Continuing from the previous text: Environmental Protection Lawyers Guide You to Understand the "Billion Dollar Toxic Land Case" (III): Who Can sue Who on Earth - From the Perspective of Soil Pollution Liability Disputes

Recently, Shanghai Lujiazui Financial and Trade Zone Development Co., Ltd. (securities abbreviation: Lujiazui; securities code: 600663. SH) filed a "toxic land" case with Jiangsu Sugang Group Co., Ltd. (hereinafter referred to as Sugang Group), government departments, and third-party institutions claiming over 10 billion yuan, which has become a hot topic in the search. The complex soil pollution problem and huge claims make the case even more complicated and confusing. The author will provide you with some sorting and evaluation from the perspective of resource and environmental law.

The plaintiff, Lujiazui, believes that the actual pollution area and degree of the involved plot far exceed the pollution situation disclosed by Su Steel Group when it was listed, and claims that 14 out of the 17 plots investigated by third-party organizations are contaminated. The defendant, Su Steel Group, issued a statement stating that during the transfer of equity in 2016, Su Steel had truthfully disclosed the investigation results and full report of a third-party professional organization on the partial pollution of land under the name of Suzhou Green Bank, and clearly indicated in the asset evaluation report that some of the plots in this scope were originally steel coking production areas and may have soil pollution risks. In this incident, the investigation involved many third-party professional institutions, and the readers were "confused" for a while.

1、 The meaning, purpose, and how to carry out soil pollution investigation

（1） The meaning and purpose of soil pollution investigation

The Soil Pollution Prevention and Control Law stipulates the system for soil pollution risk control and remediation, which includes activities such as soil pollution status investigation and soil pollution risk assessment, risk control, remediation, risk control effect evaluation, remediation effect evaluation, and later management.

The Technical Guidelines for Investigation of Soil Pollution Status on Construction Land (HJ 25.1-2019 replaces HJ 25.1-2014) stipulate the meaning of soil pollution status investigation, which is the process of using a systematic investigation method to determine whether a plot is polluted, the degree and scope of pollution. The purpose of the survey is to provide basic data and information on soil pollution risk control and remediation for construction land. It can be seen that soil pollution investigation is a very important prerequisite work, which can determine the degree, scope, and causes of soil pollution. In terms of nature, the purpose of soil pollution investigation reports is to provide a basis for environmental management.

（2） How to conduct soil pollution investigation

HJ 25.1-2019 developed a technical roadmap, dividing the investigation into three stages: the first stage is the pollution identification stage, which confirms the possible presence of pollution and initiates the second stage, which is the pollution confirmation stage (divided into preliminary sampling and detailed sampling). The third stage is mainly focused on supplementary sampling and testing to obtain the parameters required for risk assessment and soil and groundwater remediation.

In theory, a soil pollution investigation report should be formed at each stage, presenting investigation conclusions, analysis, and opinions. The conclusion of the first stage investigation should try to clarify whether there are possible pollution sources within and around the plot. If there are possible pollution sources, the possible types, conditions, and sources of pollution should be explained. The conclusion and suggestions of the second stage should include the list of pollutants and the distribution characteristics of pollutants that the plot should pay attention to. In the third stage, relevant content and test data will be provided in accordance with the requirements of HJ 25.3 and HJ 25.4.

In practice, if the name of the investigation report is "preliminary investigation report", the investigation organization will usually specify that the investigation report corresponds to the preliminary sampling analysis stage of the first stage soil pollution survey and the second stage soil pollution survey in the technical roadmap.

What to investigate? Pollutants are the core. According to HJ 25.1-2019, in the investigation work, the pollutants that should be investigated are referred to as "pollutants of concern", which determines the pollutants that need to be investigated for soil pollution status and soil pollution risk assessment based on the pollution characteristics of the plot, relevant standard specifications, and stakeholder opinions. Therefore, soil pollution investigation does not detect all characteristic pollutants required by relevant technical specifications. The determination of "pollutants of concern" in HJ 25.1-2014 only considers the pollution characteristics of the plot and the opinions of stakeholders, which has a great deal of arbitrariness. Moreover, there were no relevant laws and mature standard technical specifications for soil pollution prevention and control at that time.

In addition, in response to the hidden and lagging characteristics of soil pollution, the principle of "seeking truth from facts" has been established in the review activities of soil pollution investigation reports. This means that in the implementation process of risk control, remediation, effect evaluation and other follow-up work, undetected pollution (including pollutants or pollution areas) may be found, and objective uncertainty and fraud should be correctly distinguished, and classified and processed. This work principle to some extent reflects the "scientific uncertainty" characteristics in the field of environmental protection, so the conclusion advocated by Lujiazui does not exclude the existence of fraud by companies such as Suzhou Institute of Environmental Sciences, and cannot be easily concluded.

