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The Impacts and Implications of CERCLA on the Soil Environmental Conservation Act of the Republic of Korea

Published online by Cambridge University Press:  25 November 2015

Yonghee Yoon Open the ORCID record for Yonghee Yoon [Opens in a new window]
Yonghee Yoon*
Affiliation:
Yulchon LLC, Seoul (Republic of Korea). Email: [email protected].
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Abstract

This article explores the development and enforcement of the Republic of Korea’s Soil Environmental Conservation Act (SECA). It argues that, although Korea has adopted the statutory model of the United States (US) Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and US case law, it has formulated SECA to devise a Korean model of an effective and reasonable liability scheme based on the Korean regulatory context. The original SECA, especially its retroactive liability provision, was declared unconstitutional by the Constitutional Court of Korea, because it violated ‘the principle of legitimate expectations protection’. Since then, SECA has been amended to include more diverse categories of polluter and to provide more adequate defences. The development process of this Korean model can be instructive for less developed countries that urgently need to address soil pollution but are not yet equipped with the necessary environmental statutes and regulatory infrastructure and, thus, are vulnerable to environmental risks.

Keywords

Environmental law of the Republic of KoreaSoil Environmental Conservation Act of the Republic of Korea (SECA)Comprehensive environmental response, Compensation and Liability Act (CERCLA)Retroactive liabilitySoil contamination
Type
Articles
Information
Transnational Environmental Law , Volume 6 , Issue 1 , March 2017 , pp. 11 - 29
Copyright
© Cambridge University Press 2015 

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Footnotes

The author would like to thank Barton H. ‘Buzz’ Thompson Jr. and Vanessa Casado-Perez for their help in advising upon this article.

References

1 Pub. L. 96-150, 94 Stat. 2767 (11 Dec. 1980). CERCLA has subsequently been amended by the Superfund Amendments and Reauthorization Act of 1986 and the Small Business Liability Relief and Brownfields Revitalization Act of 2002.

2 Salzman, J. & Thompson, B.H., Jr., Environmental Law and Policy (Foundation Press, 2010), pp. 226–227 Google Scholar.

3 Ibid., p. 222.

4 Ibid., p. 222: ‘no country followed the approach set out in CERCLA’. This assertion overlooks the fact that the Republic of Korea has been following the approach of CERCLA since 1995.

5 Act No. 4906 (5 Jan. 1995). The 1995 SECA entered into force on 6 Jan. 1996.

6 SECA 1995, ss. 15 and 23.

7 Act No. 6452 (28 Mar. 2001, in force 1 Jan. 2002) (2001 SECA Amendment), s. 23.

8 Kim, H., ‘Constitutionality of the Provisions of Polluters under the Soil Environmental Conservation Act’ (2013) 35(1) Korean Environmental Law Journal, pp. 199–232 Google Scholar, at 201.

9 Constitutional Court of the Republic of Korea, Decision 2010 Hunba 28, 23 Aug. 2012; Constitutional Court of the Republic of Korea, Decision 2010 Hunba 167, 23 Aug. 2012.

10 SECA was wholly amended by Act No. 12522 (24 Mar. 2014, in force 25 Mar. 2015) (2014 SECA Amendment).

11 See, e.g., United States v. Northeastern Pharmaceutical & Chemical Co., Inc., 810 F. 2d 726 (1986).

12 Salzman & Thompson, n. 2 above, p. 220.

13 Ibid., p. 220.

14 Ibid., p. 220.

15 Lyons, J.J., ‘Deep Pockets and CERCLA: Should Superfund Liability Be Abolished?’ (1986–87) 6 Stanford Environmental Law Journal, pp. 271–344 Google Scholar, at 271–2.

16 Salzman & Thompson, n. 2 above, pp. 224–5.

17 CERCLA, s. 101(9), defines ‘facility’ as ‘any site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located’, in addition to ‘any building, structure, installation, equipment, pipe or pipeline (including any pipe into a sewer or publicly owned treatment works), well, pit, pond, lagoon, impoundment, ditch, landfill, storage container, motor vehicle, rolling stock, or aircraft’.

