Construction Of Legal System For Risk Management And Control In The Development And Utilization Of Urban Contaminated Sites

Since the 1990s,China’s economic development and structural adjustment have caused the withdrawal of heavily polluting enterprises such as chemical and smelting plants from the core areas of the city,which provides a good opportunity for both the city’s industrial transformation and advancement as well as the improvement of the urban environment;however,it also causes a variety of problems,the worst of which is dereliction of the contaminated sites.According to the statistics,China has more than500,000 potential contaminated sites,whose disuse is impractical for a country already lacking urban land resources.Therefore,the reuse of these sites becomes essential task Chinese cities have to carry out.However,the inefficient risk management and control in the process of urban contaminated site reuse has caused some major incidents,such as the case of poisonous land at the Changzhou Foreign Language School.Developed countries pay high attention to risk management and control in the process of contaminated site reuse,which involves the formulation of risk management and control programs based on considerations such as where risk lies,how risk spreads and what risk may affect,combined with risk evaluation as well as the guidance of relevant laws,regulations and policies.The above-mentioned programs are designed for alleviating or eliminating potential harm to humans and the ecological environment through cost and efficiency analysis to find the acceptable risk level and measures to be taken.Risk management and control in the process of development and utilization of contaminated sites is the leading thinking of developed countries in dealing with the problem of contaminated sites.It specifically refers to the risk sources,exposure channels and risk receptors of contaminated sites.According to the results of soil environmental risk assessment and in accordance with relevant laws,regulations and policy standards,risk management and control programs are formulated,cost and benefit analysis are conducted,and acceptable wind is determined Risk level and risk control measures.Its ultimate purpose is to reduce or eliminate the potential harm caused by soil pollution to human body and ecological environment,and ensure environmental safety.In fact,China has given priority to risk management and control of urban polluted sites since 2004,when the notice on effectively doing the environmental pollution prevention and control work in the process of enterprise relocation was issued.After that,China has issued a list of laws,regulations and policy documents to regulate risk management and control of urban polluted sites,including the Interim Measures for soil environmental management of pollution sites in 2011,the notice on ensuring the environmental safety of industrial enterprise site redevelopment in 2012,Technical guidelines for site environmental investigation(HJ 25.1-2014),technical guidelines for site environmental monitoring(HJ 25.2-2014),technical guidelines for risk assessment of contaminated sites(HJ 25.3-2014),technical guidelines for soil remediation of contaminated sites(HJ 25.4-2014)and terminology of contaminated sites(HJ 682-2014)in 2014.The action plan for soil pollution prevention and control issued in 2016 makes "prevention first,protection priority,risk management and control" China’s general principle of soil pollution prevention and control.The measures for the management of soil environment of contaminated land in 2017,an important regulation system for the whole process management of industrial and mining enterprises’ contaminated land stress the importance of management and control.In August 2018,China officially promulgated its first special regulation on soil pollution,The law of the People’s Republic of China on the prevention and control of soil pollution,which embodies the basic principle of "risk management and control" in Articles 3,9,12 and 35 as well as the whole chapter IV.Although central and local governments have formulated a series of laws,regulations and technical specifications,they are far from complete.Firstly,there is a lack of supporting laws related to risk management and control technology,such as the source and guarantee mechanism of repair funds,as well as laws regarding the supervision and management system of soil removal from the contaminated land,especially the system of using market means to repair contaminated land.Secondly,China hasn’t established an efficient legal accountability mechanism to specify investigating responsibility and holding accountability.Thirdly,the technical system of risk management and control of urban polluted sites in China is not complete,such as the system of soil quality standards.Fourthly,the capital system of risk management and control consists of abstract principles and objectives for the Soil Remediation Fund,which is difficult to carry out.On the other hand,the model of risk management and control on soil pollution also plays a decisive role in the level of risks of contaminated plots.Under a governmentdominated model,the governance capacity plays a key role in managing and controlling risks.In China,the overlap of different departments’ responsibilities usually causes evasion of responsibilities among them.Public involvement is absent from the whole process of environmental risk evaluation and reuse of polluted sites.Both the behind closed doors decision-making and the undisclosed information on the environment further increase the spread of environmental risk resulting from the polluted sites.Therefore,a diversified governance model involving the equal participation of the government,social organizations,enterprises and citizens is promoted in this paper.In this model,the government still plays a leading role in the treatment of the polluted sites,which requires not only the establishment of a supervision mechanism specifying the responsibilities of different government departments and how these departments cooperate with one another,but also the government assuming responsibility for the treatment and restoration of polluted sites.The enterprises accountable to the contamination of land should take the responsibilities related to soil pollution status investigation,soil pollution risk assessment,risk management and control,restoration of contaminated land,evaluation of effectiveness of risk management and control and restoration,later stage management and others.When considering the responsibility of the relevant persons in the treatment and restoration of contaminated lands,the principle of no fault liability should be applied.In the meantime,mechanisms such as national information and data sharing on soil environment,disclosure of information on major polluting units,public supervision and participation in decision-making,public interest litigation and legal aid should be established to encourage the active involvement of enterprises,social organizations and individuals in the risk management and control of polluted sites to fulfill people’s demand for a safe environment.The investigation of foreign systems such as the super fund system and the brown field utilization and development system shows that the major developed countries in the West have accumulated some experience in risk management and control of the polluted sites throughout the industrial revolution process.Their comparatively complete system including health risk assessment and ecological risk assessment methods,the target value for restoration of contaminated land and the classification of contaminated sites is inspiring for China.Firstly,a specific law is imperative.Secondly,the system of risk management and control consisting of the list of contaminated land,identification and registration of polluted sites and others should be complete.Thirdly,a transparent system about soil environment standards should be established.Fourthly,a fund guarantee system that matches the governance responsibility should be built.Finally,a diversified governance system led by the government is needed.Based on the research mentioned above,this paper will illustrate the risk management and control system for the reuse of urban polluted sites with "risk management and control" as the central task in the treatment of polluted sites.In the newly issued law on the prevention and control of soil pollution,the term "risk management and control" has been referred to 92 times.Chapter four of the law has a detailed description of the risk management and control and soil remediation.A series of system of risk management and control and remediation in the reuse of urban polluted sites illustrated in this paper will be a supplement to and improvement upon the law.Specifically speaking,systems like risk investigation system,risk assessment system of polluted sites restoration,(potential)risk list system of polluted sites and risk management and control system should be established in the stage of risk identification and assessment of urban pollution sites.Systems such as the risk management and restoration directory system,the responsible person system on risk management and control and restoration,the system on governance and the third-party supervision,and the system for classification management of polluted sites,among others,should be established in the phase of risk management and restoration.The corresponding supporting systems include the classification standard system of soil pollution,the risk assessment system of contaminated sites based on localized parameters,the soil safety threshold system for the protection of human health and groundwater environment,and the groundwater safety utilization threshold system based on different exposure scenarios.Finally,the legal system of risk management and control of the reuse of polluted sites is applied in Guangzhou for verification of its feasibility.The application proves that the diversified governance model promoted in this paper is feasible and the system constructed in this model is also operable.