The Supreme Administrative Court rendered the 108-Pan-444 Decision of September 20, 2019 (hereinafter, the “Decision”) to affirm that the soil pollution control sites announced under Article 12, Paragraph 2 of the Soil and Groundwater Pollution Remediation Law can be sufficiently determined if the concentration of pollutants meets the pollution control standards, and it is not necessary to interpret the statutory criteria based on “clear sources of pollution.”
According to the facts underlying this Decision, after soil samples were taken by the retrial defendant from the land of the retrial plaintiff (hereinafter, the “Site at Issue”), the total petroleum hydrocarbon (TPH), ethylbenzene, and xylene concentrations as detected exceeded the soil pollution control standard total. Kaohsiung City Government subsequently announced the Site at Issue as a soil pollution control site and delineated it as a soil pollution control zone, even though the pollution actor has not been identified yet. After further investigation was conducted and the retrial plaintiff stated his opinion, the retrial defendant determined that the retrial plaintiff was the pollution actor of the Site at Issue and instead announced the retrial plaintiff as the pollution actor of the control site and within the scope of the soil pollution control zone and generally stated the current situation of the Site at Issue and the pollutants on November 19, 2014 in accordance with Article 12, Paragraph 2 of the Soil and Groundwater Pollution Remediation Law (hereinafter, the “Law”) and Article 10 of the Enforcement Rules of the Law. Dissatisfied, the retrial plaintiff filed an administrative appeal and brought an administrative action, which were finally dismissed. Therefore, a retrial of this matter was filed.
According to the Decision, Article 273, Paragraph 1, Subparagraph 1 of the Administrative Litigation Law provides that “obviously erroneous application of laws,” which is the statutory reason for filing a retrial, means that the laws and regulations applied in the original final decision are obviously not legally appropriate or apparently violate an interpretation rendered by the Grand Justices of the Judicial Yuan. As for discrepancies in legal opinions or justified exercise of fact-finding authority, since this is not an apparently erroneous application of laws and regulations, this may not be relied on as the ground for a retrial.
In addition, according to this Decision, the original final decision held as follows. Article 12, Paragraph 2 of the Law specifically provides that “soil pollution” and “clear sources of groundwater pollution” are two different preconditions, since soil is a medium in a fixed position and a polluted location is also fixed; and if pollutants are discharged or abandoned to the extent that the quality of soil is changed due to its contact with substances and that the statutory soil pollution control standard is met, it is sufficient to cause the competent authority to announce it as a pollution control site. In case of groundwater, since it is a moving medium with unfixed pollution sources, the announcement of a groundwater pollution control site should also meet the criterion of “clear pollution sources.” Therefore, if the concentration of pollutants in soil pollution reaches the soil pollution control standard, the competent authority may announce the site as a soil pollution control site. For groundwater pollution, in contrast, not only should the concentration of the pollutants meet the groundwater pollution control standard, but also the criterion of “clear pollution sources” should be satisfied before the site may be announced. With respect to the interpretation of such legal provision, the original final decision differentiated the criterion of the “soil pollution” or the “clear groundwater pollution sources” in the first part of Article 12, Paragraph of the Law by the sequence of the text when concluding that “clear pollution sources” is merely a special criterion for groundwater polluted sites. The interpretation of the first part of Article 12, Paragraph of the Law in the original final decision does not violate grammatical interpretation of the provision’s text. In addition, the Law was promulgated on February 2, 2000. The name of the original legal proposal submitted by the Executive Yuan for deliberation was “the Soil Pollution Remediation Law,” which was primarily focused on the regulation of matters relating to soil pollution remediation and also on the resolution of groundwater pollution arising from soil pollution. Article 11, Paragraph of the legal proposal at that time only provided that “if the concentration of pollutants in the soil meets the soil pollution control standard, the local competent authority shall request the central competent authority to announce the site as a soil pollution control site” and did not include “clear sources” as a criterion for announcing a soil pollution control site. The wording “clear groundwater pollution sources” did not appear until a subsequent deliberation in the Legislative Yuan when groundwater pollution was also included in the scope of control since it was believed that soil pollution often extends to groundwater. A general observation of the Law and its enforcement rules does not reveal any regulation on unknown pollution sources relating to a soil pollution control site. Therefore, it was concluded that the original final decision, which explained its findings based on the pollution characteristics of soil and groundwater and relevant provisions of the Law, meets historical interpretation and systematic interpretation. Since it was further determined that original final decision had no obvious errors in the application of law, the action for a retrial was rejected.