CHINA Law and Practice Contributed by: Rongliang Wu, Mei Wan, Qirong Huang and Xueqi Huang, Jin Mao Law Firm
12. Contaminated Land 12.1 Key Laws Governing Contaminated Land The core legal framework includes four key laws and regulations: • the Law of Prevention and Control of Environmen- tal Pollution Caused by Solid Waste (2020 revision); • Management Measures for the Soil Environment of Contaminated Land; • Management Measures for the Soil Environment of Industrial and Mining Land (Trial); and • Soil Environmental Quality, Soil Pollution Risk Control Standards for Construction Land (Trial) (GB 36600 – 2018). Among them, the Law of Prevention and Control of Environmental Pollution Caused by Solid Waste is the primary rule. It sets targeted prevention requirements based on waste type and harmfulness, covering industrial solid waste, domestic garbage, construction waste, agricultural solid waste and hazardous waste. Industrial solid waste and hazardous waste are sub- ject to stricter management and heavier penalties. Additionally, many local governments have released their own domestic garbage management regulations, which specify requirements for domestic garbage classification, collection, transportation and disposal. 12.2 Clearing Contaminated Land According to Article 45 of the Law of Prevention and Control of Environmental Pollution Caused by Solid Waste, the main entities responsible for solid waste pollution control are: • the person liable for solid waste pollution; • the land use right holder; and • local people’s governments and their relevant departments. The law consistently upholds the “polluter pays” principle. For environmental public interest lawsuits, defendants may assume remediation liability in two ways: organising and conducting environmental reme- diation themselves, or covering the remediation costs. If the polluters lack the ability or willingness to act,
they can fund a third party to carry out the soil reme- diation. 12.3 Determining Liability Based on the Interim Measures for the Determination of Persons Responsible for Soil Pollution on Construc- tion Land and the Interim Measures for the Determina- tion of Persons Responsible for Soil Pollution on Agri- cultural Land, the administrative liability of persons responsible for soil pollution can be determined. The foregoing two measures do not apply when determin- ing the person liable for soil pollution in civil disputes over soil pollution between responsible parties and individuals. Civil liability is determined on the basis of the “polluter pays” principle and the Civil Code in relation to torts provisions. 12.4 Proceedings Against Polluters Tort Liability Litigation According to Article 96 of the Law of Prevention and Control of Environmental Pollution Caused by Solid Waste, a person can bear tort liability. In civil disputes arising from solid waste pollution, the parties con- cerned may apply to the competent ecological and environmental authorities of the local people’s gov- ernment for mediation and processing or may bring a lawsuit to court. Public Interest Litigation According to Article 97 of the Law of Prevention and Control of Environmental Pollution Caused by Solid Waste, if solid waste pollution damages national interests or social public interests, procuratorates and NGOs may bring a lawsuit to court in accord- ance with the Environmental Protection Law, the Civil Procedure Law, the Administrative Procedure Law and other laws. As for organisations, according to Article 58 of the Environmental Protection Law, social organisations that meet certain conditions may bring a lawsuit to court against acts polluting the environment, damag- ing the ecology and damaging public interest. (For more detail, see 10.1 Civil Claims .)
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