The Research Of Status-based Liability For The Remediation Of Polluted Plots

Polluted plots refer to plots that have been monitored and inspected by Environmental Protection Department to assure the presence of soil pollution and require the liability subject to carry out soil remediation.Liability for the repair of polluted plots is concerned with the public law,and the Environmental Protection Department is mainly responsible for making repair orders.Soil pollution is distinguished from the remedy of water and air pollution.Under the premise of ensuring that polluters are liable,soil remediation requires that those who have control the land bear corresponding liabilities.The concept of status-based liability can be used to improve the subject of repair and its related systems,which can make up for the drawback of behavior-based liability and improve the efficiency of soil remediation.At present,the Soil Pollution Control Law(Draft)(Second Draft),the Contaminated Soil Environmental Management Approach(Trial)and some local regulations all stipulate the liability for the repair of polluted plots,and the status-based liability in it has its own characteristics.Through the analysis of the current legislations in China,there are deficiencies in the current legislation that status-based liability is not uniform,yet specific,and lacking of practice.German Federal Soil Protection Act clarifies the status-based liability,and in the relevant case of the Federal Court established the view that the status-based liability person should not afford the cost as the measure of the economic benefits of the property owner as a whole;The "liable person" also includes the definition of responsibility for land owners,managers,users,etc.;the polluted plots relationship in the Soil and Groundwater Pollution Remediation Law in Taiwan Province includes land users other than polluters.The owners and managers are required to bear the cost.Through the analysis of the status-based liability of polluted plots in the legislation and practice of these three countries or regions,I hope to provide reference for the establishment of status-based liability for the repair of polluted plots in China’s legislation.Combining with our country’s reality,constructing the status-based liability of polluted plots remediation can start from the following aspects: First,we must clarify the constitutive requirement of status-based liability.The status-based liability subject includes the land users,managers,or other subject who has leadership over the land and does not need to consider whether the subject do it on purpose.Second,The scope of status-based liability commitment needs to be defined,and whether it has "expectation possibility" is the measurement standard.Third,combining the characteristics of soil remediation and management,it is necessary to pay attention to the extent and method of the status-based liability subject,as well as its claims and the convergence of environment public interests litigation.