（3） Summary

Through the above laws and technical specifications, we can understand:

In 2016, Suzhou Iron and Steel Group commissioned third-party institutions such as Suzhou Environmental Science Institute to issue preliminary investigation reports. In July 2022, Shanghai Environmental Science Institute commissioned by Green Bank Company issued preliminary investigation reports for plots 1, 3, 4, 5, 6, and 10, which only conducted preliminary sampling analysis, The Suzhou Branch of Nanjing University Environmental Planning Institute was commissioned to issue a Phase I Investigation Report on the Soil and Groundwater Environment of Plot 2 of Sudi 2008-G-6. The report shows that the above-mentioned plot has varying degrees of pollution and does not meet the original planning land standards for the plot.

In the 2022 ecological environment inspection, the local town government commissioned the Nanjing Environmental Science Institute to complete preliminary and detailed sampling, and issued investigation reports. It was proposed that the seven plots, including No. 1-6 and No. 10, should further implement soil pollution risk assessment activities in accordance with the requirements of the Soil Pollution Prevention and Control Law, prepare soil pollution risk assessment reports, analyze risk characteristics and levels, and guide the subsequent related work of the plots. It can be seen that the conclusions on which plots are contaminated in these two rounds of reports are still consistent.

3. However, Green Bank Company temporarily does not recognize the data and conclusions of Nanjing Institute of Environmental Science, and has entrusted the Central Environmental Protection Institute to conduct detailed investigations and risk assessments on plots 1, 2, 3, 4, 5, 6, and 10. This commission is not a denial of the results of the first two rounds, but a further detailed sampling investigation of the preliminary investigation conducted by Shanghai Institute of Environmental Protection, At the same time, compare the survey conclusions of the Nanjing Environmental Science Research Institute commissioned by the town government. That is to say, so far, the detailed investigation of soil pollution has not been completely completed or the detailed investigation report has not been disclosed.

2、 Key points of using soil environment investigation reports as evidence in civil litigation

In soil pollution liability disputes, soil pollution investigations can provide scientific basis for determining responsibility and compensation. Can these investigation reports be adopted when the case enters the litigation process? This article will analyze the possible problems that may exist in the investigation report of soil environmental conditions in civil litigation, in combination with relevant regulations.

（1） To be used as evidence for determining the presence of pollution

The Civil Procedure Law stipulates that eight types of evidence, including physical evidence and documentary evidence, must be verified to be true in order to serve as the basis for determining facts. Firstly, it should comply with the "three characteristics" of evidence. In accordance with the provisions of Article 2 and Article 5 of the "Several Provisions of the Supreme People's Court on Evidence in Civil Litigation of Ecological Environment Infringement" (Fa Shi [2023] No. 6), the plaintiff in environmental pollution liability dispute cases and ecological damage liability dispute cases shall bear the burden of proof for the defendant's behavior of polluting the environment or damaging the ecology, Evidence should be provided that there is a correlation between the defendant's behavior and the damage. The people's court shall, based on the evidence submitted by the parties, comprehensively judge whether the relationship between the defendant's behavior and the damage is established, taking into account factors such as environmental pollution, ecological damage behavior, the nature of pollutants, the type of environmental medium, the characteristics of ecological factors, temporal order, spatial distance, etc. We believe that, in conjunction with the purpose of soil pollution investigation, there are generally no issues with the determination of correlation in the investigation report.

Secondly, the soil pollution investigation report is classified as documentary evidence in civil litigation. The Several Provisions of the Supreme People's Court on Evidence in Civil Litigation divide documentary evidence into official document evidence and private document evidence. Obviously, as an investigation report by a third-party professional organization, even after being reviewed by the ecological environment department and the natural resources department, it is still private document evidence. Article 92 of the Evidence Regulations stipulates that the authenticity of private documentary evidence shall be borne by the parties who claim to prove the facts of the case through private documentary evidence. If a private document is signed, stamped or stamped by the producer or their agent, it is presumed to be true. If there are any deletions, alterations, additions or other forms of defects on private documentary evidence, the people's court shall judge its probative power based on the specific circumstances of the case. Therefore, there is some room for authenticity review of soil pollution investigation reports.

（2） Based on the provisions of civil litigation evidence and industry characteristics, detailed cross examination or examination points that can be referred to

In the field of ecological environment, reports such as environmental monitoring, environmental impact assessment, and soil pollution investigation reports may also be suspected of false reporting, which seriously violates the "three qualities" of evidence. In addition, there are other quality issues with reports that affect the "three qualities" of evidence. The former Ministry of Environmental Protection produced the "Guidelines for Evidence of Environmental Administrative Punishments" in 2010, which stipulated the key points for reviewing various types of evidence. Although this applies to administrative penalties and can also be directly used in evidence review activities in administrative litigation, it also has reference value in civil litigation, especially in the review points of documentary evidence, monitoring reports, and appraisal opinions, which are highly informative. We can summarize the key points of cross examination or examination in civil litigation for soil pollution investigation reports:

The investigation report on soil pollution involves signatures and seals from institutions and personnel.

