Recent Developments in Soil Protection Policy and Law in Japan

Yoko Masuzawa
Associate Professor, Department of Environmental Policy and Management
Tottori University of Environmental Studies

Tackling soil contamination requires a significantly different approach from that required for either air or water pollution. Because pollutants in soil do not diffuse or dilute as readily as airborne or water pollutants, they remain longer and accumulate in greater amounts. This poses an increased risk to both human health and the environment. Therefore, requirements for cleanup or rehabilitation of contaminated soil should be a major part of any soil protection policy. After the United States introduced the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) in 1980, many countries followed suit and established soil protection laws that include cleanup mechanisms. Japan has contemplated a comprehensive soil protection policy for the last decade, but it was only recently that such endeavors resulted in a new soil protection law. This article will describe the brief history of soil protection policies in Japan, provide an overview of the new law and discuss some key issues associated with the new law.

History of Soil Protection Policies in Japan

Soil contamination is considered to be a typical and traditional type of pollution, and is listed in the Basic Environment Law (BEL) as an example of “environmental pollution (Kogai).” (Kankyo kihon ho, Law No. 91, 1993). Development of soil protection policies, however, has been rather slow compared to the policies developed for other types of pollution. For example, while the environmental quality standards (EQSs) for air and water became effective in the 1970s, it was not until 1991 that the EQSs for soil were established.

The first soil protection law enacted in Japan was the Agricultural Land Soil Pollution Prevention Law (ALSPPL) (Noyochi no dojoosen no boushi ni kansuru horitsu, Law No.139, 1970). Pursuant to the ALSPPL, prefectural governors are authorized to designate contaminated agricultural areas and establish plans to prevent or rehabilitate such contamination. The national or local governments that take rehabilitation measures listed in the plan are reimbursed by the polluters, based on the Pollution Control Public Works Cost Allocation Law. (Kogai boshi jigyohi jigyosha futan ho, Law No.133, 1970). Primarily because the law was enacted as a result of the outbreak of “Itai-itai Disease” and other pollution cases where mining waste water containing heavy metals contaminated farmland and caused harm to crops and to human health, the ALSPPL only regulates contaminated farmland.

Beginning in the late 1970s, major soil contamination cases were unveiled in urban areas, raising public concerns about “urban type” (i.e., non-farmland) contamination. Regulatory attempts to prevent the harms that would be caused by this “urban type” soil contamination were first addressed by the regulation of groundwater pollution. In 1989, the Water Pollution Control Law (WPCL) was amended to prohibit the infiltration of, waste water contaminated by heavy metals and hazardous chemicals. (Suishitsu odaku boshi ho, Law No.138, 1970). In 1996, the WPCL was amended again to include a mechanism to remediate polluted groundwater. Under the new provisions, a governor has the authority to issue cleanup orders to an owner of a regulated facility, if such owner infiltrates pollutants into the soil and causes ground water pollution to the degree that may damage human health.

The first statute that stipulates the cleanup of “urban type” soil contamination is the Law for Special Measures Against Dioxins (1999). (Daiokishinrui taisaku tokubetsusochi ho, Law No.105, 1999.) In the late 1990s, cases involving high-level contamination by dioxins, mainly believed to be generated by incinerators, were widely publicized. Reported series of pollution cases combined with poor risk communication provoked public outrage, which lead to the enactment of the Law. In addition to restricting emission of dioxins into the air and water, the law provides a cleanup mechanism for contaminated sites. It was modeled after the ALSPPL system, where the government conducts the cleanup and the polluters bear the costs for such cleanup.

In the late 1990s, in addition to environmental concerns, anxieties increased over the negative effects that soil pollution or the lack of protection measures would pose to the real estate markets. The reported number of soil investigations, and thereby discovered polluted sites, soared. In many cases it was the landowners who performed such investigations. Following the collapse of the Japanese “bubble economy,” foreign corporations involved in the Japanese real estate markethave taken the lead in requiring soil investigation as part of real estate transactions. (Hearing in Dojo kankyo hozen taisaku no arikata ni kansuru kentoukai [Committee on Developing a New Soil Protection System], 3rd meeting, Feb. 20, 2001).

