Breaking news: Producers and sellers of substandard fertilizers and pesticides will be held liable for soil contamination!

Release Date:

2019-09-20

New regulations
　　On September 17, the Ministry of Ecology and Environment released the “Measures for Determining Liability for Soil Pollution on Agricultural Land (Trial) (Draft for Public Comment),” inviting comments and suggestions from all stakeholders. This marks the introduction of new provisions addressing the long-standing issue of unclear responsibility for soil pollution on agricultural land.
　　Illegally producing, selling, or using substandard… Pesticide 、 Fertilizer Agricultural inputs that cause soil contamination shall be held accountable, and measures for soil pollution prevention and remediation must be implemented in accordance with applicable regulations. Due to the use of… Pesticide 、 Fertilizer Individual farmers whose agricultural inputs have caused soil contamination on farmland shall not be held liable.
　　The Soil Pollution Prevention and Control Law of the People’s Republic of China stipulates: “Anyone who causes personal injury or property damage through soil pollution shall bear tort liability in accordance with the law.” However, due to the lagged and cumulative nature of soil contamination, it is often the case that by the time the pollution is discovered, the responsible party can no longer be identified. This situation is particularly pronounced in agricultural settings; for example, when an out-of‑region operator leases a piece of land for several years, by the time contamination is detected after the lease has expired, the lessee has long since departed.
　　How is the responsible party for soil contamination determined?
　　To further standardize the identification of responsible parties for agricultural land soil contamination, the Ministry of Ecology and Environment has drafted the “Measures for the Identification of Responsible Parties for Agricultural Land Soil Contamination (Trial) (Draft for Public Comment)” (hereinafter referred to as the “Measures”), which was made public on September 17. The Measures will enter into force on July 1, 2020.
　　In cases where the party responsible for soil contamination is unclear or disputed, the Measures stipulate that for agricultural land requiring risk control measures or remediation, if there are obvious sources of pollution in the surrounding area discharging pollutants, or if toxic and hazardous substances or solid waste have been dumped, stockpiled, or buried, or if substandard materials have been applied… Pesticide 、 Fertilizer In cases involving agricultural inputs, the agricultural and rural affairs and forestry and grassland authorities of local people’s governments at or above the county level, in coordination with relevant departments, shall formulate an annual work plan and initiate the identification of persons responsible for soil contamination on agricultural land.
　　When any of the following circumstances occur, a causal relationship between the polluting activity and soil contamination may be established:
　　(1) Characteristic pollutants are detected in agricultural land soils at concentrations exceeding the limits set by national, local, or industry standards, or surpassing the background levels in the reference area;
　　(2) The existence of a party liable for soil contamination entails the discharge or addition of the contaminant to agricultural land soils;
　　(3) Soil from contaminated agricultural land can be isolated from the influence of other identical or similar sources of contamination;
　　(4) Soil from contaminated agricultural land can be screened to exclude the influence of non‑anthropogenic factors, such as high background levels, climate change, pests and diseases, and natural disasters.
　　Moreover, where no causal relationship exists or can be established, where the specific identity of the responsible party cannot be ascertained due to escape from the scene or insufficient information, or where the entities and individuals liable for soil contamination have ceased to exist—resulting in a lack of sufficient evidence—the opinion that the responsible party cannot be determined may be submitted.
　　Who will be affected by the new regulations?
　　The Measures stipulate that the identification of persons responsible for soil contamination on agricultural land primarily applies to cultivated land, orchards, forestland, and grassland.
　　In the course of determination, the competent agricultural and rural affairs authority shall provide information on the contaminated agricultural land area and its surrounding areas. Pesticide 、 Fertilizer Information and materials related to the use of agricultural inputs and relevant administrative penalties; Pesticide 、 Fertilizer Producers and operators shall provide information and documentation, including records of the production and sale of such agricultural inputs; agricultural production and business organizations shall provide… Pesticide 、 Fertilizer Information and records, such as those pertaining to the use of agricultural inputs.
