7 November, 2015
Legislative framework
1 Do you have any statutes specifically relating to land contamination?
Yes. The Environmental Protection and Management Act (Cap. 94A) (the “Act”) governs land contamination. The Singapore Standard SS 593:2013 Code of Practice for Pollution Control (the “Code”) provides further guidance on land contamination controls in Singapore.
2 Is there a definition of contaminated land in your laws?
There is none. An indirect definition is, however, found in the term “pollution of the environment,” defined as “pollution of the environment due to the release (into any environmental medium) from any process of substances which are capable of causing harm to man or any other living organisms supported by the environment.” As land is likely to be deemed an “environmental medium,” the contamination of land should be covered by this definition.
Guidance may also be obtained from Section 20 of the Act where it is stated that the National Environment Agency (NEA) may make regulations to control the pollution of land “whereby the condition of the land is so changed as to make or be likely to make the land or the produce of the land obnoxious, noxious or poisonous.”
Statutory responsibility for cleanup
3 Are there any cleanup or remediation laws with regard to contaminated land?
Yes. Section 18 of the Act states that the director-general of Environmental Protection (“Director- General”) may, by notice in writing, require the polluter to remove and clean up the polluting matter, within a specified period to be determined by the Director-General as he considers fit.
4 If so:
4.1 Who is primarily responsible for the cleanup?
The polluter is primarily responsible for cleanup. However, the owner may be liable as a person who permits to be discharged: (i) any trade effluent, oil, chemical, sewage or other polluting matters into any drain or land without a written permission from the Director-General; or (ii) any toxic substance or hazardous substance into any inland water so as to be likely to cause pollution of the environment.
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?
The liability may be passed to the owner since unless the contrary is proven (which may be difficult if the polluter cannot be found), under Section 15(2) of the Act, the occupier of the premises (other than a principal contractor) is presumed to have discharged or caused or permitted to be discharged such polluting matter.
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?
Under Section 51 of the Act, all compensation, damages, fees, costs and expenses to be paid, the amount and the apportionment of the amount, and any question of liability can, in the case of a dispute, be summarily ascertained and determined by a Magistrate’s Court, or if the amount claimed exceeds the limit of the Magistrate’s Court, by a District Court.
4.4 Does the liability to clean up include historical contamination? If not, who pays for this cleanup?
The liability to clean up may include historical contamination unless the occupier can show that he or she did not discharge or cause or permit to be discharged any trade effluent, oil, chemical, sewage or other polluting matters in contravention of the Act.
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?
There are regulations specifying the limits of polluting substances that are permissible. Monitoring exercises and site assessment studies can also be carried out in various circumstances to decide if cleanup is required. Standards and technical guidelines for assessment and remediation of sites are provided in Annex T of the Code.
Under Section 21 of the Act, hazardous substances that are governed under the Act are listed in the Second Schedule. Under Section 26 of the Act, the Director-General may, by notice in writing served on the owner or occupier of any installation that is used or intended to be used to carry out activities involving the storage, handling and use of hazardous substances, require the owner or occupier to carry out an impact analysis in relation to any potential hazards.
Under Section 37 of the Act, the Director-General may, by notice in writing, require an owner or occupier of any premises from which any trade effluent or hazardous substance is generated and discharged into any land to install suitable monitoring equipment or system at any point along the line of discharge, to monitor the quality or quantity of such discharge. Records of such monitoring results have to be submitted to the Director-General, and any monitoring result that shows that any standard prescribed in the regulations has not been complied with may be admissible as evidence in any proceeding against the owner or occupier for failure to comply with the Act.
Section 7 of the Code states that when a site used for polluting activities is to be redeveloped, rezoned or reused for a non-polluting activity, a study should be conducted on the site to assess the extent of land contamination. If the site assessment study shows that the land is contaminated, the contaminated land needs to be cleaned up to comply with the authority’s requirements.
Under Paragraph 17.1 of the Code, when a piece of contaminated land is to be leased, transferred or sold to another party for the same or other polluting activity, a site assessment study should be conducted to allow the parties involved to ascertain the extent of the existing contamination, if any. When a site is to be developed for a polluting activity, it is recommended that a site assessment study be conducted to establish the baseline soil conditions for future assessment of land contamination.