In the year 2000, the revised Basic Environment Plan cited soil pollution as a “negative heritage” of humans and the environment. The Plan called for swift and effective countermeasures. (Kankyo kihon keikaku, Sorifu kokuji No.70, Dec. 27, 2000). In the same year, the Regulatory Reform Committee also asked for the quick introduction of effective legal systems for soil remediation, arguing that lack of clear and enforceable rules for urban soil protection left the contamination untreated and created problems in real estate transactions. (Gyosei kaikau suishin honbu kisei kaikaku iinkai [Regulatory Reform Committee of the Administrative Reform Headoffice], Kisei kaikaku ni tsuite no kenkai [Views on the regulatory reform], Dec. 12, 2001).

In response to the increasing demand for a new soil protection system, in December 2000, the Ministry of the Environment (MOE) organized a group of experts to discuss possible approaches for establishing a soil protection system. The MOE consulted with the Central Environmental Council (CEC). In January 2002, the CEC submitted a report that proposed a framework for the new soil protection mechanism. (Chuo kankyo shingikai, Kongo no dojo kinkyo hozen taisaku no arikata ni tsuite [Report on a new soil protection system] (hereinafter, CEC report), Jan. 25, 2002).

The MOE drafted a bill in line with the CEC report, which was then submitted to the Diet for deliberation in February 2002. After the Diet approved the bill without changes, the Soil Contamination Countermeasures Law was promulgated in May. It will come into effect within nine months from its promulgation.

Outline of the Soil Contamination Countermeasures Law

The Soil Contamination Countermeasures Law (SCCL) is composed of 42 provisions and several supplementary clauses. The basic goal of the SCCL is to establish a risk management system for existing contaminated sites. Preventive or precautionary measures for soil contamination are addressed by other laws, such as the WPCL or the Waste Management Law. (Explanation of the Environmental Minister in 154th Diet session, Shugiin Kankyoiinkai

[Environmental committee of House of Representatives] No. 7, April 5, 2002). The SCCL provides conditions and procedures for finding contamination, registering contaminated sites and reducing risks. The methods used to reduce risk are based on the nature of the risks and the future use of the site.

The purpose of the SCCL is to protect human health by implementing countermeasures for soil contamination (§ 1). The SCCL addresses contamination caused by “Designated Hazardous Substances (DHSs).” The DHSs will be specified by a cabinet order (§ 2), and will include substances on the list of the EQSs for soil. (Currently, 26 categories of pollutants are listed). Articles 3 through Article 9 of the SCCL stipulate the risk management process.

The first stage of the process in the SCCL is a site investigation to assess potential contamination by the DHSs. First, upon closure of a facility, the owners, operators or occupants of the sites where “specific facilities” used to be in operation must investigate the sites and report the result of the investigation to the prefectural governors on their closure (§ 3). “Designated Facilities” are the facilities which manufacture, use or treat any of the DHSs and that are also controlled by the WPCL. Second, prefectural governors may issue investigation orders to the owners of the sites when such sites are found to cause or may cause damage to human health due to the pollution by DHSs (§ 4). The governors may conduct the investigation themselves if the owners of the sites are unknown.

The second stage of the risk management process is designation of contaminated sites. If the investigation shows the sites are polluted above certain levels, the governors designate the sites and list them in registers, which are accessible by the public. (§§ 5, 6). It is not until a site is cleaned up that it can be deleted from the register.

At the final stage, the designated sites may be subject to the following two requirements. The governors may issue orders that requires the owners of the designated sites to take specific measures, (e.g., cleanup, covering up, or others) that are necessary to prevent health damage (§ 7). If the owners did not pollute the sites, and if it is appropriate to have the polluters take the measures, the governors may issue the orders to the polluters (§ 8). A property owner who conducted risk reduction measures as ordered by the governor is entitled to get reimbursed by the parties that polluted the property. When site configurations are altered or the soil is removed from a site, advance notice to the governor is required in order to prevent secondary pollution. The governor may order to change the planned land use if needed (§ 9).

Article 10 and subsequent articles provide for the qualifications of designated investigation agents, a supporting system for the non-financed owners, and implementation and enforcement mechanisms.

Discussions on the Risk Management Process under the SCCL

Developing the new risk management mechanism in the SCCL involved a broad range of discussions on various legal and technical issues. In this section on the SCCL, some of the key issues and discussions associated with the Law are summarized.

