The newly added regulation in the revised Toxic and Concerned Chemical Substances Control Act, announced on 16 January 2019, sets in place the appropriation of illegal gains obtained from violating the Act, on top of fines. Hence, the EPA accordingly has formulated the Regulations Concerning Calculation and Estimation of Illegal Gains from Violating the Toxic and Concerned Chemical Substances Control Act. It will serve as a calculating and estimating reference for competent authorities, to help uphold justice and confiscate illegal gains.  

The EPA explained that fines have been the most commonly applied penalty for past violations of environmental regulations. Fine amounts are based on Article 18 Paragraph 2 of the Administrative Penalty Act Illegal gains could be considered fines if they exceed the maximum fine. Yet this method lessens or spares penalties for the violators, even though the illegal gains are in fact confiscated. Not only is it in no way environmental justice, but it also does not lead to fair corporate competition. For cases involving long-term or major violations, there may be conspicuous benefits in terms of assets (such as profiting from the use of toxic chemical substances whose use is restricted or banned pursuant to the Act) as well as inconspicuous benefits, or the costs that should have been incurred but were avoided. If these gains are not confiscated, there would be loopholes when penalties are imposed. Enterprises would then calculate the act of violating regulations to be more profitable, further leading to repeated offenses that cannot be deterred. 

The EPA emphasizes that for policy guidance there is the UNFCCC, the ongoing global action against climate change, and also the Voluntary Guidelines for Sustainable Soil Management published in 2017 by the UN Food and Agriculture Organization (FAO). Besides listing soil pollution prevention or reduction as one of the nine sustainable soil management indices, the guidelines point out that healthy soil is significant in increasing carbon absorption, lowering greenhouse gas levels, ensuring food production safety, and improving water resource management. After combining relevant conventions and content discussed among signatories, the EPA is striving towards promoting soil’s function of mitigating climate change and designing sustainable management strategies based on each department’s implementation and resources. Moreover, collaboration and research with other countries is underway, with more international experts involved and measures implemented in other countries as references, aiming to intensify soil pollution prevention and promote its environmental functions and utilization. Finally, the EPA is calling on the public to protect this most precious resource and ultimately maintain and foster sustainable and healthy soil.   

The EPA went on to elaborate on the contents of the Regulations, which include reminding competent authorities of violations for illegal gains are to be confiscated; and the types, calculation, and estimation of conspicuous, inconspicuous, and total profits. Other than data for references, information sources, and confiscation periods, the Regulations also concern the burden of proof, relevant authorities’ responsibilities to assist in investigations, experts as assistant auditors, coordination mechanisms, and more. All of the above can serve as bases for competent authorities to confiscate illegal gains and make calculations based on the actual circumstances of individual cases. 

Excerpt from Environmental Policy Monthly, 23 (1)