August 2017
The Waste Disposal Act shall give priority to the pursuit of the party engaged in the pollution act and only switch to the party responsible for maintenance of the environmental state when the former is unsuccessful; direct prosecution of the latter party is prohibited(Taiwan)
2016.07.15
Ankwei Chen
The Supreme Administrative Court rendered the 105-Pan-371 Decision on July 15, 2016 ("Decision"), which held that the Waste Disposal Act shall give priority to the pursuit of the party engaged in the polluting act and only switch to the party responsible for maintenance of the environmental state when the former is unsuccessful; direct prosecution of the latter party is prohibited.
In the subject case, Appellant purchased the factory building and land previously owned by New Sun Co. in a civil enforcement auction. As it turned out, the land had a batch of "non-hazardous electric arc furnace dust or its mixture" left on the premises, and the Appellee agency issued an official letter requiring the Appellant to present a Òdumping site waste disposal planÓ to clean up the industrial waste. The Appellant failed to timely comply with such order, and the Appellee agency ordered Appellant to complete the cleanup within two months pursuant to Article 71, Paragraph 1 of the Waste Disposal Act. The Appellant filed this administrative action to contest such order.
According to the Decision, as Article 71, Paragraph 1 of the Act imposes on an owner, manager or user of a land who either allows or out of gross negligence wastes to be illegally dumped on the land the responsibility to clean up such wastes within a certain period of time, the type of liability imposed is based on the polluting act, so priority must still be given to pursuing the party that engaged in such polluting act; only if the prosecution of such party is not feasible could attention be directed toward the party responsible for the maintenance of the environmental state. As such, taking direct action against the latter is prohibited.
Given the above, since t New Sun Co. as the party that engaged in the polluting act, was in bankruptcy proceedings and cannot perform the cleanup, the Appellee agency shifted towards the party responsible for the maintenance of the environmental state. At the time of the administrative order, the Appellant holds title to the land at issue, thus the Appellee recognized Appellant as the party responsible for the maintenance of the environmental state and issued the cleanup order. Because no legal error is present in the AppellantÕs handling, the AppellantÕs appeal was rejected.
Ankwei Chen
The Supreme Administrative Court rendered the 105-Pan-371 Decision on July 15, 2016 ("Decision"), which held that the Waste Disposal Act shall give priority to the pursuit of the party engaged in the polluting act and only switch to the party responsible for maintenance of the environmental state when the former is unsuccessful; direct prosecution of the latter party is prohibited.
In the subject case, Appellant purchased the factory building and land previously owned by New Sun Co. in a civil enforcement auction. As it turned out, the land had a batch of "non-hazardous electric arc furnace dust or its mixture" left on the premises, and the Appellee agency issued an official letter requiring the Appellant to present a Òdumping site waste disposal planÓ to clean up the industrial waste. The Appellant failed to timely comply with such order, and the Appellee agency ordered Appellant to complete the cleanup within two months pursuant to Article 71, Paragraph 1 of the Waste Disposal Act. The Appellant filed this administrative action to contest such order.
According to the Decision, as Article 71, Paragraph 1 of the Act imposes on an owner, manager or user of a land who either allows or out of gross negligence wastes to be illegally dumped on the land the responsibility to clean up such wastes within a certain period of time, the type of liability imposed is based on the polluting act, so priority must still be given to pursuing the party that engaged in such polluting act; only if the prosecution of such party is not feasible could attention be directed toward the party responsible for the maintenance of the environmental state. As such, taking direct action against the latter is prohibited.
Given the above, since t New Sun Co. as the party that engaged in the polluting act, was in bankruptcy proceedings and cannot perform the cleanup, the Appellee agency shifted towards the party responsible for the maintenance of the environmental state. At the time of the administrative order, the Appellant holds title to the land at issue, thus the Appellee recognized Appellant as the party responsible for the maintenance of the environmental state and issued the cleanup order. Because no legal error is present in the AppellantÕs handling, the AppellantÕs appeal was rejected.
