Article 48 of the Soil and Underground Water Pollution Control Act (hereinafter called the Soil Pollution Act), promulgated on February 2, 2000, provides: “The provisions of Articles 7, 12, 13, 16 through 18, 32, 36, 38, and 41 are applicable to acts which pollute the soil and underground water occurring before the entry into force of this Act.” (hereafter called the provisions at issue). The provisions imposed a duty on the polluter to avoid spreading pollution and to clean up any contamination which persisted after the entry into force of the Soil Pollution Act, and prescribed penalties and enforcement measures for violating the abovementioned duty. The provisions at issue were applicable to polluters whose acts of pollution of soil or underground water occurred prior to the entry into force of the Act (hereafter called a pre-Act polluter). Such polluters are deemed liable for post-Act contamination. The intent of these provisions was to prescribe, as the regulatory object, a duty to clean up continuing contamination. They did not intend to distinguish pollution which occurred before, from that which occurred after, implementation of the Soil Pollution Act. Indeed, if the pollution ended before the Act was implemented, and no more pollution occurred after the Act came into force, then the provisions at issue do not apply. Therefore, they cannot be said to have violated the principle of prohibition against retroactive law. Also, Article 2, Section 12 of the Soil Pollution Act provides: “ A polluter means a person who has caused soil or underground water contamination by acts described below: (1) unlawful discharge, leaks, pumping, or disposal of a contaminant; (2) acting as a conduit for or tolerating an unlawful discharge, leak, pumping, or disposal of a contaminant; (3) failure to clean up contamination as required by law. When the alleged contamination is attributable to unlawful acts undertaken by the polluter (for example, Article 13 of Waste Management Act promulgated on July 26, 1974, Article 18 and Article 26 of Taiwan Implemention Rules for the same Act promulgated on May 21, 1975, repealed on February 1, 2002), there is no need to make transitional regulations or take other reasonable remedial measures to protect legal reliability.
Most acts of soil and underground water pollution were caused by agricultural, industrial, or business operations. The provisions at issue imposed a duty on the pre-Act polluter to clean up, to pay for the clean-up, and to shut down operations, because contamination persisted after enactment of the Soil Pollution Act. This is a restriction on people’s right to work and right to property guaranteed by Article 15 of the Constitution, and a restriction on freedom to carry on business implicit in that Article. Therefore, the Act must be made to accord with the principle of proportionality set out in Article 23.
The purpose of the enactment of the Soil Pollution Act was to clean up soil and underground water contamination, to ensure the continued use of soil and underground water, to improve the living environment, and to protect public health (refer to Article 1 of the Soil Pollution Act). The provisions at issue are aimed at properly disposing of the abovementioned soil and underground water contamination, eliminating any contamination which existed before, and persisted after, the Act, carrying out a complete clean-up, whilst avoiding any spreading of the contamination. The Act has a proper purpose, and the means employed are helpful to achieving the end.
If we do not make a pre-Act polluter responsible for existing pollution, the damage will be born by others or by the nation. This offends social justice and affects national finances. Therefore, the provisions at issue make a pre-Act polluter responsible for the clean-up in order to properly resolve the issue of soil and underground water contamination. There being no other less restrictive means to attain the same effect, the provisions at issue shall be regarded as a necessary means to achieve the legislative purpose.
Pre-Act contamination persisting after the Act will jeopardize public health and the environment. Effective resolution of the issue of contamination is both necessary and in the public interest. The contamination caused by the pre-Act polluter was illegal. By law, the polluter was responsible to a certain degree for eliminating the contamination. The provisions at issue imposed a duty to clean-up, and placed certain restrictions on a polluter’s right to property. In comparison with the public interest protected, this is not evidently excessive. Overall, it does not violate the principle of proportionality stated in Article 23 of the Constitution, nor does it violate the intent of Article 15 of the Constitution guaranteeing people’s right to work and right to property.
According to Article 2, Section 12 of the Soil Pollution Act, a polluter is any person who commits acts listed in the law. Therefore, the provisions at issue take a person committing the abovementioned acts as the regulatory object. Whether an assignee of the polluter should assume the clean-up duty is not a question within the regulatory scheme of the provisions at issue. Therefore, there is no question as to whether the provisions at issue violate the principle of equality by failing to distinguish if the duty to clean-up falls on the polluter or an assignee.
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＊ Translated by Huai-Ching TSAI.