The Environmental Protection Administration promulgated the Standard for Determining the Due Care Duty for Waste Disposal Outsourced by Enterprises (hereinafter, the “Standard”) via the Huan-Shu-Fei-1060092575 Directive of November 24, 2017. Consisting of nine articles, the Standard came into effect on the day of its promulgation.
Under Article 30, Paragraph 1 of the Waste Disposal Law, when an enterprise outsources the disposal of its wastes, it shall assume joint and several liability with the outsourced party for the wastes. If the outsourced party fails to properly dispose of the waste and the outsourcing enterprise does not exercise its due care, the outsourcing enterprise and the outsourced party shall be jointly and severally liable for the disposal of the wastes and the improvement of the environment. The determination criteria, notice, administrative measures and other relevant matters for the “due care duty which shall be performed by an outsourcing enterprise” should be prescribed by the competent authority pursuant to the authorization under Paragraph 2 of the same article. Therefore, the Environmental Protection Administration prescribed this Standard. This Standard is highlighted below:
1. A specific standard for the due care duty is clearly stipulated.
Article 2 of the Standard stipulates that in case of an enterprise which is required to have professional technicians for handling wastes, if such enterprise which outsources of disposal of its wastes has taken the following measures, it will be sufficient to conclude that the due care duty has been performed: (1) an industrial waste disposal plan has been prepared along with online reporting of waste disposal directions and accurate reporting of the actual waste disposal status pursuant to law; (2) wastes have been classified and stored pursuant to the Methods and Facilities Standards for the Storage, Clearance and Disposal of Industrial Wastes before they are outsourced for disposal; (3) when a written agreement on outsourced disposal of wastes is executed, the outsourced party has been verified to have legal qualifications, and it is agreed that after the wastes are disposed of, written documentation concerning proper disposal shall be submitted and a consent shall be given to accommodate the inspection of the waste disposal status by the outsourcing enterprise; (4) if wastes are disposed of by an enterprise itself by delivering the same to a disposal or reuse entity or facility, the disposal shall be made via the enterprise’s own vehicles and employees or via a business vehicle leased from a lawful transportation operator with an employee of such enterprise carrying supporting documents onboard the vehicle; (5) an internal autonomous inspection and audit system for wastes shall be set up; and (6) the outsourced enterprise accepting the wastes in Schedule 2 shall be visited at least once a year to ascertain the status of operation such as the storage, clearence, disposal and reuse of wastes and records shall be kept and properly maintained for five years.
2. It is specifically stipulated that an enterprise may retain an entity with relevant expertise to help manage waste disposal.
Article 4 of the Standard provides that an enterprise may retain relevant trade (professional) associations, academic societies, professional technicians, full-time engineers or foundations to handle relevant management measures. In addition, Article 5 of the Standard stipulates that a member enterprise of a trade (professional) association may retain the trade (professional) association to jointly visit the outsourced disposal or reuse entity, and the results of such visit may be provided to member enterprises for reference.
3. It is specifically stipulated that when determining the due care duty, the competent authority may require the enterprise to provide relevant materials and call a consultation meeting.
Article 6 of the Standard provides that when determining if the due care duty is fulfilled by an enterprise, the competent authority in a municipality under the direct jurisdiction of the Executive Yuan or county (city) may require the enterprise or relevant entities (organizations) to provide relevant materials. For an incident involving improper disposal of wastes and covering multiple municipalities under the direct jurisdiction of the Executive Yuan or counties (cities), the determination shall be made by the competent authority in the municipality under the direct jurisdiction of the Executive Yuan or county (city) where the results of the incident take place. Article 7 of the Standard stipulates that to determine if due care duty is fulfilled, the competent authority in a municipality under the direct jurisdiction of the Executive Yuan or county (city) may call a consultation meeting and may invite representatives from relevant entities (organizations) and trade (professional) associations to attend. In addition, Article 8 of the Standard provides that to investigate the scope and volume of wastes not properly disposed of, the competent authority in a municipality under the direct jurisdiction of the Executive Yuan or county (city) may notify the enterprise to provide written explanation and relevant supporting documentation within a specified period. If the enterprise fails to provide written explanation or relevant supporting documentation as required or indicate the scope and volume of the wastes not properly disposed of to the extent that determination is obviously difficult, the competent authority in a municipality under the direct jurisdiction of the Executive Yuan or county (city) may make the determination by way of estimation.