Decree No. 113/2010/ND-CP on Determining Environmental Damage

DECREE

Provisions on Determining Environmental Damage

 _________________________

THE GOVERNMENT

Pursuant to the Law on Organization of the Government dated December 25, 2001;

Based on the Civil Code dated June 14, 2005;

The Prime Minister issues this Decision amending and supplementing certain provisions of the Regulation on Response Activities to Oil Spill Incidents issued together with Decision No. 02/2013/QĐ-TTg dated January 14, 2013 of the Prime Minister.

CONSIDERING THE PROPOSAL OF THE MINISTER OF NATURAL RESOURCES AND ENVIRONMENT,

DECREE:

PART I

GENERAL PROVISIONS

Article 1. Scope of Regulation

1. This Decree stipulates provisions on determining environmental damage including: collecting data and evidence to determine environmental damage, calculating environmental damage, and determining liability for compensating environmental damage caused by pollution and degradation in the following cases:

a) Water environment serving conservation, daily life, recreation, production, and other purposes is polluted, severely polluted, or extremely severely polluted;

b) Soil environment serving conservation, production, and other purposes is polluted, severely polluted, or extremely severely polluted;

c) Natural ecosystems within and outside nature reserves that have deteriorated;

d) Protected species under the law die or are injured.

2. This Decree does not apply to cases of environmental damage caused by any of the following reasons:

a) Caused by natural disasters;

b) Caused by force majeure or emergency situations that must comply with the requirements of competent state management agencies;

c) Other cases as provided by law.

3. The determination of damage and compensation for health, life of individuals, property and legitimate interests of organizations and individuals due to the consequences of environmental pollution and degradation shall be carried out in accordance with the provisions of civil law.

Article 2. Applicability

This Decree applies to organizations and individuals whose actions cause environmental pollution and degradation within the territory of the Socialist Republic of Vietnam, and other related organizations and individuals.

Article 3. Responsibility to Demand Compensation for Environmental Damage and Determination of Such Damage

1. People's Committees at all levels, organizations, and individuals who discover signs of environmental pollution and degradation have the responsibility to notify the competent authority to request compensation for environmental damage as prescribed in Clause 2 of Article 2 of this Decree.

2. The responsibility to demand compensation for damage is defined as follows:

a) People's Committee of communes has the responsibility to request compensation for environmental damage caused by pollution and degradation within their management area. In this case, the People's Committee of communes has the responsibility to request the People's Committee of districts to organize the collection and examination of data and evidence to determine environmental damage caused by pollution and degradation;

b) The People's Committee of the district has the responsibility to demand compensation for environmental damage caused by pollution and degradation in areas involving two communes, towns, or townships and above;

c) The People's Committee of the province has the responsibility to demand compensation for environmental damage caused by pollution and degradation in areas involving two districts, cities, or provincial-level cities and above;

d) The Ministry of Natural Resources and Environment has the responsibility to demand compensation for environmental damage caused by pollution and degradation in areas involving two provinces or centrally-administered cities and above.

3. The responsibility for collecting and examining data and evidence to determine environmental damage is defined as follows:

a) People's Committee of districts has the responsibility to organize the collection and examination of data and evidence to determine environmental damage caused by pollution and degradation within their area, except in the cases prescribed in points b and c of this clause;

b) People's Committee of provinces has the responsibility to organize the collection and examination of data and evidence to determine environmental damage caused by pollution and degradation in areas from two districts, towns, cities under provincial administration, and central municipalities under provincial administration within their management area, except in the cases prescribed in point c of this clause;

c) The Ministry of Natural Resources and Environment has the responsibility to organize the collection and examination of data and evidence to determine environmental damage caused by pollution and degradation in areas from two provinces, centrally-administered municipalities, and municipalities directly under the central government.

4. The agency responsible for collecting and examining data and evidence to determine environmental damage as prescribed in Clause 3 of Article 2 of this Decree has the responsibility to calculate damage, determine liability for compensating environmental damage, and provide results to the agency prescribed in Clause 2 of Article 2 of this Decree to request compensation for environmental damage.