　　For the purposes of these Measures, “the party responsible for soil contamination of agricultural land” refers to:
　　Illegally producing and selling substandard products Pesticide 、 Fertilizer Producers and operators of agricultural inputs that have caused soil contamination on agricultural land, who are required by law to assume responsibility for risk control and remediation;
　　Illegally using substandard… Pesticide 、 Fertilizer Agricultural production and business entities that, by using agricultural inputs, have caused soil contamination of agricultural land and are required by law to assume responsibility for risk control and remediation;
　　Following the entry into force of the Environmental Protection Law of the People’s Republic of China (Trial Implementation) on September 13, 1979, any entity or individual that, by discharging, dumping, stockpiling, landfilling, leaking, scattering, seeping, losing, or dispersing pollutants or other toxic and hazardous substances, causes soil contamination of agricultural land shall, in accordance with the law, bear responsibility for risk control and remediation.
　　It is worth noting that, considering the use by individual farmers… Pesticide 、 Fertilizer Soil contamination of agricultural land caused by agricultural inputs does not constitute a pressing issue at present; moreover, in most cases, holding individual farmers responsible for the risk management or remediation of such soil contamination is neither economically nor technically feasible. The Measures do not address situations arising from the use of… Pesticide 、 Fertilizer Individual farmers whose agricultural inputs have caused soil contamination on farmland shall be included within the scope of liability determination. However, if such farmers cause soil contamination through other activities—such as stockpiling hazardous waste on farmland—they likewise shall be subject to liability determination.
　　Measures for Determining the Responsible Parties for Soil Pollution on Agricultural Land (Trial) (Draft for Public Comment)
　　Table of Contents
　　Chapter I General Provisions
　　Chapter 2: Initiation and Investigation
　　Chapter 3 Review and Determination
　　Chapter Four: Other Matters
　　Chapter V Supplementary Provisions
　　Chapter I General Provisions
　　Article 1 [Purpose and Legal Basis] In order to standardize the identification of persons liable for soil pollution on agricultural land, these Measures are formulated in accordance with the Environmental Protection Law of the People’s Republic of China, the Soil Pollution Prevention and Control Law of the People’s Republic of China, and other relevant laws.
　　Article 2 [Scope of Application] These Measures apply to the identification of responsible parties for soil contamination on agricultural land where such parties are either unclear or subject to dispute, conducted by the competent authorities for agriculture and rural affairs and forestry and grassland in coordination with the competent authorities for ecological environment and natural resources, in the course of lawfully performing their administrative regulatory duties.
　　The determination of the party responsible for soil contamination on agricultural land, as referred to in these Measures, applies primarily to cultivated land, orchards, forestland, and grassland.
　　Article 3 [Person Responsible] For the purposes of these Measures, the “person responsible for agricultural land soil pollution” refers to:
　　(1) Following the entry into force on September 13, 1979, of the Environmental Protection Law of the People’s Republic of China (Trial Implementation), any entity or individual that, by discharging, dumping, stockpiling, landfilling, leaking, scattering, seeping, losing, or dispersing pollutants or other toxic and hazardous substances, causes soil contamination of agricultural land shall, in accordance with the law, bear responsibility for risk control and remediation.
　　(2) Illegally producing or selling substandard products Pesticide 、 Fertilizer Producers and operators of agricultural inputs that have caused soil contamination on agricultural land shall, in accordance with the law, assume responsibility for risk control and remediation.
　　(3) Illegally using substandard… Pesticide 、 Fertilizer Agricultural production and business entities that, by using agricultural inputs, have caused soil contamination of agricultural land and are required by law to assume responsibility for risk control and remediation.
　　Units and individuals bearing liability for soil pollution refer to those who, by engaging in the conduct specified in the preceding paragraph, may cause soil contamination.
　　Article 4 [Jurisdiction for Determination] The determination of the responsible party shall be undertaken by the agricultural and rural affairs, forestry and grassland authorities of the local people’s government at or above the county level where the farmland is located, in coordination with the ecological environment and natural resources authorities.
　　In cases where jurisdiction is disputed, the matter shall be submitted to the next higher administrative authority for consultation and designation of jurisdiction.
　　Article 5 [Division of Responsibilities for Determination] The departments in charge of agriculture and rural affairs, as well as forestry and grassland, shall take the lead in organizing the determination of the parties responsible for soil pollution on agricultural land.
　　For cultivated land, the competent department of agriculture and rural affairs shall take the lead in identifying the party responsible for soil pollution; for forestland and grassland, the competent department of forestry and grassland shall take the lead in identifying the party responsible for soil pollution; and for orchards, the competent departments of agriculture and rural affairs and forestry and grassland shall, in accordance with their respective responsibilities, jointly take the lead in identifying the party responsible for soil pollution.
