7 November, 2015
1 Do you have any statutes specifically relating to land contamination?
No, there is no specific legislation relating to land contamination.
The primary legislation in relation to establishing an administrative framework and a basis for action on all environmental issues is the Enhancement and Conservation of National Environmental Quality Act B.E. 2535 (1992) (NEQA). Notification of the National Environment Quality Committee No. 25 (B.E. 2547) regarding Standards of Soil Quality (the “Notification”), issued under NEQA, sets out acceptable levels of soil contamination. For this purpose, the Notification divides soil into two main categories:
- Soil used for the purposes of living and agriculture
- Soil used for other purposes
In this respect, the acceptable level of contamination for each category of soil depends on the amount of certain compounds in the soil.
In addition, the Notification establishes specific methods of testing soil for contamination with regard to each type of compound.
Moreover, the Land Development Act B.E. 2551 (2008) (LDA) also empowers the Ministry of Agriculture and Cooperatives to regulate the utilization of the land that uses or is contaminated by chemicals or other materials that could cause derogation to the land’s agricultural utilization. LDA also prescribes appropriate measures to remedy the said land.
2 Is there a definition of contaminated land in your laws?
No, there is no definition given for “contaminated land.” The Notification defines “standard of soil quality,” but does not define substandard soil as “contaminated land.” The quality standards set under NEQA merely indicate a benchmark for desirable environmental conditions. As such, NEQA imposes no punishment on someone who degrades the soil of a particular piece of land to a level that does not meet the quality standards. However, strict civil liability may apply if such degradation causes harm to an individual’s life, health or property.
Statutory responsibility for cleanup
3 Are there any cleanup or remediation laws with regard to contaminated land?
Although there is no specific piece of legislation regarding land contamination, the general remedy for environmental contamination/pollution provided under NEQA is that of compensation. Generally, the owner or possessor of the source of pollution is liable to compensate for damages, regardless of whether the leakage or contamination is the result of a willful or negligent act committed by the owner or possessor. Such compensation includes reimbursement for all expenses incurred by the government to clean up any pollution arising from the leakage or contamination.
Moreover, under the LDA, a polluter is required to restore the said land back to its original condition or compensate the state or persons suffering damages from the contamination in the case of land contamination.
4 If so:
4.1 Who is primarily responsible for the cleanup?
Under NEQA, land owners or persons who possess the land (e.g., tenants) are liable for compensation and cleanup costs. For example, the owner of a factory is responsible for compensation and cleanup costs related to the emission of wastewater that causes damage to the public. However, if the owner leases the factory to a tenant, and during the time the tenant occupies the premises, the factory emits harmful wastewater, the tenant will be responsible for compensation and cleanup costs.
Under the LDA, the polluter will also be responsible for the restoration of the contaminated land to its original condition.
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 LDA is silent on the situation in which the polluter could not be located. In this regard, it is possible that the land owner or the person possessing the land would still be held responsible under the NEQA.
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?
If it is found that both the owner and the tenant caused such contamination, they will equally share responsibility for the cleanup costs (as well as compensate injured/damaged third parties).
4.4 Does the liability to clean up include historical contamination? If not, who pays for this cleanup?
The LDA broadly states that the polluter is required to restore the land to its original condition. However, it is currently unclear whether the polluter would be required to restore the contaminated land back to the condition just before his/her action, or before the land was contaminated in the first place. However, it is often difficult to determine when the land is contaminated. Therefore, based on the LDA, it is possible that all of the polluters (to the extent that they can be found) may be jointly liable for the cleanup of the land until it is restored to its original, non-contaminated condition. Moreover, pursuant to the NEQA, the person/entity that owned or occupied the land at the time it was contaminated may also be held jointly liable with the polluters for the cleanup of the land as well.
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 is no regulation in place that specifically determines when or whether cleanup is required. In this regard, the LDA merely provides that in the case of land that uses or is contaminated by chemicals or other materials that could cause derogation to the land’s agricultural utilization, cleanup or compensation would be required, without prescribing a specific level of polluting substances that is permissible or a form of risk assessment. In practice, however, cleanup may be required by the local authority upon the occurrence of contamination or by a court order. If a case has not been filed with the court, the task of cleaning up will depend on the discretion of the relevant authority. In this regard, the court or the official may use the level of compounds within the soil as prescribed under the NEQA as reference to determine whether land has been contaminated and/or whether cleanup is required.
6 What level of cleanup is required?
As there is no specific regulation deciding whether cleanup is required, the level of cleanup is determined on a case-by-case basis. Please see Item 5.