5. The Ministry of Natural Resources and Environment guides procedures to implement requests for compensation for environmental damage as prescribed in Clauses 2, 3, and 4 of Article 2 of this Decree.

Chapter II

DATA AND EVIDENCE FOR DETERMINING DAMAGE

TO THE ENVIRONMENT

Article 4. Data and evidence for determining environmental damage

1. Data and evidence to be collected to determine organizations and individuals causing environmental pollution and degradation include:

a) Emission sources, activities causing environmental incidents, directly harming or related to the polluted or degraded environment area;

b) Basic information about organizations and individuals related to the polluted and degraded environment area including: type of activity; products, capacity, input materials; production process; waste; discharge point; waste treatment measures; monitoring and analysis of environmental parameters;

c) Other necessary data and evidence related to the polluted or degraded environment area.

2. Data and evidence to be collected or estimated to calculate environmental damage in cases of water and soil pollution include:

a) Area, volume, quantity of polluted water and soil;

b) Pollutants and their concentrations in water and soil;

c) Decisions, permits, documents of competent state management agencies prescribing the use or approval of planning for the utilization of environmental components such as water and land where pollution and degradation occur.

3. Data and evidence needed to be collected or estimated to calculate environmental damage in cases of natural ecosystem degradation include:

a) Area of degraded natural ecosystems;

b) Degree of degradation of natural ecosystems;

c) Decisions, documents of competent state management agencies prescribing the degree of conservation of natural ecosystems.

4. Data and evidence to be collected or estimated to calculate environmental damage in cases of protected species being injured or killed according to the law include:

a) Protected species that are injured or killed;

b) Number of injured or dead individuals of protected species;

c) Decisions, documents of competent state management agencies prescribing the degree of protection of species.

Article 5. Forms and timing for collecting data and evidence to determine environmental damage

1. Data and evidence to determine environmental damage may take the form of: images, tapes, data obtained from monitoring, measurement, analysis, remote sensing, geographic information systems, and other forms.

2. Data and evidence to calculate environmental damage must be collected or estimated at the time when the environment is polluted and degraded at its highest level since the occurrence or at the time when the polluted and degraded environment is discovered.

Article 6. Procedures and processes for collecting and verifying data and evidence to determine environmental damage

1. The organization of collecting and verifying data and evidence to determine environmental damage shall be carried out in accordance with the following procedures and processes:

a) Identifying types of data and evidence needed to determine environmental damage and compensation for such damage;

b) Selecting service providers for monitoring, assessment, and measurement to collect data and evidence;

c) Organizing a verification board for the collected data and evidence.

2. The Ministry of Natural Resources and Environment prescribes criteria for selecting and responsibilities of service providers for monitoring, assessment, and measurement to collect data and evidence; guides the establishment and operation of the data and evidence examination board.

Article 7. Documents for Claiming Compensation for Environmental Damage

1. The documents for claiming compensation for environmental damage include:

a) A document requesting compensation for damage issued by the competent authority prescribed in Clause 2 of Article 3 of this Decree;

b) Data and evidence that have been collected and examined according to the provisions of Clause 3 of Article 3 and Clause 1 of Article 6 of this Decree;

c) The conclusion report of the data and evidence verification board;

d) Results of calculating environmental damage and conclusions on liability for compensating environmental damage;

đ) Other documents and materials as prescribed by law.

2. The Ministry of Natural Resources and Environment shall guide the model of documents for claiming compensation for environmental damage.

Article 8. Responsibility for Providing Data and Evidence to Determine Environmental Damage

Organizations and individuals related to the polluted and degraded environment area, People's Committees at all levels in the polluted and degraded environment area have the responsibility to cooperate, provide complete, accurate, and timely data and evidence as required by the agency organizing the collection and examination of data and evidence prescribed in Clause 3 of Article 3 of this Decree.

Article 9. Costs for Determining Damage and Procedures for Claiming Compensation for Environmental Damage

1. Costs for determining damage and implementing procedures to request compensation for damage are actual and reasonable costs for activities conducted by the competent authority to organize the collection and examination of data and evidence to serve the determination of environmental damage and the implementation of procedures to request compensation for environmental damage.