6 What level of cleanup is required?
Where a site is to be redeveloped, rezoned or reused for a non-polluting activity, the contaminated site must be cleaned up to comply with the authority’s requirements.
Where a site used for polluting activity is to be leased, transferred or sold to another party for the same or other polluting activity, the standards for such assessment and remediation of the site are provided under Annex T of the Code.
7 Are there different provisions relating to the cleanup of water?
There are none. Section 18 of the Act applies to the cleanup of water as well.
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?
It is a criminal offense to contaminate land, unless a written permission has been obtained. Under Section 15(1) of the Act, any person who discharges, causes or permits to be discharged any trade effluent, oil, chemical, sewage or other polluting matters into any drain or land, without a written permission from the Director-General, will be guilty of an offense.
Ownership of contaminated land per se does not constitute an offense.
Under Section 17 of the Act, where the land has been contaminated due to the discharge of a toxic or hazardous substance into any inland water causing pollution to the environment (including land contamination), the offender will be liable to a fine not exceeding SGD50,000 or to imprisonment for a term not exceeding 12 months, or to both for a first conviction. For a second or subsequent conviction, the offender will be liable to both imprisonment for a term of not less than one month but not more than 12 months, and a fine not exceeding SGD100,000.
Where the land has been contaminated pursuant to Section 15(1) of the Act, or where the requisite written permission under Section 6 of the Act was not obtained, the general penalties under Section 67 of the Act apply:
- On the first conviction, the offender is liable to a fine not exceeding SGD20,000, and in the case of a continuing offense, to a further fine not exceeding SGD1,000 for every day or part thereof during which the offense continues after conviction.
- On a second or subsequent conviction, the offender is liable to a fine not exceeding SGD50,000, and in the case of a continuing offense, to a further fine not exceeding SGD2,000 for every day or part thereof during which the offense continues after conviction.
The court may, in addition to the above fines, order the offender to pay to the Director-General the amount of any expense incurred in connection with the execution of any work, together with any interest due thereon or any interest certified by the Director-General to be due from the offender at the date of his or her conviction.
9 Is it a criminal offense not to comply with the requirement to clean up? If so, what are the penalties?
Under Section 18 of the Act, any person who fails to comply with a notice issued by the Director- General in relation to the cleaning up of polluting matter is guilty of an offense and liable on conviction to a fine not exceeding SGD50,000.
10 What authority enforces cleanup?
The Director-General enforces cleanup duties.
11 Are there any defenses?
Under Section 75 of the Act, NEA may, subject to the directions of the Minister, exempt either permanently or for a period of time, any person, thing, premises or works or any class of person, thing, premises or work from any provision of the Act.
12 Can third parties / private parties enforce cleanup?
No.
13 Can third parties claim damages?
They may potentially do so under general 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?
Generally, it is not required , except in the following situations:
- Where a site used for polluting activities is to be redeveloped, rezoned or reused for a non- polluting activity
- Where a site used for polluting activities is to be leased, transferred or sold to another party for the same or other polluting activity
- Where a site is to be developed for a polluting activity.
Annex S of the Code has a list of “polluting activities,” which includes oil installations, chemical
plants, gas works, power stations and landfill sites.
15 Can a party responsible for cleanup under statutory law pass on its cleanup liability to the purchaser?
15.1 Under the general law?
The purchaser could potentially find himself liable, given the presumption under the Act that the occupier of contaminated land is viewed as the party that discharged or caused or permitted to be discharged any trade effluent, oil, chemical, sewage or other polluting matters, unless he or she can prove that it was someone else’s fault.
15.2 Contractually?
Yes it can, for financial liability, presumably by way of an indemnity from the purchaser to cover any subsequent fines, penalties, costs or expenses incurred as a result of any regulatory action. It is unlikely that the criminal penalties, that is, imprisonment, can be contractually passed to the purchaser.
16 Is there anything else about contaminated land that you would bring to the attention of a potential purchaser of that land?
A potential purchaser of a piece of contaminated land may wish to carry out a site assessment study and cleanup with the help of experts. Standards and technical guidelines that may be adopted for site assessment and remediation of contaminated land are provided in Annex T of the Code.
For further information, please contact:
