Vietnam – Guide To Contaminated Land.

7 November, 2015

 

Legislative framework

 

1 Do you have any statutes specifically relating to land contamination?

 

There are no specific statutes on land contamination in Vietnam. However, the Law on Environmental Protection1 (LEP) and its implementing regulations form the legislative foundation for environmental regulation.

 

2 Is there a definition of contaminated land in your laws?

 

There is no specific definition of contaminated land. The LEP provides the following general definitions:

Environmental composition refers to material elements that comprise the environment, such as land, water, air, sound, light, living beings and other forms of material.2

 

Environmental pollution pertains to a change in environmental composition that does not conform to environmental technical standards and environmental standards and adversely affects human beings and other living beings.3

 

The LEP provides a national set of environmental technical standards4 that include quality standards for the ambient environment as well as for waste.5 Quality standards for the ambient environment are classified into groups of technical standards for the following6:

 

• Land
• Water surface and underground water
• Sea water
• Air
• Sound, light and radiation
• Noise and vibration

 

Although there is no specific definition of land contamination, based on the general definitions above, it seems that any change in the composition of the environment that causes the quality of the land to fall below the quality standard for that land’s specific use will be considered land pollution or land contamination. 

 

Statutory responsibility for cleanup

 

3 Are there any cleanup or remediation laws with regard to contaminated land?

 

Yes, the LEP and Decree No. 1797 provide for the remediation of contaminated environments, including contaminated land. In particular, such remediation may be undertaken by either the polluter or the government, depending on what or who caused the pollution. If the polluter caused the contamination, it would be responsible for the cleanup.8 If the pollution is caused by a natural disaster or an unidentified source, the government would be responsible for the cleanup.9

Governmental agencies are the only entities empowered to conduct investigations of environmental pollution.10

 

4 If so:

 

4.1 Who is primarily responsible for the cleanup?

 

Under environmental protection legislation, the polluter has primary responsibility for cleanup.11 Under other sets of legislation, such as the Civil Code12 and the Land Law,13 it is implied that the landowner14 would not be responsible for the cleanup if the landowner did not cause the pollution.15

 

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 would probably not be passed. In cases where the cause of the contamination could not be identified (including cases where the polluter could not be found), the government would be responsible for the cleanup.16

 

However, Vietnamese environmental legislation does not explicitly state who would bear the ultimate liability in cases where the polluter could not be found. As mentioned above, landowners seem to be exempted from such liabilities.

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?

 

There is no Vietnamese law on whether and how the landowner and the occupier may apportion the cleanup liability between themselves. The landlord and the tenant may agree under the lease agreement that whichever party causes land pollution during the lease term will be liable for the cleanup. Such an agreement is not inconsistent with the abovementioned principles of the LEP and the Civil Code. Therefore, if the occupier is the de facto land user and the owner is not allowed to interfere with the occupier’s business on the land during the lease term (as usually agreed in the land lease agreement), it is very likely that the occupier will be fully liable for the land contamination. 

 

4.4 Does the liability to clean up include historical contamination? If not, who pays for this cleanup?

 

Vietnamese law does not allocate liability to any specific entity for cleaning up historical contamination. However, based on the abovementioned provisions, landowners should not be liable for cleaning up past contamination because they were not responsible for the corresponding contamination. If the past polluter could be identified and fails to implement rectification at the request of the authorities within the time frame provided by the authorities, the authorities would take the necessary enforcement action.17 If a government-sanctioned investigation determines that the land needs cleanup, and the past polluter could not be found, the government would be responsible for the cleanup and should therefore bear the corresponding expenses.

 

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?

 

Remediation is required after an investigation (conducted by the government) concludes that the land is contaminated and needs remediation.18

 

The law does not provide specific guidance on the forms that such remediation should take. It provides only that polluters must remedy the contamination in accordance with the form requested by competent authorities.19 Therefore, it is up to the authorities to determine whether remediation is required and which form of remediation to apply.

 

Remediation takes many forms, including cleanup, re-export of pollutants (if they are imported) and destruction of pollutants.20

 

Limits to polluting substances are specified in national and industry environmental standards and are still being developed and constructed. Currently, there are three soil-related national technical standards:

 

• QCVN 03:2008/BTNMT – These are national technical standards on the allowable limits to heavy metals in the soils (issued according to Decision No. 04/2008/QD-BTNMT, adopted by the Ministry of Natural Resources and Environment on 18 July 2008, promulgating the National Environmental Technical Standards).
• QCVN 15:2008/BTNMT – These are national technical standards on the pesticide residues in the soils (issued according to Decision No. 16/2008/QD-BTNMT, adopted by the Ministry of Natural Resources and Environment on 31 December 2008, promulgating the National Environmental Technical Standards).
• QCVN 45:2012/BTNMT – These are national technique regulations on the allowable limits to dioxin in soils (issued according to Circular No. 13/2012/TT-BTNMT, adopted by the Ministry of Natural Resources and Environment on 7 November 2012, promulgating the national technical standards on allowed limits of dioxin in soils).
• QCVN 54:2013/BTNMT – These are national technical regulation on remediation target values of persistent organic pesticides according to land use (issued according to Circular No. 43/2013/TT-BTNMT, adopted by the Ministry of Natural Resources and Environment on 25 

 

December 2013, promulgating the national technical standards on remediation target values of persistent organic pesticides according to land use).

 

Pollution can be classified into three levels: pollution, serious pollution and extra-serious pollution.21

 

6 What level of cleanup is required?

 

In general, cleanup level shall be set by competent authorities on a case-by-case basis,22 but this should also be based on the statutory national standards or the condition of the soils before being contaminated.

 

7 Are there different provisions relating to the cleanup of water?

 

There is none. The LEP and Decree No. 179 do not provide separate provisions on the cleanup of soil/land. The provisions on cleanup apply to both water and soil/land.

 

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?

 

Yes, under the Penal Code,23 contaminating land may be a criminal offense, but owning contaminated land that was not polluted by the owner is not. If contamination is not serious enough to warrant criminal liabilities, administrative sanctions may apply.24 There are two provisions of the Penal Code that may apply to an act of contaminating land.

 

In particular, the Amended Article 182 provides that anyone who discharges into the air, water, and/or land, pollutants or radiation in excess of the national standards for waste at a serious level, or severely pollutes the environment or causes other serious consequences, is subject to a fine of up to VND500 million (about USD23,58525) or imprisonment of up to five years, or both.26 In aggravated circumstances (where the act is committed in an organized manner, or the consequences are extra- serious), the term of imprisonment is up to 10 years.27 Additional penalties, such as prohibitions on holding certain posts, practicing certain professions or performing certain jobs for up to five years may also apply to convicted offenders in such cases.28

 

9 Is it a criminal offense not to comply with the requirement to clean up? If so, what are the penalties?

 

See Sections 4.4 and 8.

 

10 What authority enforces cleanup?

 

The following authorities have the right to enforce a cleanup: 

 

• Local authorities – Chairperson of People’s committees at the ward, district and provincial levels29
• Police – Chiefs of commune, district and provincial police, border gate police, export processing zone police, Environmental department police, etc.30
• Environmental authorities – Environmental inspectors of the Ministry of Natural Resources and Environment and provincial departments of natural resources and environment, etc.31
• Other officials empowered to apply administrative sanctions when they find violations of environmental regulations in their respective fields or jurisdictions32

 

11 Are there any defenses?

 

Only the Penal Code provides defenses for criminal liability. Decree No. 179 provides defense only in cases where the administrative sanction’s prescription has expired; however, there is no prescription for remediation as a form of sanction.33

 

The following arguments are provided as defenses against the application of criminal penalties: (i) unforeseen events34; (ii) lack of capacity for criminal liabilities due to mental illness35; and (iii) emergency situations.36

 

In the case of administrative sanctions, if the violator does not accept the investigation results and/or the applied administrative

sanctions, the violator is entitled to appeal the decision of the competent authority on imposing administrative sanctions, in accordance with the Law on Administrative Proceedings.37

 

12 Can third parties / private parties enforce cleanup?

 

No. Only government authorities have the right to enforce a cleanup.38

 

13 Can third parties claim damages?

 

Yes. Third parties/private parties may claim damages under the principle that a polluter is liable for damages, even if he or she is not at fault.39

 

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. 

 

15 Can a party responsible for cleanup under statutory law pass on its cleanup liability to the purchaser?

 

It probably cannot pass the liability to another party, unless such party gains approval from the authorities.

 

The Civil Code allows an obligor to transfer its civil liabilities to a third party if the obligee approves.40 However, it is unclear whether the cleanup liability is considered a civil liability because this liability is, first and foremost, a liability to the government. Moreover, the LEP is silent on whether such liability is transferable. In practice, the authorities may, at their discretion, allow the landowner (who is also the polluter) to pass its cleanup liability to the purchaser, provided the landowner-polluter has settled all other penalties imposed by the authorities.

 

15.1 Under the general law?

 

See Section 15 above. If the government allows such transfer, the purchaser will replace the landowner-polluter as the obligor for the cleanup liability.41

15.2 Contractually?

 

See Section 15.1.

 

16 Is there anything else about contaminated land that you would bring to the attention of a potential purchaser of that land?

 

Although an investigation of land contamination is not a legal requirement, potential land purchasers, especially industrial zone and residential developers, are strongly advised to conduct environmental/land surveys of their target property prior to purchase, and to report the results of such surveys to the competent authorities if contamination is found. This practice is meant to prevent any potential confusion and liabilities should contamination be found later and determined to have been caused by the purchaser. 

 

1 Law No. 55/2014/QH13 on Environmental Protection, adopted by the National Assembly on 23 June 2014, and taking effect on 1 January 2015 (LEP).
2 LEP, Article 3(2).
3 LEP, Article 3(8).

4 LEP, Article 113(1). 5 LEP, Article 113(2). 6 LEP, Article 113(1). 

7 Decree No. 179/2013/ND-CP dated 14 November 2013 of the Government, Sanctions of Violations in the Field of Environmental Protection (“Decree No. 179”.)
8 LEP, Article 4(8); Article 59(4).
9 LEP, Article 112(3).

10 LEP, Article 111(2).
11 LEP, Articles 4(8) and 59(4).
12 Law No. 33/2005/QH11 on the Civil Code, adopted by the National Assembly on 14 June 2005, and effective 1 January 2006 (“Civil Code”).
13 Law No. 45/2013/QH13 on Land, adopted by the National Assembly on 29 November 2013, and effective 1 July 2014 (“Land Law”).
14 Please note that under Vietnamese law, no one is entitled to own land. Instead, the people, as represented by the government, are the actual owners of all the land in Vietnam. Therefore, although we do not revise this term, please always bear in mind that the correct term is “land user.”
15 Civil Code, Article 263.
16 LEP, Article 93(4).

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17 Decree No. 179, Article 55(5)(d). 18 LEP, Chapter X.
19 LEP, Article 106(1).
20 Decree No. 179, Article 4(3). 

21 LEP, Article 105(2).
22 Decree No. 179, Article 4(3)(c).
23 Law No. 15/1999/QH10 on the Penal Code, adopted by the National Assembly on 21 December 1999, and effective 1 July 2000, and amended by Law No. 37/2009/QH12 on Amendments of and Supplements to a Number of Provisions of the Penal Code (“Penal Code”).
24 Law No. 15/2012/QH13 on Administrative Sanction Proceedings, adopted by the National Assembly on 20 June 2012, and effective 1 July 2013 (“Law on Administrative Sanction Proceedings”, Articles 62 and 63).
25 USD1 = VND21,200 (source: https://www.vietcombank.com.vn/exchangerates/ on 17 June 2014).
26 Penal Code, Amended Article 182(1).
27 Penal Code, Amended Article 182(2).
28 Penal Code, Amended Article 182(3). 

29 Decree No. 179, Article 50.
30 Decree No. 179, Article 51.
31 Decree No. 179, Article 52.
32 Decree No. 179, Article 53.
33 Law on Administrative Proceedings, Article 65.2. 34 Penal Code, Article 11.

35 Penal Code, Article 13(1).
36 Penal Code, Article 16(1).
37 Law on Administrative Proceedings.
38 Decree No. 117, Articles 40, 41, 42, 43. 39 Civil Code, Article 624. 

40 Civil Code, Article 315(1). 41 Civil Code, Article 315(2). 

 

 

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