are stricter than those under the SCPL.
The Law Concerning Special Measures Against Dioxins of 2000 may also be applicable to contaminated land. This law sets out environmental quality standards for the purpose of preventing and remediating contamination of the environment that is caused by dioxins, and provides remediation measures for dioxin-contaminated soil and groundwater.
For further information, please contact:
Kana Itabashi, Baker & McKenzie GJBJ Tokyo Aoyama Aoki Koma Law Office
Kana,itabashi@bakermckenzie.com
