Study On China Contaminated Site Remediation Liability System

Contaminated site is usually caused by human industrial activities, and is confirmed to have produced pollution though scientific assessments, and threatens or do substantial harms to human health, flora and fauna directly or indirectly, and is unable to make full use of site soil. Remediation responsibility is the secondary obligation of the legal subject of liability to assume the restored area to be functional state again and harmonize with the relevant ecosystem. Remediation responsibility contains the dual attributes of public law and social law. In public law level, remediation responsibility is legal liability, relying on the strict enforcement of the executive; in social law level, however, the subject of remediation responsibility is malleable, requiring the all the contamination groups to participate.There exists many problems in China. Firstly, the remediation responsibility of contaminated site is stipulated scatteredly in the Land Management Law and Solid Waste Pollution Prevention Law and administrative normative documents, these norms are under laws in legal hierarchy which are lack of legal force and ignore the groundwater protection; secondly, on the one hand, China has adopted the single polluter pay’s principle, so it is impossible to give legal advice when the responsible person is unknown, on the other hand, the successor is required to take the liability which is unfair for the “innocent person”; thirdly, China’s environmental protection departments do not have actual authority and they enforce the law laxly, which creates hotbed for malicious remediation; fourthly, local governments are exploring the “beneficiary pays”, a special fund, insurance and other diversified and marketized fund raising system, but the relevant responsible person do not participate actively, and social system has not yet formed; on other systems, China’s standard remediation system, survey system, risk assessment system have not been formed, which makes the investigation for remediation responsible very difficult.US Superfund Law stipulates “polluter pay’s principle”, the potential responsible person assumes retroactive, strict, joint liability, and sets up a special fund, even though widely adopted by lots of countries, there is chain litigation and problem of sorts caused by it; based on Small-scale Corporate Responsibility Alleviation and Brownfields Revitalization Act, state and local government are granted with greater power, which encourages community participation; the United Kingdom implements ladder accountable system, the first step is the polluter, the second step is land owner, which encourages private individual to provide remediation funds; German federal and every state almost all have developed separate legislation for soil protection, and the law is complete, and stipulated retroactive system; Taiwan implements synthetical legislation model for soil and groundwater, who also carries out severe penalty and owns complete fund system. These countries and regions give us some enlightenments: First, a sound legal system is the foundation for investigating remediation responsibility; second, the "polluter-pays principle" does not identify the responsible so effectively; third, the government fining polluter severely can be a strong guarantee; fourth, remediation fund source tends to socialization.From the lessons and experiences of the countries and regions above, and combined with China’s reality, I suggest : firstly, to integrate the two elements of the soil and groundwater in the future laws about contaminated site; secondly, carry out beneficiary-and-polluter-pay principle, give severe penalty to specific polluter, and take social law solving concept for those whose responsible person is not identified, and allocate polluter, the site associates, local government and successor reasonably to avoid hurting the interests of "innocent person"; thirdly, on public law governance level, provide environmental protection department with strong law enforcement authority, set severe penalty principle; fourthly, on the level of social law governance, establish a diversified financing system and the same profession fund system to encourage the participation of diverse social subjects.