토양환경법제의 최근 동향과 쟁점

Korea's Soil Environment Conservation Act (“SECA”) has been amended several times, since it entered into force on January 1, 1998. At this time, I try to analyze the legal trend and issues in the field of soil environment. To put it concretely, I presents a brief overview of the history of the legal systems to conserve the soil environment, and current SECA. Then, I analyze the legal trend, issues and future challenges surrounding SECA, focused on the SECA bill, introduced by the Government and pending in National Assembly. SECA identifies “polluters” as (i) parties who have induced soil contamination by leaking, releasing, dumping or abandoning the substance of soil contamination, (ii) parties who own, possess, or operate the facilities that trigger soil contamination, which originally caused soil contamination, (iii) parties who have taken over the facilities causing soil contamination through merger, inheritance, or other reasons; and finally (iv) persons who have taken over the “facilities that trigger soil contamination” on account of several acts. In addition, SECA holds “polluters” responsible for clean-up of the contaminated site. In particular, the provision that “polluters” include parties who have induced soil contamination creates the risk that SECA's liability will become “everyone's liability.”As the site investigation techniques to assess contamination are gradually developed, there are gradually increasing numbers of cases that the seriously contaminated sites are detected, and many interested parties, including the site-owners, are enforced to clean up the contaminated sites under SECA. And that is resulting in the legal battles between the (past or present) site-owner and the competent authority, or between the past site-owner and the present site-owner. The bill pending in National Assembly includes (i) the estimation of topsoil erosion, (ii) the Minister of Environment's clean-up of the government-owned sites, (iii) exempting the one who trusted the result of an assessment of soil environment from responsibility to clean-up, (iv) the establishment of a mutual aid association of sites clean-up, (v) the enhancement of risk assessment, (vi) the designation of soil environment management complex, and (vii) the expansion of residents support measures. Though SECA has been developed and will be develop further, it is difficult to say that Korea is free from the problems of soil contamination and that Korea is absolutely free from the problems of brownfields. It is necessary to pay continuous attention to the legal efforts to resolve the trade-off between environmental protection and economic development.