Site Investigation

Detecting soil contamination is no easy task. Investigations are necessary to delineate the extent of contamination at the site. Such investigations would impose substantial economic burden to the parties. Naturally, one of the challenges associated with the SCCL is determining on which occasion investigations were warranted.

The SCCL makes investigations by the owners of specific facilities mandatory upon their closure. The rationale behind this approach includes the fact that many pollution cases have been discovered at the industrial facility sites or ex-sites where hazardous substances were in use (CEC report, supra note 10, I3(1)) and for as long as the facilities are in operation, the public access is limited and the environment inside is controlled by relevant laws such as the Labor Law. (154th Diet session, Shugiin Kankyoiinkai [Environmental committee of House of Representatives] No.5, March 29, 2002). Investigations are also triggered by an order of a prefectural governor when contaminated sites which may cause health damage or discovered. The details of the orders will be prescribed by a cabinet order.

Some experts argue that the targets of the mandatory investigation should be broader. (See, e.g., Statement of Professor Akio Hata, in the 154th Diet session, Sangiin Kankyoiinkai [Environmental committee of House of Concilors] No. 12, May 9, 2002). The drafters of the SCCL, however, chose to limit the landowners’ responsibility to assess potential contamination on their premises, and place a burden on the prefectural governors to identify the sites to be investigated.

Details of the orders were recently proposed. According to the proposals, the prefectural governors may issue an order for investigation if they reasonably believe that 1) the contamination of the sites may exceed the site designation standards, 2) the contamination may cause health damage through ground water pollution (or in certain cases, the sites are accessible by the public) and 3) no appropriate countermeasures are being taken. (Kankyosho, Dojo osen taisaku ho nimotoduku seishourei nikiteisuru naiyo an [the proposed details to be stipulated by the cabinet and ministerial orders for the SCCL] published Aug. 8, 2002 to invite public comment).

The proposed language is unclear as to how high the hurdles will be for the prefectural governors to issue an order for investigation. Nevertheless, if the governors decide to use this scheme, they will need a considerable amount of information. In that sense, it might have been an option to include a system in the SCCL that would enable the governors to collect information, such as site records, which would help them to effectively screen the sites to be investigated.

Parties Responsible for the Countermeasures

Another major issue in developing the new soil protection system is determining the responsible party for implementing and/or bearing the cost of risk reduction measures.

In Japan, the Polluter Pays Principle (PPP) is a strongly established notion and is applied even beyond its original scope. One of the initial bodies developing and supporting the PPP is the OECD. In Japan, the PPP has extended to the cost to clean up polluted sites, and to redress the damages to the victims of soil contamination. This understanding of the PPP is confirmed by a report drafted by the Central Pollution Control Committee (Ex-CEC) in 1971. (Chuo kogai taisaku shingikai, Kogai ni kansuru hiyoufutan no kongo no arikata ni tusite [Report on policies on allocating costs of public pollution], March 10, 1971).

The existing soil protection laws in Japan either require polluters to restore damages at their own expense (e.g., groundwater restoration orders under the WPCL), or require that the national/local governments conduct the restoration works and require the costs borne to be paid by the polluters (e.g., ALSPPL, Law for Special Measures Against Dioxins). Therefore, during the process of developing the SCCL, polluters, national/local governments and owners (i.e., parties who possessed titles to the polluted sites), were identified as potentially responsible parties who would be responsible for implementing risk reduction measures and/or bearing their costs.

It was decided that the government would not constitute a primary responsible party under the SCCL. Rather, discussions about the role of the government focused on how the government would supplement or support other parties in implementing risk reduction measures and/or bearing their costs. (See, e.g., Discussion in CEC, Dojo noyaku bukai [soil environment and agricultural chemicals committee], Dojo seido shoiinkai [Soil protection subcommittee], 1st meeting, Nov. 16, 2001). As for the polluters, the PPP was strong grounds for their responsibility and their liability was not questioned.