2. During the process of determining damage and implementing procedures to request compensation for damage, the agency organizing the collection and examination of data and evidence prescribed in Clause 3 of Article 3 of this Decree has the responsibility to advance funds for determining damage and implementing procedures to request compensation for damage, consolidate these costs as the basis to request organizations and individuals causing damage to repay during the process of resolving compensation for damage as prescribed in Clause 1 of Article 14 of this Decree.

3. The Ministry of Natural Resources and Environment, in collaboration with the Ministry of Finance, shall specify detailed regulations on costs for determining damage and procedures for claiming compensation for environmental damage.

Chapter III

CALCULATION OF ENVIRONMENTAL DAMAGE

Article 10. Principles for Calculating Environmental Damage

1. Calculating environmental damage is based on the cost of remedying pollution and degradation and restoring the environment at the location of pollution and degradation to meet technical standards for water quality and soil quality; the cost to restore ecosystems and protected species to their original or equivalent state.

2. The calculation of environmental damage is based on data and evidence collected, estimated, and verified according to the provisions of this Decree.

3. Environmental damage in a geographic area is the sum of damage to each component of the environment in that geographic area.

Article 11. Calculation of Environmental Damage

1. The total damage caused by pollution and degradation to the environment of a geographic area is calculated using the following formula:

T = TN + TĐ + THST + TLBV, wherein:

T is the damage caused by pollution and degradation to the environment of a geographic area;

TN is damage caused by pollution and degradation to the water environment;

TĐ is damage caused by pollution and degradation to the soil environment;

THST is damage caused to the ecosystem by pollution and degradation;

TLBV is damage caused to protected species due to pollution, degradation, or harm;

2. Damage caused by pollution and degradation to the water environment is defined as follows:

a) In cases where the water environment is only designated for a single purpose and is only polluted at one level, the damage caused by pollution and degradation is calculated using the following formula:

, including:

i is the purpose of water environment use based on decisions, permits, documents from competent state management agencies allowing use or approving water environment use plans at polluted or degraded sites, with values ranging from 1 to 7 as stipulated in Appendix I of this Decree;

j is the degree of water environment pollution based on collected data and evidence evaluated according to this Decree, with values ranging from 1 to 3 corresponding to levels of pollution, severe pollution, and extremely severe pollution;

is damage to water environments with purpose of use (i) polluted at level (j);

is the adjustment factor for damage based on water environment use purpose as specified in Appendix I of this Decree;

is the total volume of water used for purpose (i) polluted at level (j) determined, estimated, and evaluated according to this Decree;

is the standard cost for treating a unit area, volume, or quantity of polluted water at level (j) to meet environmental technical standards for water quality;

b) In cases where the water environment is only designated for one purpose but includes areas with different degrees of pollution, damage caused by pollution and degradation to the water environment equals the total damage to each area with different pollution levels, calculated using the following formula:

, including:

is damage to the water environment designated for purpose (i);

c) In cases where the water environment is simultaneously designated for multiple purposes, the highest value adjustment factor for damage based on use purpose is applied to calculate damage using the formulas in points a and b of this clause;

d) In cases where the water environment is divided into multiple areas for different purposes, damage caused by pollution and degradation to the water environment equals the total damage caused by pollution and degradation to each area of the water environment;

Damage caused by pollution and degradation to each area of the water environment is calculated using the formulas specified in points a, b, and c of this clause and based on collected data and evidence evaluated according to this Decree;

3. Damage caused by pollution and degradation to the soil environment is defined as follows:

a) In the case where the soil environment is only designated for one purpose and is polluted at a certain level, the damage caused to the soil environment due to pollution and degradation shall be calculated according to the following formula:

, including:

i is the purpose of land environment use based on decisions, permits, documents from competent state management agencies allowing use or approving land environment use plans at polluted or degraded sites, with values ranging from 1 to 5 as stipulated in Appendix II of this Decree;

j is the degree of land environment pollution based on collected data and evidence evaluated according to this Decree, with values ranging from 1 to 3 corresponding to levels of pollution, severe pollution, and extremely severe pollution;

is damage to the land environment with purpose of use (i) polluted at level (j);

is the adjustment factor for damage based on land environment use purpose as specified in Appendix II of this Decree;

is the total volume of land used for purpose (i) polluted at level (j) determined, estimated, and evaluated according to this Decree;

is the standard cost for treating a unit area, volume, or quantity of polluted land at level (j) to meet environmental technical standards for land quality;

b) In cases where the land environment is only designated for one purpose (i) but includes areas with different degrees of pollution, damage caused by pollution and degradation to the land environment equals the total damage to each area with different pollution levels, calculated using the following formula:

, including:

is damage to the land environment designated for purpose (i);

c) In cases where the land environment is simultaneously designated for multiple purposes, the highest value adjustment factor for damage based on use purpose is applied to calculate damage using the formulas in points a and b of this clause;

d) In cases where the land environment is divided into multiple areas for different purposes, damage caused by pollution and degradation to the land environment equals the total damage caused by pollution and degradation to each area of the land environment;

Damage caused by pollution and degradation to each area of the land environment is calculated using the formulas specified in points a, b, and c of this clause and based on collected data and evidence evaluated according to this Decree;

4. Damage caused to ecosystems due to pollution and degradation is defined as follows:

a) In the case where an ecosystem is only designated for one conservation level and is degraded at one level, the damage caused to the ecosystem due to pollution and degradation shall be calculated according to the following formula:

, including:

i represents the conservation level of the ecosystem according to decisions or documents issued by competent state management agencies, with a value ranging from 1 to 4 as stipulated in Appendix III of this Decree;

j is the degree of ecosystem degradation based on collected data and evidence evaluated according to this Decree and according to laws on determining the degree of ecosystem degradation;

is the adjustment factor for damage according to the conservation level of the ecosystem as specified in Appendix III of this Decree;

is the adjustment factor for damage based on the degree of ecosystem degradation as stipulated by law;

is the total area of ecosystems designated with conservation level (i) degraded at level (j) determined, estimated, and evaluated according to this Decree;

is the standard cost for restoring a unit area of ecosystems designated with conservation level (i) degraded;

b) In cases where the ecosystem is only designated one conservation level but includes areas degraded at different levels, damage caused by pollution and degradation to the ecosystem equals the total damage to areas degraded at different levels, calculated using the following formula:

, including:

is damage to the ecosystem designated conservation level (i);

n is the total number of degradation levels as provided by laws on determining the degree of degradation of ecosystems;

c) In cases where the ecosystem is divided into multiple areas with different conservation levels, damage caused by pollution and degradation to the ecosystem equals the total damage caused by pollution and degradation to those areas;

Damage caused by pollution and degradation to each area of the ecosystem is calculated using the formulas specified in points a and b of this clause and based on collected data and evidence evaluated according to this Decree;

5. Damage caused to protected species due to pollution and degradation is defined as follows:

a) In case an animal species protected under the law suffers death or injury, the damage caused to that protected species due to pollution or degradation shall be calculated according to the following formula:

, including:

k represents the protected species whose individuals have died or been injured due to pollution and degradation of the environment or due to harm;

where (k) is the adjustment factor for damage based on the level of protection afforded to the species as stipulated in Appendix IV of this Decree;

where (k) is the number of individuals of the protected species that have died, determined, estimated, or appraised in accordance with this Decree;

where (k) is the standard cost for restoring or replacing one individual of the protected species that has died;

is the number of individuals of the protected species (k) that have been injured, determined, estimated, and appraised according to this Decree;

where (k) is the standard cost for rescue and care to restore the health of one individual of the protected species that has been injured;

b) In cases where multiple protected species suffer death or injury, the damage caused to protected species due to pollution or degradation shall be the total of damages caused to each protected species due to pollution, degradation, or harmful acts.

The damage caused to each protected species due to pollution or degradation shall be calculated according to the formula prescribed in point a, Clause 5 of this Article.