　　Article 6 [Obligation to Assist in Soil Pollution Surveys] Agricultural land and any entities or individuals that, in the past, were responsible for soil pollution in the surrounding areas shall be obligated to assist in conducting soil pollution surveys.
　　Article 7 [Encouragement of Negotiation on Liability Shares] Parties, including multiple entities and individuals, involved in soil pollution liability are encouraged to reach agreements on the allocation of liability and the respective shares thereof, with such shares determined according to each party’s degree of contribution to the soil contamination. In cases where no consensus can be reached, liability shall, in principle, be shared equally.
　　Where, due to disputes over liability for soil pollution, risks of soil contamination are not promptly controlled, resulting in harm to persons or property, or causing damage to national interests or the public interest, the party responsible for the soil pollution shall bear the corresponding legal liabilities.
　　Article 8 [Encouragement of Clue Reporting] Any organization or individual is encouraged to provide relevant leads pertaining to the identification of those responsible for soil pollution.
　　The competent departments for agriculture and rural affairs, as well as forestry and grassland, shall, in coordination with the departments responsible for ecological environment and natural resources, publicly announce channels for reporting leads. Rewards shall be granted for substantiated reports submitted under real names.
　　Article 9 [Encouragement of Proactive Risk Control and Remediation] The State encourages and supports entities and individuals bearing responsibility for soil pollution to voluntarily undertake risk control and remediation measures.
　　Chapter 2: Initiation and Investigation
　　Article 10 [Initiation on Official Authority] Where the party responsible for soil contamination is unclear or there is a dispute, and where risk control measures or remediation are required for agricultural land, if any of the following circumstances applies, the agricultural and rural affairs and forestry and grassland authorities of the people’s governments at or above the county level, in conjunction with relevant departments, shall formulate an annual work plan and initiate the determination of the party responsible for soil contamination on agricultural land:
　　(1) Those with obvious pollution source emissions in the surrounding area;
　　(2) Those who dump, stockpile, or landfill toxic and hazardous substances or solid waste;
　　(3) Addition of nonconforming materials Pesticide 、 Fertilizer For agricultural inputs.
　　When rural collective economic organizations and their members, specialized farmer cooperatives, and other agricultural production and business entities file complaints or reports of agricultural land soil contamination, and such cases are verified to meet the aforementioned criteria, the identification of the party responsible for the soil contamination shall be promptly initiated.
　　Article 11 [Organization of Investigations] Within ten working days from the date of initiation of the determination, the competent departments for agriculture and rural affairs and for forestry and grassland, in conjunction with the competent departments for ecology and environment and for natural resources, may establish an investigation team to conduct the investigation, or may designate or entrust an investigative agency to carry out the investigation.
　　Investigation agencies shall possess the specialized technical expertise required for determining liability for soil contamination. Such agencies and their personnel shall have no direct vested interest in the agricultural land under investigation or in any entities or individuals implicated in soil contamination liability.
　　The competent agricultural and rural affairs authorities shall provide information on the contaminated agricultural land areas and their surrounding regions. Pesticide 、 Fertilizer Information and materials relating to the use of agricultural inputs, the scale of livestock farming, and relevant administrative penalties; the forestry and grassland authorities shall provide information and materials concerning administrative penalties imposed during the utilization of forestland and grassland; the ecological and environmental authorities shall furnish information and materials on emergency response measures for historical pollution incidents affecting agricultural land and its surrounding areas, as well as on administrative penalties imposed on operating entities and individuals for pollution-related violations; the natural resources authorities shall supply information and materials on the development and utilization of agricultural land and adjacent land, mineral resources, and other resources, together with details of any related administrative penalties, geochemical baseline surveys, and hydrogeological data.
　　Units and individuals that have engaged in production or business activities on agricultural land and its surrounding areas shall provide information and documentation pertaining to pollution incidents, pollutant emissions, and production processes. Pesticide 、 Fertilizer Producers and operators shall provide information and documentation, including records of the production and sale of such agricultural inputs; agricultural production and business organizations shall provide… Pesticide 、 Fertilizer Information and records, such as those pertaining to the use of agricultural inputs.
