Multi-departmental joint measures to clarify the principles of identification of persons responsible for soil pollution
It is expected to solve the problem that soil pollution cannot find the "master"
Core reading
The promulgation of the "Interim Measures for the Identification of Persons Responsible for Soil Pollution in Construction Land" and "Interim Measures for the Identification of Persons Responsible for Soil Pollution in Agricultural Lands" will provide a basis for identification of persons responsible for soil pollution when the person responsible for soil pollution is unclear or disputed.
The identification of persons responsible for soil pollution will not increase the burden on enterprises.
□ Our reporter Yan Jianrong
The soil for construction land and agricultural land is contaminated. How to find the responsible person when the responsible person is unclear or there is a dispute?
Recently, the Ministry of Ecology and Environment, the Ministry of Natural Resources, the Ministry of Agriculture and Rural Affairs and the National Forestry and Grass Administration jointly issued the "Interim Measures for the Identification of the Person Responsible for Soil Pollution in Construction Land" and the "Interim Measures for the Identification of the Person Responsible for Soil Pollution in Agricultural Land" (hereinafter referred to as the two "Measures" 》) Give clarification.
Among them, the "Interim Measures for the Identification of Persons Responsible for Soil Pollution in Construction Land" are jointly issued by the Ministry of Ecology and Environment and the Ministry of Natural Resources; the "Interim Measures for the Identification of Persons Responsible for Soil Pollution in Agricultural Land" are issued by the Ministry of Ecology and Environment, the Ministry of Natural Resources, the Ministry of Agriculture and Rural Affairs, and the State Released together with the Forest and Grass Bureau.
The relevant person in charge of the Department of Soil Ecology and Environment of the Ministry of Ecology and Environment pointed out that the promulgation of the two "Measures" will provide a basis for identification of the person responsible for soil pollution when the person responsible for soil pollution is unclear or disputed, so as to further implement the principle of responsibility for pollution. .
The person in charge stated that the relevant administrative department shall apply to the people's government at the same level for the funds needed to carry out the identification of the person responsible for soil pollution, and no fees will be charged to the applicant.
He said that the identification of persons responsible for soil pollution will not increase the burden on enterprises.
Refined rules for identifying responsible persons
The Soil Pollution Prevention and Control Law is the most important law for the prevention and control of soil pollution in my country.
This law stipulates that if the person responsible for soil pollution is unclear or there is a dispute, the agricultural land shall be recognized by the local people’s government’s agricultural, rural, forestry and grassland authorities in conjunction with the ecological environment and natural resources authorities, and the construction land shall be determined by the local people’s government’s ecological and environmental authorities in collaboration Recognized by the competent department of natural resources.
The determination method shall be formulated by the competent department of ecological environment under the State Council in conjunction with relevant departments.
The person in charge said that the formulation and implementation of the two "Measures" is based on the requirements of the Soil Pollution Prevention and Control Law.
"The two "Measures" are applicable to the identification of the person responsible for soil pollution carried out by the administrative department in the execution of supervision and management duties in accordance with the law, when the person responsible for the soil pollution of construction land and agricultural land is unclear or there is a dispute." He said , This is the focus of the current identification of the person responsible for soil pollution.
However, the two "Measures" do not involve the identification of persons responsible for civil disputes, and the identification of persons responsible for civil disputes should be determined in accordance with civil laws.
The person in charge said that the person responsible for soil pollution refers to the agricultural land or construction land caused by discharge, dumping, storage, landfill, leakage, spilling, seepage, loss, dispersal of pollutants or other toxic and harmful substances, etc. For soil pollution, it is necessary for units and individuals who are responsible for the control and restoration of soil pollution risks in accordance with the law.
The two "Measures" clarify that the determination of the person responsible for soil pollution of construction land shall be the responsibility of the municipal ecological and environmental authority in the districted city where the construction land is located, in conjunction with the natural resources authority at the same level; the determination of the person responsible for soil pollution of construction land in cities across districts shall be determined by The provincial-level competent department of ecological environment shall be responsible in conjunction with the competent department of natural resources at the same level.
Where the pollution of cultivated land is involved, the competent department of agriculture and rural areas shall identify the person responsible for soil pollution in conjunction with the competent departments of ecological environment and natural resources; if it involves pollution of forest land and grassland, the competent department of forestry and grass shall identify the person responsible for soil pollution in conjunction with the competent departments of ecological environment and natural resources; For other agricultural land, the competent departments of agriculture, rural areas, and forestry and grass shall, in accordance with the division of responsibilities, and the competent departments of ecological environment and natural resources identify the person responsible for soil pollution.
"It needs to be pointed out that, according to the Soil Pollution Prevention and Control Law, soil pollution refers to the fact that a certain substance enters the surface soil of the land due to human factors, causing changes in the chemical, physical, and biological characteristics of the soil, affecting the function and effective use of the soil, and harming it. Public health or damage to the ecological environment.” The person in charge emphasized that soil-related problems caused by non-human factors are not soil pollution.
In what circumstances are the persons responsible for soil pollution unclear or controversial?
The "Interim Measures for the Identification of Persons Responsible for Soil Pollution in Construction Land" stipulate that there are three situations, that is, there have been multiple units and individuals engaged in production and business activities on the construction land; the soil pollution of construction land has multiple sources and other laws, regulations and rules. situation.