18 US Courts have interpreted this limitation on the term ‘transporter’ that ‘a transporter selects the disposal facility when it actively and substantially participates in the decision-making process which ultimately identifies a facility for disposal’: see, e.g., Tippins Inc. v. USX Corp., 37 F.3d 87, 90 (3d Cir. 1994).

19 Lyons, n. 15 above, pp. 286–7; Revesz, R.L., Environmental Law and Policy (Foundation Press, 2012), pp. 700–701 Google Scholar.

20 Bearden, D.M., ‘Comprehensive Environmental Response, Compensation, and Liability Act: A Summary of Superfund Cleanup Authorities and Related Provisions of the Act’ (2012) Congress Research Service, pp. 14–15 Google Scholar.

21 Burlington Northern & Santa Fe Railway v. United States, 129 S. Ct. 1870 (2009).

22 N. 11 above.

23 Ibid., pp. 732–3.

24 Ibid.

25 Ibid., p. 733.

26 N. 1 above.

27 Revesz, n. 19 above, p. 723.

28 Salzman & Thompson, n. 2 above, p. 232.

29 N. 1 above.

30 CERCLA, s. 101(40).

31 Ibid., s. 107(q)(1).

32 Ibid., s. 107(o)(1).

33 Ibid., s. 107(p)(1).

34 SECA 1995, Art. 1.

35 2001 SECA Amendment, n. 7 above. Congress moved the Polluter Clause to Art. 10-3 in amending SECA on 31 Dec. 2004 (2004 SECA Amendment, Act No. 7291 (31 Dec. 2004, in force 1 July 2005). The Polluter Clause (Art. 10-3) of the 2004 SECA Amendment is the contested provision reviewed by the Constitutional Court of the Republic of Korea.

36 Therefore, they can be regarded as Polluters even if they were not owners at the time the soil contamination occurred. According to the 2004 SECA Amendment, the expression ‘the facilities subject to the control of soil contamination’ (Controlled Facilities) included ‘places where soil contamination has taken place’. Similarly, the term ‘facility’ in CERCLA includes ‘any site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located’: CERCLA s. 101(9). As seen below, however, the 2014 SECA Amendment removed ‘the contaminated sites’ from the term ‘the Controlled Facilities’ to distinguish the liability of prior owners, occupiers, or operators of ‘the Controlled Facilities’ at the time of the occurrence of soil contamination (Art. 10-4(1)2) from the liability of prior owners, current owners, or current occupiers of ‘the contaminated sites’ (Art. 10-4(1)4).

37 2004 SECA Amendment, Art. 10-3(3)2.

38 Ibid., Art. 10-3(3)1.

39 Unlike CERCLA, however, the 2004 SECA Amendment did not include arranger liability.

40 However, Korean agencies are usually reluctant to clean up contaminated sites in advance on behalf of Polluters.

41 The 2014 SECA Amendment, however, finally allowed the third party defence.

42 See, e.g., Constitutional Court of the Republic of Korea, Decision 2010 Hunba 28, n. 9 above.

43 See, e.g., Kim, S., ‘Constitutional Issues on Retroactive Liability of Korean Soil Environmental Conservation Act’ (2012) 8 Environmental Law and Policy Journal, pp. 55–97 Google Scholar, at 91–2.

44 See, e.g., Yoon, Y., The Precautionary Principle in the Framework Act on Environmental Policy in Korea (Seoul National University, 2008), pp. 56–58 Google Scholar.

45 US courts also follow certain principles of statutory interpretation in construing the meaning of the PRPs Clause of CERCLA: see, e.g., US v. Northeastern Pharmaceutical & Chemical Co., Inc., n. 11 above, pp. 732–3.

46 Kim, n. 8 above, pp. 209–10.

47 For a list of major soil pollution disputes in South Korea, see, e.g., Park, J.W., ‘Legal Trend and Issues in the Field of Soil Environment’ (2010) 4 Environmental Law and Policy Journal, pp. 149–195 Google Scholar, at 163–5.