　　Article 12 [Duties of the Investigation Team or Investigative Agency] The investigation team or investigative agency shall perform the following duties:
　　(1) Investigate the polluting activities of entities and individuals responsible for soil contamination;
　　(2) Investigate the causal relationship between polluting activities and soil contamination on agricultural land;
　　(3) Identify the party responsible for soil contamination;
　　(4) Submit the responsible party’s investigation report.
　　Article 13 [Provisions on Cooperation with Investigations] Investigators shall have the authority to inquire of relevant entities and individuals regarding matters related to soil pollution and to require them to provide pertinent documents and materials.
　　Article 14 [Technical Appraisal] When conducting an investigation, if technical appraisal is required, the competent departments of agriculture and rural affairs and of forestry and grassland may, in conjunction with the competent departments of ecology and environment and of natural resources, designate or entrust relevant technical institutions to carry out technical assessments and appraisals for the determination of the party responsible for soil contamination.
　　Article 15 [Determination of Causation] Where the following conditions are met, a causal relationship between the polluting act and soil contamination may be established:
　　(1) Characteristic pollutants are detected in agricultural land soils at concentrations exceeding the limits set by national, local, or industry standards, or surpassing the background levels in the reference area;
　　(2) The existence of a party liable for soil contamination entails the discharge or addition of the contaminant to agricultural land soils;
　　(3) Soil from contaminated agricultural land can be isolated from the influence of other identical or similar sources of contamination;
　　(4) Soil from contaminated agricultural land can be screened to exclude the influence of non‑anthropogenic factors, such as high background levels, climate change, pests and diseases, and natural disasters.
　　Article 16 [Circumstances Where the Responsible Party Cannot Be Determined] Where any of the following circumstances applies, an opinion stating that the responsible party cannot be determined may be submitted:
　　(1) No causal relationship exists, or it cannot be established;
　　(2) The specific identity of the responsible party cannot be verified due to reasons such as fleeing the scene or incomplete information;
　　(3) Where the entities and individuals liable for soil contamination have ceased to exist, resulting in insufficient evidence.
　　Article 17 [Investigation Period] The investigation team or investigating agency shall submit the investigation report within 90 working days from the date the investigation is initiated. In cases where the circumstances are complex and the determination cannot be completed within the prescribed period, an appropriate extension may be granted upon approval by the competent authorities for agriculture and rural affairs and for forestry and grassland; however, such extension shall, in principle, not exceed 30 working days.
　　Time spent on monitoring, technical assessments, appraisals, and the like shall not be counted toward the investigation period.
　　Article 18 [Contents of the Investigation Report] The investigation report shall include the following contents:
　　(1) Overview of Agricultural Land and Pollution Status;
　　(II) Overview of the Investigation Process;
　　(3) Opinion on the determination of responsible parties;
　　(4) Legal and regulatory provisions and technical basis;
　　(5) Other Matters.
　　The investigation report shall be accompanied by relevant evidentiary materials.
　　Chapter 3 Review and Determination
　　Article 19 [Review of Investigation Report] The investigation team or the investigating agency shall submit the investigation report to the Soil Pollution Liability Determination Committee for review.
　　The identification committee shall be composed of full-time staff from the agricultural and rural affairs, forestry and grassland authorities, together with the ecological environment and natural resources authorities, at or above the county level, as well as relevant experts.
　　The Determination Committee shall, within fifteen working days from the date of receipt of the investigation report, conduct a review and issue its review opinion. The review opinion shall include the following contents:
　　(1) Whether the facts set forth in the investigation report are clear, whether the evidence is solid and sufficient, and whether the applicable laws have been correctly applied;
　　(2) Whether the investigative procedures were lawful and compliant.
　　The Review Committee shall, based on the review opinions, render a conclusion as to whether the review has been passed.
　　Article 20 [Handling of Approved Reviews] Where the investigation report has been approved upon review, the Determination Committee shall submit the investigation report and its review opinions to the competent authorities for agriculture and rural affairs, as well as for forestry and grassland.
　　Article 21 [Handling of Cases Where the Review Is Not Approved] If the investigation report fails to pass review, it shall be returned to the investigation team or the investigating agency for supplementary investigation or a re‑investigation. The investigation team or the investigating agency shall resubmit the investigation report within thirty working days from the date of its return.