Article 12. Degree of ecological degradation and cost standards for pollution control and environmental restoration

1. The Ministry of Natural Resources and Environment shall guide the determination of the degree of ecological degradation to calculate environmental damage.

2. The Ministry of Natural Resources and Environment shall take the lead and coordinate with the Ministry of Finance to establish the standard costs for treating a unit area, volume, or quantity of polluted water or soil to meet environmental technical standards for water and soil quality as provided in points a, Clause 2, and point a, Clause 3 of Article 11 of this Decree; the standard costs for restoring a unit area of degraded ecosystems as provided in point a, Clause 4 of Article 11 of this Decree; and the standard costs for restoring or replacing one individual of a protected species that has died and the standard costs for rescue and care to restore the health of one individual of a protected species that has been injured as provided in point a, Clause 5 of Article 11 of this Decree, which shall serve as the basis for calculating environmental damage.

Chapter IV

DETERMINATION OF LIABILITY FOR COMPENSATION OF DAMAGE

TO THE ENVIRONMENT

Article 13. Principles for determining liability for environmental damage compensation

1. The identification of organizations and individuals causing environmental pollution and degradation shall be carried out according to the following main principles:

a) Pollution and degradation in a natural geographic area is caused by waste sources or harmful actions within that area or outside it but affecting that area;

b) There must be scientific evidence establishing a link between pollutants that may originate from waste sources or harmful actions and the reduction in function and usefulness of the environment;

c) The identification of organizations and individuals causing environmental pollution and degradation must ensure timeliness and fairness.

2. Organizations and individuals causing environmental pollution or degradation must compensate for all environmental damage caused by themselves, and at the same time must pay all costs for determining the damage and procedures for requesting compensation for damage as stipulated in Clause 2 of Article 9 of this Decree.

3. Where there are two or more organizations or individuals causing environmental pollution or degradation, the liability for compensating environmental damage, the responsibility for paying costs to determine the damage, and the procedures for requesting compensation for damage of each organization or individual shall be determined proportionally to their respective share of the total environmental damage.

4. Organizations and individuals who fully comply with laws on environmental protection, have waste treatment systems meeting requirements, and can prove that they did not cause environmental pollution or degradation shall not be required to compensate for environmental damage and shall not bear related costs for determining the damage and procedures for requesting compensation for damage.

5. The Ministry of Natural Resources and Environment shall guide the procedures and methods for proving that organizations and individuals did not cause environmental pollution as stipulated in Clause 4 of this Article.

Article 14. Resolution of Environmental Damage Compensation

1. Based on data, evidence, and results of damage calculations, the agency specified in Clause 2 of Article 3 of this Decree shall decide to settle compensation through the following forms:

a) Negotiating compensation with the party causing damage;

b) Requesting arbitration to resolve;

c) Initiating litigation before the court.

2. The agency specified in Clause 2 of Article 3 of this Decree may use the compensation amount after deducting the costs for determining the damage and procedures for requesting compensation for damage to invest in remedying pollution, restoring degraded areas, and improving the environment where pollution or degradation occurred.

3. In cases where pollution or degradation occurs in the territory of two or more provinces or centrally-administered cities, the compensation amount after deducting the costs for determining the damage and procedures for requesting compensation for damage shall be transferred to the Vietnam Environmental Protection Fund to invest in remedying pollution, restoring degraded areas, and improving the environment where pollution or degradation occurred.

Chapter V

IMPLEMENTING PROVISIONS

Article 15. Effective Date

1. This Decree takes effect from January 18, 2011.

2. Acts causing environmental pollution or degradation leading to environmental damage occurring after the Environmental Protection Law of 2005 took effect but were not compensated for shall be determined and compensated for in accordance with the provisions of this Decree.

3. The Ministry of Natural Resources and Environment shall be responsible for guiding the implementation of this Decree.

4. Ministers, Heads of ministerial-level agencies, Heads of agencies under the Government, Chairpersons of provincial People's Committees, and relevant organizations and individuals are responsible for implementing this Decree./.