CBCGDF Legal Work Committee Submitted to the Ministry of Ecology and Environment Recommendations for the “Notice on Strengthening the Management of Soil Pollution Prevention and Control Projects (Draft for Soliciting Comments)”

Recently, the Ministry of Ecology and Environment issued “Notice on Strengthening the Management of Soil Pollution Prevention and Control Projects (Draft Soliciting Comments)” (hereinafter referred to as the “Notice”), soliciting opinions from the public.

After careful discussion and research, the China Biodiversity Conservation and Green Development Foundation (CBCGDF) Legal Work Committee put forward six amendment recommendations, which were submitted to the Ministry of Ecology and Environment by mail on July 17.

I. Clearly use the “Soil Pollution Prevention and Control Law” as the basis for the higher law

The “Measures for the Management of Special Funds for the Prevention and Control of Soil Pollution” is only a regulation of the Ministry of Finance, and it is recommended that the “Notice” include basis for higher-level laws. In fact, the “Soil Pollution Prevention Law” has clear legal provisions on the risk control and restoration of soil pollution.

II. Clarify exceptions for project types and adjust the project cycle

1. The exceptions for project types include at least the following two aspects:

(1) The types of projects covered by the “Notice” should not include: soil pollution risk control and restoration with a clear person responsible for soil pollution, because of the “Principle of Pollution Responsibility” clearly stated in the Soil Pollution Prevention Law, the central government should not support such projects.

(2) Generally speaking, the control and restoration of soil pollution caused by sudden major environmental pollution incidents should be evaluated to determine whether there is a clear responsible person. Judging from the situation in practice, there are generally those responsible for pollution. For example, at the end of March 2020, Luming Mining Co., Ltd. caused a major environmental pollution accident caused by the sudden leakage of molybdenum tailings. For this kind of soil pollution caused by sudden and major environmental pollution incidents, the funds spent on restoration should no longer be borne by the central and local finances, it should no longer be submitted as a soil pollution prevention and control project, the “Pollution Responsibility Principle” also needs to be implemented.

2. Make appropriate adjustments to the project cycle

The current “Notice” stipulates: “The period of risk control and restoration projects generally does not exceed three years, the period of projects involving groundwater risk management and control, restoration projects and safe use of agricultural land generally does not exceed five years, the period of other projects generally does not exceed two years. “

But in practice, (1) Involving risk management, control and restoration projects, the adjustment cycle needs to be adjusted. In principle, it should not exceed 5 years, and the time period can be covered within 3 to 5 years. If it is not more than three years, it is very likely that the restoration project will become a mere formality, and the acceptance time will be reached as soon as the preparation work is completed and the restoration is about to start, and the restoration or complete restoration goal is not reached. The funds supported by the central government are not used well. (2) For groundwater control and restoration, in principle, it should not exceed 10 years, and the time period can be covered within 5-10 years. Rehabilitation of groundwater is a relatively long-term process. If the risk control and remediation project cycle involving groundwater is set within 5 years, under normal circumstances, the difficulty of remediation will be very high and the possibility of achieving the target will be very small, so it is recommended to proceed adjustment.

III. Increase the basic principles of project management

It is suggested that a new provision should be added between “I. Project type and period” and “II. Division of project management”, namely “Basic principles of project management”. The proposal includes the following four principles:

1. The principle of economy. The principle of economy refers to minimizing the cost of control, restoration, and investigation, minimizing the consumption of social resources, and giving full play to the effectiveness of central fiscal funds.

2. The principle of nature. The principle of nature means that restoration must be carried out in accordance with the laws of natural ecology. Engineering restoration cannot be simply implemented. It should be combined with local actual conditions and follow the laws of natural ecology, especially in accordance with the laws of local biodiversity. In this regard, currently the CBDGDF has formulated five biodiversity conservation standards, including biodiversity survey and monitoring standards, evaluation standards, restoration standards, compensation standards and adaptation standards, which can be used as reference.

3. The principle of finiteness. The principle of finiteness refers to appropriate restoration according to local conditions, and excessive restoration cannot be performed without restriction. For example, groundwater, if there is no functional demand for drinking water in the surrounding areas in the short term, there is no need to spend a lot of money to restore it to the drinking water standard. Moreover, the repair of groundwater is difficult, and it is likely to be half the effort in the end.

4. Macro principles. The macro principle means that the governance of the system must be consistent with the overall grasp, especially the restoration, which must be compatible with the surrounding ecological environment. For example, if the contaminated soil is surrounded by a mining area, there is no need to restore it to farmland standards. Then, on the premise of adhering to the macro principles, it should be ensured that no secondary pollution, proliferation, or harm will be caused during the restoration process, and the information on the management and control risks, restoration and other conditions should be fully disclosed.

IV. Standards for project storage should be set

It is recommended to add the standard of project storage in item (1) of “II. Project Management Division”, which shall be formulated by the Ministry of Ecology and Environment to ensure that the project storage has a higher threshold. In particular, it is not possible to include the remediation of a type of pollution with a clear responsible person in the project storage, so as to prevent local overfilling.

V. Increasing the requirements for the announcement of project storage

It is recommended to add a new requirement for the publicity of project storage between “(2) Evaluation and review of project storage” and “(3) Confirmation of annual support projects” in “III. Project Management Procedures”. All projects in the storage should be made public and publicized.

Correspondingly, it is recommended to increase the verification mechanism of soil pollution control and remediation between “(5) Project Summary” and “(6) Submission of Project Archives”. A third-party verification mechanism should be introduced to verify the entire process of the project, including the investigation and assessment of biodiversity. Completely delegate this work to professional social organizations, or other third-party organizations capable of undertaking inspections, or can form a joint inspection team, but must include professional social organizations, to objectively, fairly and openly evaluate the progress of project storage and restoration effects, and make full use of the funds from the central government. Punishment measures must be given to fraud and other acts discovered during the verification, and all funds shall be recovered and placed on the credit blacklist. If the scale of the funds involved is large and has caused serious adverse social impacts, the legal responsibility should be further investigated.

VI. Strengthen social supervision and establish a reporting mechanism

It is recommended that between “(2) Evaluation and review project storage” and “(3) Confirmation of annual support projects” in “III. Project management procedures”, increase the establishment of a reporting mechanism and introduce social organizations to supervise soil pollution prevention and control projects on behalf of the public. For the storage of unqualified projects, the public can report to the ecological environment department through different channels such as telephone and Internet.




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