23 October 2020
The Supreme Court rendered the 109-Tai-Shang-1872 Decision of May 14, 2020 (hereinafter, the “Decision”), holding that although reclaimed asphalt payment may be reused as general industrial wastes, still if a company dumps reclaimed asphalt pavement on an unpermitted land without approval, the legal representative of the company shall be guilty of the offense under Article 46, Paragraph 4 of the Waste Disposal Law.
According to the facts underlying this Decision, A was the site director of Company B’s Residential Project X, while C was the legal representative of Enterprise D. Although A obviously knew that a land shall not be provided to another party for the dumping of wastes without the approval of the competent authority and C was apparently aware that waste removal and disposal shall not be engaged without obtaining approval documents for waste removal and disposal in accordance with Article 41 of the Waste Disposal Law, they separately carried out their intent to violate the Waste Disposal Law where A retained C of Enterprise D, which did not have an approval document for waste removal, to transport reclaimed asphalt pavement from bicycle lanes, which is general industrial waste, to dump the waste on a land (hereinafter, the “Land in this Case”) owned by Company B with an intention to use the waste for paving road surfaces in the future. The above situation was detected by personnel dispatched to visit the site for inspection by the Environment Protection Bureau of Taichung City Government after relevant leads were followed.
According to this Decision, Article 39, Paragraph 1 of the Waste Disposal Law provides that industrial wastes shall be reused pursuant to relevant requirements of the central competent authority for specified business or central competent authority and are not subject to restrictions under Articles 28 and 41. The provisions on the reuse of industrial wastes under the Waste Disposal Law authorize the central competent authority for specified business to prescribe administrative rules for the sake of administration, and such reuse is not subject to the restrictions under Article 41 of the same law (requiring an application to the competent authority or an agency commissioned by the central competent authority for an approval document issued to a private waste disposal institution). However, even for reusable materials, they shall still be reused pursuant to relevant laws and regulations and shall not be disposed of at will. In addition, the legislative objective of Article 1 of the Resource Recycling Law indicates “for purposes of conserving the use of natural resources, reducing the generation of wastes and promoting recycling and reuse of substances.” Article 19, Paragraph 1 indicates more specifically that “renewable resources not recycled and reused pursuant to applicable requirements shall be deemed wastes and shall be recycled, removed and processed pursuant to the Waste Disposal Law” in order to prevent operators from citing the provisions of the Resource Recycling Law as the basis for shifting their liabilities. Therefore, even for reusable industrial wastes, if they are not reused pursuant to relevant laws and regulations, they shall be dealt with in accordance with the Waste Disposal Law, which is inherently applicable.
In addition, according to this Decision, the original decision concluded that although the reclaimed asphalt pavement at issue is a reusable general industrial waste, this case did not involve any processing act for the purpose of reuse pursuant to applicable requirements. Moreover, Enterprise D, which was operated by C and did not receive any approval document for waste removal, dumped the reclaimed asphalt pavement at issue on the Land in this Case as provided by A without the approval of the competent authority. Therefore, C was guilty for the offense under Article 46, Subparagraph 4 of the Waste Disposal Law, while A was guilty of the offense under Subparagraph 3 of the same article. Such decision was not legally inappropriate.
For further information, please contact:
Tiffany Hsiao, Lee Tsai & Partners
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