The "Interim Measures for the Identification of Persons Responsible for Soil Pollution in Agricultural Land" stipulates that there have been multiple units and individuals engaged in production and business activities in or around agricultural land; soil pollution in agricultural land has multiple sources and other circumstances stipulated by laws, regulations and rules. .
Develop strict certification procedures
The two "Measures" propose that the person responsible for soil pollution has the obligation to implement soil pollution risk control and restoration.
If the person responsible for soil pollution cannot be identified, the owner of the right to use construction land shall implement soil pollution risk control and restoration.
The relevant person in charge of the Ministry of Ecology and Environment pointed out that soil pollution is a state. As long as the pollution state exists, the person responsible for soil pollution has the obligation to take responsibility.
The person in charge said that soil pollution risk control and restoration includes soil pollution status investigation and soil pollution risk assessment, risk management and control, restoration, risk management and control effect evaluation, restoration effect evaluation, post-stage management and other activities.
The two "Measures" also stipulate that units and individuals involved in soil pollution responsibility that have existed in construction land, agricultural land and their surrounding areas should assist in the investigation of soil pollution.
The State encourages units and individuals involved in soil pollution responsibilities, or between multiple units and individuals involved in soil pollution responsibilities, to negotiate and reach agreements on the responsibility and share of soil pollution.
The two "Measures" particularly emphasize that the state encourages any organization and individual to provide relevant clues as to the person responsible for soil pollution.
Encourage and support units and individuals involved in soil pollution responsibilities to implement soil pollution risk control and remediation voluntarily.
How to ensure the scientific and reasonable identification of the person responsible for soil pollution?
The relevant person in charge of the Ministry of Ecology and Environment said that the identification of the person responsible for soil pollution involves historical pollution investigations and the determination of pollution causality, which is a difficult issue that needs to be explored in practice.
He said that in order to ensure that the responsibility for soil pollution is scientifically and reasonably determined, the two "Measures" have established strict determination procedures.
According to the requirements of the two "Measures", the identification department can set up an investigation team to conduct an investigation, or designate or entrust an investigation agency to initiate an investigation.
The person in charge said that the main responsibility of the investigation team or the investigation agency is to investigate the pollution behavior and determine the causal relationship between the pollution behavior and soil pollution.
On the basis of the investigation, full-time personnel of the administrative agency and relevant experts set up a soil pollution responsible person identification committee to review the investigation report and issue an inspection opinion, including whether the facts presented in the investigation report are clear, whether the evidence is indeed sufficient, and whether the applicable law is correct ; Whether the investigation procedure is legal and compliant and whether the conclusion of the review is passed.
The person in charge said that the establishment of a soil pollution responsible person identification committee is conducive to fostering a stable identification team and improving the level of identification work.
Will not increase the burden on enterprises
After the two "Measures" were issued, some people were worried about whether the identification of responsible persons would increase the burden on enterprises.
In this regard, the relevant person in charge of the Ministry of Ecology and Environment has made it clear that it will not increase the burden on enterprises.
He said that in accordance with Article 70 of the Soil Pollution Prevention and Control Law, people's governments at all levels should strengthen the prevention and control of soil pollution and arrange necessary funds for matters including the soil pollution situation organized and implemented by the people's governments at all levels and their relevant departments. Census, monitoring, investigation and identification of persons responsible for soil pollution, risk assessment, risk management and control, restoration and other activities.
The person in charge pointed out that the two "Measures" clearly stated that the relevant administrative department shall apply to the people's government at the same level for the funds required to carry out the identification of the person responsible for soil pollution, and no fees shall be charged to the applicant.
How can units or individuals who intend to obtain land use rights avoid disputes over soil pollution liability as much as possible?
The person in charge said that the Soil Pollution Prevention and Control Law and supporting policies have made many institutional arrangements for the investigation of soil pollution conditions, including "all kinds of plans involving land use and construction projects that may cause soil pollution, and environmental impact assessments should be carried out in accordance with the law." "If the use is changed to residential, public management and public service land, the soil pollution status investigation shall be carried out in accordance with the regulations before the change." "The use of the land for production and operation of the key soil pollution supervision unit or the land use rights shall be recovered or transferred before the change. Land use rights holders conduct soil pollution investigations in accordance with regulations. The soil pollution investigation reports should be sent to the local people’s government real estate registration agency as real estate registration materials, and reported to the local people’s government’s ecological and environmental authorities for the record.” The person in charge said, “ Technical Guidelines for Environmental Impact Assessment-Soil Environment (HJ964-2018) also requires an investigation of the status quo of the soil environment.
The person in charge said that units or individuals who intend to obtain land use rights can learn about soil pollution status from relevant units in accordance with the law to avoid the risk of subsequent soil pollution liability disputes caused by possible soil pollution.
"After receiving the investigation report and review opinions from the Soil Pollution Responsible Person Recognition Committee, the administrative department will make a determination and inform the relevant parties together with the review opinions of the Soil Pollution Responsible Person Recognition Committee. The "Measures" stipulate that the person responsible for soil pollution should fully listen to the statements and defenses of the relevant parties during the investigation and review process and before making a decision.
If the facts, reasons or evidence put forward by the relevant parties are established, they shall be adopted.
If the person responsible for soil pollution or the owner of the right to use construction land is dissatisfied with the determination of the person responsible for soil pollution, he may apply for administrative reconsideration or file an administrative lawsuit according to law.