7 Are there different provisions relating to the cleanup of water?
Yes, there are, and they are as follows:
- With respect to wastewater treatment, according to NEQA, the owner or the possessor of wastewater has a duty to put a wastewater treatment system, as prescribed by law, in place. Otherwise, the owner will be punished by imprisonment not exceeding one year, or a fine not exceeding THB100,000, or both.
- In respect of oil spills into water, the Regulation of the Office of the Prime Minister on the Prevention and Combating of Water Pollution Caused from Oil, B.E. 2547 (2004) sets out how government authorities can establish contingency plans in the event of water pollution caused by oil spills. The relevant governmental authorities or state enterprises are authorized to take legal action to claim compensation from the polluter, provided they took action to remedy the consequences of such pollution.
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, it is not a criminal offense to own contaminated land or to contaminate land. However, under the LDA, in the event that the Ministry of Agriculture and Cooperatives has issued a rule/measure governing the utilization or prohibition of certain contaminated land, violators of such a rule/measure could be subject to a maximum of three months of imprisonment and/or a maximum penalty of THB5,000.
9 Is it a criminal offense not to comply with the requirement to clean up? If so, what are the penalties?
There is no direct penalty for not complying with a requirement to clean up contaminated land. However, government authorities can close a factory temporarily or permanently if its operations has caused, is causing and/or may cause serious harm, injury or trouble to persons or property in the factory or in its vicinity, as well as prohibit certain actions/activities in relation to the contaminated land. If the polluter, land owner or possessor refuses to clean up or to pay cleanup costs, the relevant authority can also request that a Thai court issue an order seizing the assets of the polluter, land owner or possessor, as the case may be, and sell such assets by public auction, in order to obtain remuneration for the cleanup expenses.
10 What authority enforces cleanup?
Under NEQA, the authorized agency overseeing environmental enforcement is the Department of Pollution Control. Under the LDA, the responsible authority is the Land Development Committee, Ministry of Agriculture and Cooperatives.
11 Are there any defenses?
The polluter may not be liable under the LDA if he or she can prove that he or she did not cause the land contamination. Pursuant to the NEQA, the land owner or possessor will not be liable for cleanup costs (or compensation to injured/damaged third parties), if he or she can prove that the contamination was the result of:
- force majeure or war;
- an act done in compliance with an order of the government or a state authority; or
- an act or omission of the person who sustained injury or damage, or of any third party (e.g., the previous land owner).
12 Can third parties / private parties enforce cleanup?
No. Only the government has direct authority in respect to cleanup enforcement. However, a private party suffering damages from the land contamination may indirectly enforce the cleanup by requesting the relevant governmental authority or the court to look into the issue and enforce the cleanup.
13 Can third parties claim damages?
Yes. Third parties may claim damages on the grounds of wrongful acts, under Section 420 of the Civil and Commercial Code, if the contamination causes injury to the life, body, health, liberty, property or other rights of a person (even if the quality of the land meets the benchmark prescribed by the Notification).
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, there is no such requirement. Under general principles regarding sales contracts, the seller is liable for any defect, including contamination, in the land sold that impairs either its value or its fitness for the purposes of the contract, unless the buyer knew of the defect at the time of sale, or would have known of it if he or she had exercised such care as might be expected from a person of ordinary prudence. However, the burden of proof could become a problem for the buyer. If the buyer cannot prove that the land contamination was caused by the seller, the buyer would eventually be liable or responsible for the contaminated land.
15 Can a party responsible for cleanup under statutory law pass on its cleanup liability to the purchaser?
15.1 Under the general law?
As the LDA specifically states that the polluter is liable for cleanup, in case the polluter is the seller, it would not be possible for the seller to contractually pass this cleanup liability under the LDA to the purchaser. However, the polluter may contractually request the purchaser to subsequently indemnify him or her against any loss or compensation that it may suffer as a result of this cleanup obligation.
However, under the NEQA, since the owner/possessor of the contaminated land is also assumed to be liable or responsible for the contaminated land, unless the purchaser (i.e., the current owner/possessor of the land) can prove that the land contamination was caused by the seller (i.e., the previous owner), the purchaser would generally be liable or responsible 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?
It is generally advisable for purchasers of land to conduct environmental due diligence in order to determine the status of the land at the time of purchase. However, there is no legal requirement in this regard. An environmental assessment will establish baseline contamination levels on the land at the time of purchase. If the purchaser is subsequently accused of land contamination, he or she can prove his or her non-involvement based on such environmental due diligence.
For further information, please contact:
Peerapan Tungsuwan, Partner, Baker & McKenzie