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Amended Water Pollution Control Act

Taiwan's Water Pollution Control Act (the "WPCA" or the "Act") has been amended on February 4 of 2015 and December 7 of 2016. Below is a summary of the amendments:
I.        The February 2015 amendments to the WPCA was to strengthen risk prevention and management, to increase criminal liabilities and penalties of violations, to confiscate illicit profit, to encourage whistleblowing and to make relevant information available to the public.  The following are the key amendments:
1.      Article 2 of the WPCA has been amended to include "companies" into the definition of the defined term and regulatory subject "enterprise" in this Act. This change aims to clarify the dispute over the determination of "a representative of an enterprise", which could arise when a representative of a company might evade responsibility by appointing a third party to serve as the representative of the factory of said company. After such amendment, "representatives of companies" are now also subject to the regulations under the Act.
2.      Article 14 and 15 of the WPCA originally allow institutions that have been appointed by the central competent authority to issue permits for discharging wastewater. However, since such permits can only be issued after reviewing factors such as the water quality, water pollution status and the water remediation progress, these two Articles have been amended so that only local authorities, not the appointed institutions, may approve and issue wastewater discharge permits.
3.      Article 14-1 has been added to the WPCA to specify that certain enterprises shall disclose the pollutants and their concentration in their wastewater discharges in order for the authority to understand and monitor such pollutants. Meanwhile, when the discharged wastewater contends pollutants beyond the effluent standard, this new Article also provides that enterprises shall submit a risk assessment and management report under certain circumstances.
4.      Article 18-1 has been added to prohibit illicit discharges, dilution of wastewater, and to encourage the implementation of standard wastewater treatment before discharges. The foregoing content was originally included in the Water Pollution Control Measures and Test Reporting Management Regulations, but after this amendment, such regulations have been elevated into laws. Furthermore, Article 46-1 has also been added to specify the penalties for the violation of Article 18-1.
5.      Article 27 and 28 of WPCA have been amended to stipulate that the regulatory authority shall order an enterprise to cease operation or shut down in the event that such enterprise has severely polluted the underground sewer system with its wastewater discharges and that the severity of pollution has not subsided after implementing the emergency response, or in the event that such enterprise has severely polluted the body of water due to leakages in its wastewater transportation or storage equipment. Furthermore, Article 34 has been added to specify the criminal penalties for enterprises that fail to immediately implement the emergency response or fails to cease their operations per the regulatory authority's requests, whether or not such enterprises' violations have caused actual damages.
6.      Article 36 of the Act has been amended so that all wastewater discharges that contain over-the-limit hazardous substance will subject to criminal penalty, whether the violators have the wastewater discharge permits or not. But violators without discharge permits will face heavier penalties.
7.      Article 37 of the WPCA raises the sentence and fine for enterprises that fail to immediately implement the emergency response or cease their operations per the regulatory authority's requests (violations of Article 27 of the Act), and enterprises whose wastewater discharges do not comply with the effluent standards (violations of Article 7) have caused death, serious injuries, diseases, and harms to human health or the environment.
8.      With the raising of penalties in the Act, Article 39 has also been amended so that legal or natural person will also be subject to higher fines in the event that its representative has violated the Act. Moreover, additional rules have been included regarding the confiscation of illicit profits from the violations of the Act to avoid fraudulent conveyance.
9.      Article 40 and Article 46-1 have been amended and added respectively for purpose of effectively curtailing the acts of non-compliance, illicit wastewater discharge and dilution, failure to maintain adequate wastewater discharge capability and equipment, and failure to implement standard treatment procedures before wastewater discharges. The cap of the fine for the foregoing violations have been raised from NT$600,000 to NT$20 million. Also, Article 41, 43, 45-54, and 56 have been amended to increase the fines by 10 times in order to prevent violations that can cause substantial pollution.
10.   Article 66-2 has been added to specify rules on confiscating illicit profit from the violations. In addition to imposing fines, the violator's illicit profits from the violations will be confiscated.
11.   Article 63-1 has been added to ensure that relevant information is available to the public so citizens can also participate in supervising the enterprises. This new Article stipulates that enterprises who had been forced to cease operation for violations, have to lay out their improvement plans regarding their wastewater/sewage sludge treatment on the designated website for their business resumption reviews; during the review process, stakeholders and NGOs shall have opportunities to express their opinions for the authority's reference. Article 69 has also been amended to provide that enterprises shall make public on the designated website their wastewater pollution control permits (documents), application materials and their technicians' license numbers. The authorities may disclose the inspection results and decisions made regarding the enterprises.
12.   Article 73 of the WPCA has been amended to stipulate that violators of the Act may not enjoy any of the government's favorable treatments; this amendment is implemented to incorporate the same rules in the Tax Collection Act and the Statute for Industrial Innovation.
II.      The amendments to the WPCA made in December/2016 was implemented mainly to incorporate the changes in the Criminal Code, which specify that the Criminal Code now applies to all subject matters related to the confiscation, recovery, reimbursement and compensation of payments in all laws of Taiwan; no other rules or regulations will have to be promulgated for such purposes. Subparagraph 3, Paragraph 2, Article 39 of the WPCA is therefore deleted.
The aforementioned amendments substantially raise the enterprises' responsibility on preventing pollution and also increase the risk of being shut down, forced to cease operation, or criminal punishment. Therefore, we recommend that relevant enterprises shall re-evaluate the wastewater treatment and equipment management and procedures within the company or factory, in order to improve the processes for environmental protection and to ensure compliance with the amended WPCA.