As for landowners, how to apportion liability between polluters’ and landowners’ was raised as an issue. In this regard, it was strongly argued that when a contaminated site endangers human health, the person who holds title to the property is responsible for taking measures to prevent the harmful result. This argument was fully developed in German law, and not foreign to Japanese law. (With regard to the landowners responsibilities, see, for example, Matsumura Yumihiko, Osen dojo joka gimusha ni kansuru ronten [Legal Issues on Responsible Parties for Brownfield Cleanup], Horitsu ronso 72(4); Otsuka Tadashi, Shigaichi dojo osen joka wo meguru aratana doko to hoteki ronten [Recent Policies and Legal Issues on Urban Brownfield Cleanup](3), Jichi kenkyu, 76(4)). The CEC accepted this argument, and in addition to polluters, it recognized a landowner’s responsibility for remedial actions. CEC report, supra note 10, I4(3). Arguments were offered that provided further support for holding landowners responsible in soil contamination cases. These arguments basically held that landowners are in a better position to take remedial actions on their own premises.

If both polluters and landowners are responsible for removing existing risks, how will the responsibility be apportioned? The government reiterated that the guiding principle of the SCCL is the PPP, and that under the SCCL, a governor may not issue an order to a property owner if a party that polluted the site is identified, and the owner agrees to clean up measures to be taken on their premises. The government also indicated that a property owner is entitled to reimbursement from the polluters if they take such clean up measures. (Explanation by the government at 154th Diet session, Shugiin Kankyoiinkai, supra notes 12). It is noteworthy that the plain language of Article 7(1) of the SCCL leaves certain discretion to governors to identify the responsible party.

The recognition of a landowner’s responsibility in the SCCL as a responsible party is an important step to advance soil remediation in regulatory schemes as well as on a voluntary basis. On the other hand, the prefectural governors may face a difficult task in deciding the party that will receive an order, especially when they cannot assume that the owners are the polluters.

Site Registration

The Japanese government also debated the type of information to be registered and disclosed to the public. Under the SCCL, information on designated contaminated sites is recorded in a register. It was decided that the site registers would be disclosed to the public because it was believed that 1) the neighboring communities should be informed of the risks, and 2) potential buyers or developers of the sites should recognize the risks and refrain from conduct which may increase the risks. (CEC report, supra note 0, I5(1)). It was decided that the register would make a distinction between the sites that have taken proper risk management measures and those sites that have yet to take any action. The sites are deleted from the register once they are fully cleaned up or proper risk management measures are taken.

Some argued that the registers should keep the records of cleanup as they are important information. This argument was rebutted due to the concerns that a site listed in the registry might negatively affect the property values, and deletion from the register was considered to be an incentive for the parties to clean up the sites. Others argued that while there could be many potential polluted sites that are not yet revealed, and thus not registered, there is no reason to penalize the sites already cleaned up. (See, e.g., Discussion in CEC, Dojo noyaku bukai, dojo seido shoiinkai, 2nd meeting, Nov. 22, 2001).

Different views were also expressed. For example, it was also argued that a thorough investigation of the potentially polluted sites and disclosure of such information is the key to a soil protection system. Once the information is open, the market will decide to what extent a site should be cleaned up, and land transactions may proceed smoothly. Some posited that if people have enough information, they would not overly react to pollution cases. (Koso Nihon Chishitsu kankyo hozen kenkyukai [A Research Group on Preservation of Geo-Environment, JAPAN INITIATIVE]”Chishitsu kankyo no hozen oyobi kanri ni kansuru ho” no rippoka ni mukete [For Preservation and Management of Geo-Environment: Our Proposition for a Legislation], Shigen kankyo taisaku 37(16)).

This latter argument has merit. The SCCL would affect the market and stimulate the generation of information. For instance, a party who intends to purchase a parcel of property would request to receive the site records and/or the site investigation data, as the party might become responsible for clean-up if the pollution is later revealed. A system for such investigation may be standardized by legally required investigation methods, or by voluntary standards. If such a system is in place, it would be more acceptable to many that information on a site, generated obligatorily or voluntarily, is compiled and shared by the public.

Despite the apparent limitations, the SCCL incorporates and envisions significant progress in Japanese soil protection policies. The clear rules of addressing soil contamination allow people to act more readily and responsibly. In addition, the recognition of responsibility which arises from land ownership in the SCCL might have a major impact on future environmental law, as well as land use law.

Editor’s Note: From 1990 until March 2002, Professor Masuzawa served as a legal officer of the Ministry of the Environment (before Jan. 2001, Environment Agency) and, most recently, was deputy director of Policy Coordination, Evaluation and Public Relations Division. Any views expressed herein are those of the author and do not reflect those of the Ministry of the Environment.