48 As confirmed by Kim, n. 8 above, p. 210.

49 Eskridge, W.N., Frickey, P. & Garrett, E., Cases and Materials on Statutory Interpretation (West, 2012), pp. 401–404 Google Scholar.

50 Powell, H.J., ‘The Executive and the Avoidance Canon’ (2006) 81(4) Indiana Law Review, pp. 1313–1318 Google Scholar, at 1315–6.

51 United States v. Delaware & Hudson Co., 213 US 366 (1909).

52 Lee, D., ‘The Principle of Constitutional Interpretation and the Legitimacy of the Constitutional Judgement’ (2014) 15(2) Public Law Journal, pp. 163–185 Google Scholar, at 165–7.

53 See, e.g., Constitutional Court of the Republic of Korea, Decision 88 Hunka 5, 14 July 1989; Constitutional Court of the Republic of Korea, Decision 89 Hunma 38, 21 July 1989; Constitutional Court of the Republic of Korea, Decision 88 Hunka 113, 2 Apr. 1990; and Supreme Court, 91 Bu 8, 8 May 1992.

54 Constitutional Court of the Republic of Korea, Decision 2010 Hunba 28, n. 9 above.

55 2004 SECA Amendment, Art. 10-3(3)3.

56 Art. 13 of the Constitution of the Republic of Korea stipulates: ‘(1) No citizen shall be prosecuted for an act which does not constitute a crime under the Act in force at the time it was committed, nor shall he be placed in double jeopardy’; and ‘(2) No restriction shall be imposed upon the political rights of any citizen, nor shall any person be deprived of property rights by means of retroactive legislation’ (emphasis added).

57 See, e.g., Constitutional Court of the Republic of Korea, Decision 96 Hunka 2, 16 Feb. 1996; and Constitutional Court of the Republic of Korea, Decision 97 Hunba 76, 22 July 1999.

58 Art. 2(2) 2004 SECA Amendment states that the term ‘soil contamination’ refers to ‘the condition of soil brought about by commercial or personal activity which causes damage to the health and properties of the people or the environment’.

59 Constitutional Court of the Republic of Korea, Decision 2010 Hunba 167, n. 9 above.

60 Ibid., p. 10.

61 Ibid., p. 12.

62 Ibid., p. 13.

63 858 F. 2d 160 (1988).

64 Ibid., pp. 165–6.

65 42 U.S.C., s. 6973.

66 CERLA, s. 107(a).

67 Monsanto, n. 63 above, p. 173.

68 Blaymore, A., ‘Retroactive Application of Superfund: Can Old Dogs be Taught New Tricks?’ (1988) 12(1) Boston College Environmental Affairs Law Review, pp. 1–50 Google Scholar, at 1–3.

69 Monsanto, n. 63 above, p. 174.

70 Ibid., pp. 173–4.

71 Blaymore, n. 68 above, p. 46.

72 Monsanto, n. 63 above, p. 174.

73 Ibid.

74 Ibid., pp. 174–5.

75 Ibid.

76 Ibid., pp. 173–5.

77 By contrast, the term ‘facility’ in CERCLA includes ‘any site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located’: CERCLA, s. 101(9).

78 As seen above, the 2014 SECA Amendment excludes ‘the contaminated sites’ from the term ‘the Controlled Facilities’.

79 2004 SECA Amendment, Art. 10-4(1)1.

80 Ibid., Art. 10-4(1)2.

81 The term ‘the Controlled Facilities’ included ‘the contaminated sites’ under the 2004 SECA Amendment.

82 2014 SECA Amendment, Art. 10-4(2)1-2.

83 2004 SECA Amendment, Art. 10-3(3).

84 2014 SECA Amendment, Art. 10-4(2)3.

85 N. 59 and Section 3.2 above.

86 2004 SECA Amendment, Art. 10-3(3)2.

87 CERCLA, s. 113(f)(1).

88 2014 SECA Amendment, Art. 10-4(5).

89 See, e.g., Kim, n. 43 above, pp. 91–2.