Recently, the Ministry of Ecology and Environment issued a notice on publicly soliciting opinions on the Measures to solicit public opinions. China Biodiversity Conservation and Green Development Foundation (CBCGDF) attached great importance to this, carefully organized research and discussion, and put forward recommendations for revision. The details are as follows:

First, increase the obligation of disclosure by the administrative department

Article 5 of the Measures, “The mechanism for reducing the disputes of responsible persons in the land transaction link” stipulates that “the risk of controlling and repairing soil pollution risks shall be implemented in the case where the soil pollution status is not known and the person responsible for soil pollution cannot be identified.” Such provision cannot fully guarantee the right to know of land use rights holders and fails to reflect the legal principals of fairness and justice. The recommendation is that “If the land use right holder does not understand the state of soil pollution, the competent department of natural resources shall inform the land use risk management and repair responsibility before the land use right holder obtains the land use right.”

Second, clarify the principle of commitment to share of responsibility

Article 7 of the Measures, the provision on responsibility negotiation is “cannot be agreed upon, and in principle share the responsibility equally.” If understood according to such expression, it is not feasible to share the responsibility equally on the premise of no consensus. The recommendation is that “Unable to determine the share of responsibility, in principle share the responsibility equally”.

Third, refine the provisions that encourage active management control and repair

In the “Measures”, the provisions of Article 9 on encouraging active management and control are relatively macroscopic, general, and lack of operability. As a regulation, specific policies and measures encouraged by the state should be specified in more details. For example, in the declaration of financial projects, the application of financial loans, the examination and approval of credit ratings and other aspects, the support and preferential policies are helpful to improve the initiative of voluntary repair.

Fourth, the initiation of the application for investigation should meet the requirements of the law

Article 10 of the Measures stipulates that the initiation of the application for investigation shall be based on “Measures for risk management and control after the soil pollution risk assessment…”. This expression lacks the pre-conditions and the recommendation is to “In accordance with the provisions of the Law on the Prevention and Control of Soil Pollution require risk management and control measures…”.

Fifth, the commitment mechanism for clear identification fees

Article 16 of the Measures stipulates the content of technical appraisal but avoids the mechanism for appraising costs and expenses. It is recommended to explicitly increase the regulations “The cost of identification and evaluation shall be borne by the responsible person of the soil pollution determined. If the responsible person cannot be determined, the land use right holder shall bear the responsibility”.

Sixth, the setting of the standardization committee

Article 22 of the Measures stipulates that the committee for the identification of persons responsible for soil pollution “shall be composed of the ecological environment meeting with the district level or above and the competent authorities, and the full-time staff and relevant experts of the competent departments of natural resources”. The full-time staff of the competent departments of ecological environment and natural resources suggested that they should not act as committee members and should remain objective and neutral. The revision recommendation is “The recognition committee consists of relevant experts, the number is singular, and the experts are randomly selected from the expert pool of the ecological environment authority and the natural resources authority”.

Seventh, it is recommended to provide exceptions for the failure to pass the review of the investigation report

Article 24 of the Measures stipulates the handling procedures for the failure to pass the investigation report but does not stipulate the identification of entities that have not passed the review. It is proposed to add a provision that “resubmission of investigation reports has still not passed the review, and the competent authorities of the ecological environment and the competent authorities of natural resources can identify those responsible for the inability to determine soil pollution.”

Eighth, the results of the identification of the person responsible for soil pollution should be disclosed to the public

Article 28 of the Measures stipulates that “After the end of the determination of the person responsible for soil pollution, the relevant department or agency designated by the local people’s government for the specific work of damage compensation for the ecological environment may be notified of the relevant situation”. In order to protect the public's right to know, it is recommended that the results of the identification of the person responsible for soil pollution be disclosed to the public, rather than being limited to specific departments or institutions.

CBCGDF will continue to follow up on the revision of the Measures and actively provide support and assistance.

Original Chinese article:

https://mp.weixin.qq.com/s/0Oxhc7-R0AaIjuE44rVs1w

By / Maggie