7 November, 2015
1 Do you have any statutes specifically relating to land contamination?
2 Is there a definition of contaminated land in your laws?
Yes. The Soil and Groundwater Pollution Remediation Act (SGPRA) provides a definition of “soil pollution” (i.e., contaminated land) as the introduction into soil of substances, biological organisms or forms of energy that alter soil quality, impact the normal use of the soil, or endanger public health and the living environment.
Statutory responsibility for cleanup
3 Are there any cleanup or remediation laws with regard to contaminated land?
4 If so:
4.1 Who is primarily responsible for the cleanup?
The polluter is primarily responsible for the cleanup.
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?
No. If the polluter cannot be found, the governmental agencies concerned will take the necessary cleanup measures. However, if an owner, administrant or user of a piece of land fails to demonstrate due diligence as a good manager, in the event that a piece of polluted land is officially declared a control site or remediation site, he or she, along with the polluter, shall be held jointly and severally liable by the competent authorities for the costs incurred in the cleanup.
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?
The owner and the occupier will be jointly liable. However, the nonpolluting party can claim reimbursement of his or her cleanup expenses from the polluter.
4.4 Does the liability to clean up include historical contamination? If not, who pays for this cleanup?
No. The polluter who has caused the historical contamination will be liable for the cleanup; if the polluter is not available, a fund established by government will pay for that.
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 Environment Protection Administration (the central competent authority) promulgated The Standards for Soil Pollution Control and The Standards for Groundwater Control, which specify the limits to polluting substances allowed in the soil and groundwater, respectively.
6 What level of cleanup is required?
A cleanup is usually required at a level when the concentration of the contaminant substance has been reduced to below the permitted concentrations stipulated in the Standards for Soil Pollution Control and the Standards for Groundwater Control.
However, where factors such as the geological conditions, pollutant characteristics or pollution remediation technologies preclude remediation until pollutant concentrations are less than soil and groundwater pollution control standards, the party who is responsible for the cleanup may provide soil and groundwater pollution remediation goals based on environmental impact and health risk assessment results, and submit the same for the authority’s approval. After obtaining the central competent authority’s approval, the cleanup will be required at the level set forth in the remediation goals, instead of below the applicable control standards.
7 Are there different provisions relating to the cleanup of water?
The requirements for the cleanup of groundwater are the same as those for soil, and both are provided under the SGPRA.
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 not a criminal offense to own contaminated land.
It is an offense, however, to contaminate land, but criminal punishment applies only when the polluter deliberately contaminates the land.
The SGPRA stipulates: “Those that pollute the soil deliberately with the intention to change the classification of land use shall be punished by one to five years of imprisonment and may be fined a maximum of NTD1 million.”
Further, “…those who pollute soil or groundwater deliberately, causing land to become a pollution control site or remediation site, shall be punished with one to five years of imprisonment.” In addition, “If the violations in the foregoing paragraph cause death, the violators shall be punished by life imprisonment or a minimum of seven years of imprisonment, and may be fined a maximum of NTD5 million; those that cause severe injury shall be punished by three to 10 years of imprisonment and may be fined a maximum of NTD3 million.”
9 Is it a criminal offense not to comply with the requirement to clean up? If so, what are the penalties?
Noncompliance with cleanup ordered by the authorities may subject the noncomplying party to fines not exceeding NTD1 million. If such noncompliance causes death or injuries, the noncomplying party may be subject to criminal penalty that may extend to a life sentence in prison.
10 What authority enforces cleanup?
The Environment Protection Bureau of the local government concerned enforces cleanup.
11 Are there any defenses?
As cleanup is the absolute liability of the polluter, under such a situation, we believe the defenses shall pertain only with regard to: (i) whether the named polluter is the actual polluter or the only polluter; and (ii) the extent to which the polluter shall be required to clean up, including whether the method requested by the regulator is feasible or practical.
12 Can third parties / private parties enforce cleanup?
The SGPRA provides that the victims or public interest groups may request the authority concerned to implement a cleanup measure, and if the latter fails to do so, the victims or public interest groups may file a suit in court to seek a ruling that orders the authority to perform its duty.
13 Can third parties claim damages?
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?
Yes. The SGPRA requires land owners/users to conduct investigations under the following circumstances:
The transferor of a piece of land who is in one of certain industry sectors designated by EPA should provide soil contamination investigation data when turning over the land. If the land is declared a control site or remediation site after the transfer, the transferor who fails to provide such data during the transfer will still be treated as the owner of the contaminated land, even though the ownership of the land has been transferred.
An entity that is in one of certain industry sectors designated by EPA shall submit the soil contamination investigation data for the local environmental regulator’s review before it applies for establishment and cease of operations, changes its line of business, or changes the boundary of its site. Without such data, the authorities may not grant the license needed for the entity’s establishment or cease of operations (e.g., factory license).
15 Can a party responsible for cleanup under statutory law pass on its cleanup liability to the purchaser?
15.1 Under the general law?
No. The polluter will still be liable even after he or she sells the land; the polluter cannot pass the cleanup liability to the purchaser.
No. Even if the polluter and the land purchaser enter into a contract that passes the liability to the purchaser, the government agencies concerned will still hold the polluter liable for the cleanup.
16 Is there anything else about contaminated land that you would bring to the attention of a potential purchaser of that land?
If the land is used by enterprises designated by the EPA, the current land owner shall provide investigation data before the land is turned over; otherwise, the land owner will not be released from possible liability afterward.
For further information, please contact:
Tiffany Huang, Partner, Baker & McKenzie