　　Article 22 [Approval of Investigation Reports] The competent departments for agriculture and rural affairs, as well as those for forestry and grassland, shall, within fifteen working days from the date of receipt of the investigation report and the review opinions, issue a formal reply in coordination with the competent departments for ecological environment and natural resources. In exceptional circumstances, the time limit for issuing such a reply may be appropriately extended, but the extension shall not exceed thirty working days.
　　Upon service of the reply to the party responsible for soil contamination, the determination of responsibility shall be deemed concluded.
　　Chapter Four: Other Matters
　　Article 23 [Statement and Defense] During the investigation and review of persons liable for soil pollution, as well as prior to the issuance of a formal decision, due consideration shall be given to the statements and defenses submitted by rural collective economic organizations and their members, farmer specialized cooperatives and other agricultural production and business entities, and any entities or individuals bearing responsibility for soil pollution. If the facts, grounds, or evidence presented by such parties are substantiated, they shall be accepted.
　　Article 24 [Liability] The party responsible for soil pollution shall, in accordance with the approved plan and pursuant to the provisions of the Soil Pollution Prevention and Control Law of the People’s Republic of China, implement soil pollution risk control and remediation measures and bear the relevant costs in accordance with the law.
　　If the party responsible for soil contamination disagrees with the determination and approval, they may, in accordance with the law, apply for administrative reconsideration or file an administrative lawsuit.
　　Article 25 [Filing and Preservation] Materials pertaining to cases concluded upon determination of responsibility shall be filed and archived in accordance with the requirements of one case per file, complete documentation, and fully compliant procedures. The retention period for archival materials shall be 30 years.
　　Upon conclusion of the determination of the party responsible for soil contamination, the relevant circumstances may be communicated to the department or agency designated by the local people’s government to oversee the specific implementation of ecological and environmental damage compensation.
　　Article 26 [Circumstances for Termination] The recognition procedure may be terminated if any of the following circumstances applies:
　　(1) Where the parties responsible for soil contamination have reached a consensus through consultation;
　　(2) During the process of determining the party liable for soil contamination, where liability has been confirmed through judicial proceedings such as litigation or arbitration.
　　Article 27 [Disciplinary Requirements] The relevant entities and personnel involved in investigation, review, and determination shall act with integrity and impartiality, and perform their duties diligently. They shall not disclose any related information without authorization, nor shall they seek personal gain. If any acts of favoritism or fraud are discovered, the responsible parties shall be held accountable in accordance with the law.
　　Chapter V Supplementary Provisions
　　Article 28 [Circumstances Where the Responsible Party Is Unclear or Disputed] Circumstances in which the responsible party is unclear or disputed include:
　　(1) Where multiple pollution sources have previously existed in the vicinity of agricultural land;
　　(2) Where multiple agricultural production and operation entities are present on agricultural land;
　　(3) Soil contamination on agricultural land stems from multiple sources;
　　(4) Used by agricultural production and business entities Pesticide 、 Fertilizer Involving multiple producers and operators;
　　(5) Other circumstances.
　　Article 29 [Non-conforming] Pesticide 、 Fertilizer Definition: Nonconforming Pesticide 、 Fertilizer refers to violating the Pesticide the Regulations on Administration, the Measures for the Administration of Fertilizer Registration, and other relevant provisions Pesticide 、 Fertilizer 。
　　Article 30 [Formulation of Implementing Rules] The agricultural and rural affairs and forestry and grassland authorities of provinces (autonomous regions, municipalities directly under the central government) shall, in conjunction with the ecological environment and natural resources authorities, formulate specific implementing rules in accordance with these Measures and taking into account local conditions, and submit such rules for record with the Ministry of Agriculture and Rural Affairs, the National Forestry and Grassland Administration, the Ministry of Ecology and Environment, and the Ministry of Natural Resources.
　　Article 31 [Funding for Determination] The competent departments of agriculture and rural affairs, forestry and grassland, ecological environment, and natural resources that undertake the determination of responsible parties for soil pollution on agricultural land shall, in accordance with Article 70 of the Soil Pollution Prevention and Control Law of the People’s Republic of China, apply to the people’s government at the same level for funding to cover the costs of such determinations.
　　Article 32 [Effective Date] These Measures shall come into force on July 1, 2020.