Including (1) whether there is a seal from a professional organization and whether it is a genuine seal; (2) Is there a signature from personnel responsible for staffing, review, and issuance, and is it the signature of the individual; (3) Is there a national metrology certification mark (CMA) available; (4) Whether professional institutions have qualifications; (5) Whether the staff have professional qualifications and work certificates; (6) Are there any situations that professionals should avoid. It should be noted that there is currently no qualification requirement for institutions and personnel issuing reports in the field of soil pollution investigation, assessment, and remediation. But if the report is accompanied by a testing report, the participating testing institutions and personnel need to have qualification requirements.

2. The text of the soil pollution investigation report and whether it contains basic information.

Including: (1) judging whether there is forgery, alteration, alteration, addition or deletion, and whether it is consistent with the original; (2) The Soil Pollution Law and relevant technical specifications both specify the items that should be stated in the report, which is also the most core point of report review. The content of the soil pollution investigation report should include basic information about the plot, whether the soil has been contaminated, and whether the pollutant content exceeds the soil pollution risk control standards. If it exceeds, the investigation report should also include the type of pollution, the source of pollution, and whether groundwater has been contaminated. (3) In addition, it can also be judged whether it can be used as a basis for determining the facts of a case by examining whether the legal and institutional basis used in the report text is consistent with the purpose and name of the report, and whether there are serious contradictions in the conclusions and recommendations. For example, in the field of environmental impact assessment, the environmental impact assessment report for Shenzhen Bay waterway dredging found that another city's name "Zhanjiang" appeared 35 times, suspected of plagiarism and fraud.

3. Whether the procedures and methods for investigating soil pollution status comply with relevant standards and specifications.

In the first article series, we have introduced the effectiveness of national and industry standards for standard specifications. According to legal provisions, although industry standards are not mandatory standards, they are mandatory when cited by law. The Measures for the Management of Soil Environment in Polluted Land Sites (Trial) clearly require that soil pollution investigations be conducted in accordance with relevant national environmental standards and technical specifications, and the Soil Pollution Law clearly stipulates that soil pollution risk control standards are mandatory standards.

As of now, the number of soil pollution cases entering the field of civil litigation (including public interest litigation) is not huge. Reports related to soil pollution investigation, evaluation, etc., after cross examination, are usually used as the basis for determining the facts of the case.

（3） Can Article 25 of the Several Provisions be Expanded in Application

During the process of central ecological environment inspection, can third-party organizations commissioned by local people's governments (including township governments) directly apply the provisions of Article 25 of the Supreme People's Court's Several Provisions on Evidence of Civil Litigation for Ecological Environment Infringement (Fa Shi [2023] No. 6) to pollution investigation reports caused by soil pollution, The departments responsible for environmental and resource protection supervision and management, as well as their affiliated or commissioned monitoring agencies, collect monitoring data, form event investigation reports, inspection and testing reports, evaluation reports, and other materials during the administrative law enforcement process, as well as data obtained by public security organs alone or in conjunction with departments responsible for environmental and resource protection supervision and management by extracting samples for testing, which are verified by the parties involved, It can serve as a basis for determining the facts of the case.

That is to say, the local town government mentioned in the case entrusted the Nanjing Environmental Science Research Institute to issue an investigation report, and the local town government is neither the Lujiazui side nor the strict defendant. There are several issues that can be explored regarding whether Article 25 of the Several Provisions can be directly applied to this part of the report. Firstly, the central ecological environment inspection activities are not regulated by law, and the relevant institutional documents have both party regulations and administrative provisions, and are not strictly administrative law enforcement. Secondly, Article 25 of the Several Regulations specifies that the main body is the department responsible for environmental and resource protection supervision and management and its affiliated or commissioned monitoring institutions. Although the department responsible for environmental and resource protection supervision and management belongs to the local government at or above the county level, township governments usually cooperate with the county level to fulfill their environmental management responsibilities or accept law enforcement commissions from higher authorities in environmental management. Thirdly, soil pollution investigation is a systematic activity, including monitoring (detection) activities. The main body responsible for producing the report may not be the monitoring agency, but the investigation activities are mostly participated by the monitoring agency, and the text is accompanied by the testing report.

It can be seen that this part of the investigation report may or may not appear in the lawsuit, and it is also possible for it to serve as evidence for either party. There is also uncertainty in how to review and apply the rules of evidence.