January 2024
Teresa Huang, Vincent Kuo, Andrew Huang
The Marine Pollution Control Act of Taiwan (hereinafter “MPCA”) was initially enacted in 2000. In 2018, the competent authority in charge of the MPCA was transferred from the Environmental Protection Administration, Executive Yuan (currently known as the Ministry of Environment) to the Ocean Affairs Council, the dedicated agency responsible for ocean affairs. To align with global trends, strengthen marine pollution management, and achieve the sustainable marine development, Taiwan’s legislators conducted a large-scale amendment of the MPCA in 2023. The three highlights of this recent amendment include:
(i) extending the levy of the marine pollution control fee,
(ii) establishing a Marine Pollution Control Fund, and
(iii) intensifying penalties for marine pollution offenses.
Due to this legislative amendment, the Ocean Affairs Council has been continuously revising the implementation rules and regulations, and promulgating the relevant drafts. The summary is as follows:
1. Extending the Levy of the Marine Pollution Control Fee
Adhering to the polluter pays principle, which holds that those who may cause marine pollution should bear the obligations of restoration and compensation for damages, the recently amended MPCA extends the scope of the marine pollution control fee levy to encompass:
(i) individuals or entities engaged in marine dumping with the permission of the Ocean Affairs Council,
(ii) importers who receive or transport crude oil or other substances publicly designated by the Ocean Affairs Council in the intertidal zones, internal waters, or territorial waters of Taiwan, and
(iii) individuals or entities involved in maritime projects or utilizing marine facilities up to the scale announced by the Ocean Affairs Council (Article 11 of the MPCA).
The marine pollution control fee will serve as one of the funding sources for the Marine Pollution Control Fund.
2. Establishing a Marine Pollution Control Fund
The newly amended MPCA authorizes the Ocean Affairs Council to establish the Marine Pollution Control Fund (hereinafter “the Fund”). In addition to the above-mentioned marine pollution control fee, the funding sources for the Fund include incomes from the reimbursement of emergency measures, clean-up and disposal costs incurred by the relevant government agencies seeking compensation as stipulated in the MPCA, as well as interests accrued from the Fund and other relevant incomes (Article 12 of the MPCA). In contrast to the special funds established under past legislation, the Fund draws from a more diverse array of funding sources. Its specified functions include:
(i) covering expenses incurred by the relevant government agencies in adopting emergency measures and performing clean-up and disposal work in the event of marine pollution or the threat thereof,
(ii) covering expenses associated with carrying out marine environmental quality monitoring and damage surveys in the event of marine pollution,
(iii) covering expenses resulting from acquiring equipment and materials for marine pollution control and response,
(iv) covering costs incurred by the relevant government agencies in claiming compensation under the MPCA and participating in litigation,
(v) employing personnel necessary to carry out tasks related to marine pollution control and fee levy,
(vi) subsidizing and incentivizing the research and development of technologies related to marine pollution control, and
(vii) covering other expenses essential to marine pollution control task (Article 13 of the MPCA).
The Ocean Affairs Council will also enact the “Regulations Governing the Receipts, Expenditures, Custody and Utilization of Marine Pollution Control Funds” to regulate the management and utilization of the Fund, and the establishment of the management committee.
3. Intensifying Penalties for Marine Pollution Offenses
The newly amended MPCA increases the severity of corresponding criminal penalties and fine cap, and introduces additional provisions for foreign-flagged ships.
(i) In terms of criminal liabilities: for activities such as disposing of specific substances in the ocean, incinerating hazardous substances on the sea (Article 40 of the MPCA), or discharging wastewater into the sea and the contiguous zone without permission (Article 41 of the MPCA), the maximum sentences are seven (7) and five (5) years of imprisonment respectively, accompanied by fines up to NTD100 million applicable. Besides, engaging in unauthorized use of marine facilities for oil exploration, oil or chemicals transportation, or discharging wastewater may result in a maximum sentence of less than five (5) years of imprisonment, along with fines of up to NTD30 million (Article 42 of the MPCA).
(ii) In terms of administrative liabilities: it encompasses provisions for actions such as engaging in oil transportation, marine engineering, or marine dumping without permission, which may lead to a maximum fine of NTD100 million (Article 47 of the MPCA); additionally, for ships transporting oil or chemicals without taking any pollution prevention measures as required by law, the Ocean Affairs Council may impose fines, issue orders for rectification and improvement within a specific period, or order a suspension of activities (Articles 48 & 50 of the MPCA).
(iii) As for the foreign-flagged shipping companies that do not establish a branch in Taiwan, if their ships have not paid off fines under the MPCA or provided sufficient collateral for violation of the MPCA, the Ocean Affairs Council may prohibit their navigation (Article 34 of the MPCA). Furthermore, in the event of failure to fulfil the liability for damages and expenses arising from violation of the MPCA, aside from detaining the ships in a port of Taiwan, the Ocean Affairs Council may also prohibit the ship-owner or key crew members from departing (Article 38 of the MPCA).
4. Conclusion
Following the amendment of the MPCA, to effectively strengthen and implement the management of marine pollution control, the Ocean Affairs Council has been consistently revising the relevant implementation rules and regulations, as well as promulgating drafts. For example, this includes the enactment of the “Regulations Governing the Receipts, Expenditures, Custody and Utilization of Marine Pollution Control Funds” and the revision of the Enforcement Rules of the MPCA to clearly define what constitutes a “severe circumstance” as indicated in the MPCA. As such, any entities engaged in crude oil transportation, marine engineering, marine dumping, marine incineration, or any other actions with the potential to pollute the oceans should comprehensively review their current compliance with the provisions of the MPCA and its associated rules and regulations. It is essential to comply with the MPCA and to support the Ocean Affairs Council in implementing marine pollution control and achieving its missions of marine environmental protection and sustainability.
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