33 ELR 10290 | Environmental Law Reporter | copyright © 2003 | All rights reserved

Environmental Law Enforcement and the Restoration of Contaminated Sites in Japan

Yasushi Tsuchiya is a member of the New York Bar. He currently works as an analyst in the Environmental Solution Consulting Department at Asahi & Co., an alliance member of KPMG in Japan. He received his L.L.M. from the University of Pennsylvania Law School in 1999.

[33 ELR 10290]

Like other developed countries, Japan faces a serious soil contamination problem. Much of Japan's legal history, however, has failed to address the serious issue of soil contamination because Japanese environmental law focuses on human compensatory damages, injunctive relief, and environmental regulations to prevent further pollution. Unlike flow pollution,¹ which can be lessened when the source of that pollution is regulated, the damage from soil contamination is accumulative and infringes upon the human environment unless and until it is completely eliminated. In addition, most contaminated sources are created by past activities, and most of the responsible parties are out of business or have no ability to pay damages. Therefore, it is often useless to order an expensive restoration action. Due to the different nature of contamination, many deficiencies exist in the law and governmental structure. Soil contamination has long been regulated through the control of air and water. In addition, as long as harm from toxic substances does not migrate to another's property, landowners cannot be ordered to take appropriate measures under Japanese law.

First, this Article briefly discusses the background and development of Japanese environmental law. Second, the Article explains the present state of soil contamination in Japan. Third, deficiencies in Japan's handling of soil contamination problems are considered. And lastly, using U.S. environmental law history as a reference, the Article suggests means to improve environmental enforcement in Japan.

An Overview of Environmental Law in Japan

Due to rapid capitalization and highly concentrated industrialization in the post-war era, Japan has confronted numerous environmental problems and was once dubbed a "Pollution Kingdom." Looking back on Japanese environmental history, three stages of environmental regulation can be identified: (1) judicially awarded compensation for injuries suffered; (2) regulation and control of pollution by administrative agencies; and (3) economic incentives by industry and outside interests.

Under the first stage, the judicial branch, rather than the administrative branch, assumed a primary role in Japanese environmental improvement, primarily because of the difficulty in identifying pollution sources due to scientific insufficiencies. There was a lack of clear evidence of causation between pollutant substances and disease as well as a lack of administrative procedure. Also, administrative agencies were afraid to release information to the public due to corporate noncooperation and uncertainty about the accuracy of the information. Due to scarce persuasive evidence and the difficulty in identifying causation because of the immature nature of epidemiological studies at that time, agencies could not make an appropriate order or take necessary measures to solve pollution problems. In other words, they did not know what to do or how to do it because pollution problems were so complicated. Moreover, it took a long time to share accurate pollution information with the public. As a result of the public's lack of knowledge, certain diseases were prevalent all over the country. Under these circumstances, victims of pollution had no choice but to seek their own remedies through lawsuits. Despite having the same difficulties as administrative agencies, the judicial branch resolved the pollution problems more practically.

A revolution in Japanese environmental law first occurred in the 1970s as a result of four benchmark pollution lawsuits in which the plaintiffs sought compensation under tort law.² During this period, Japanese judges and scholars developed techniques for interpreting civil law. By creating new legal principles and concepts such as epidemiological causation and the expansion of joint and several liability, the judicial branch addressed compensation in pollution cases. Because at this stage plaintiffs pursued polluters under tort law, tort law and its development in civil law is fundamental to a discussion on Japanese environmental law.

Under the second stage of environmental improvement, and in accordance with strong judicial incentives set by the benchmark cases, a new administrative compensation system for environmental injuries was established.³ Many pollution control acts were vigorously enacted to prevent further pollution. Often referred to as "command-and-control," [33 ELR 10291] these regulations established stringent emission standards by setting minimum environmental safety levels for industrial emissions. These administrative orders and sanctions were an innovative instrument in Japanese environmental law. In order to pass the emission goal, industry, along with government officials, worked together to develop feasible technology with which industry could meet the new emissions regulations. In a sense, this approach and subsequent technological developments were successful in preventing further pollution, reducing further health problems, and providing environmental protection to a certain extent.

The third stage of environmental improvement was the creation of business incentives. Separate from efforts to actively regulate domestic pollution, particularly after the 1973 oil crisis, many Japanese industries were encouraged by government officials to produce energy-saving technologies and products.⁴ Moreover, air pollution was drastically reduced due to U.S. passage of the Clean Air Act Amendments of 1970 and the implementation of the Act by state laws that, for example, reduced automobile exhaust emissions.⁵ These amendments motivated the Japanese car industry, a leading manufacturer and contributor of economic development in Japan, to manufacture low-level emission cars for export. At the same time, however—due to the international division of labor under the global economy—many Japanese manufacturers transferred most of their manufacturing process to global sites, primarily to third-world countries. This allowed them to hire cheap labor forces and to work under looser environmental regulations, which saved them from further environmental investment. Since the transferred manufacturing process inevitably created pollution in third-world countries, many pollution cases are now being reported in the host countries.⁶

Throughout these three stages, the Japanese environment has improved significantly. The 1997 White Paper on Environment, an annual official report by the Japanese Ministry of the Environment (formerly known as the Environment Agency (EA)), indicates that typical types of pollution, such as air and water, have been decreasing each year.⁷ However, Japan must focus on patent and latent gradual soil and groundwater contamination caused by hazardous substances. In the past, the judicial branch adopted new legal concepts to address clearly suffering victims. As a result, Japanese law functions properly only when there are obvious pollution disputes or serious health injuries, and when it does address such problems, it does so only as a regional matter.⁸ Therefore, even though soil and groundwater contamination inevitably causes long-term health damage, as long as the damage caused by such contamination affects a wide area and not a small specific area, and as long as such contamination causes no serious immediate harm or damage, current environmental law in Japan will not adequately address it. Another cause for the failure of Japanese environmental law to address soil contamination is that, historically, open dumping in facilities was not broadly recognized as a common method of discharge. Since Japan is surrounded by the sea, air and water discharge was regarded as a popular disposal method, and, therefore, pollutants were rarely disposed of on the land. Also, it was broadly believed that as long as pollution control was stringent and prevented future pollution, the environmental quality would improve because the ecosystem would purify the contaminated environment. In other words, the contaminated environment needed to be restored only if the situation was beyond the reach of the ecosystem's capability.

Due to the Japanese society's lack of knowledge regarding environmental issues, comprehensive environmental law regarding soil and groundwater contamination has not been enacted, and Japan has not developed the necessary administrative procedures or a legal theory of restoration. In the absence of comprehensive environmental laws, Japan makes full use of alternative laws to handle soil and groundwater contamination.

Soil Contamination in Japan

New Types of Hazardous Substances and Soil Contamination

Although chemical development over the last two decades has provided numerous synthetic organic compounds, the patent and latent nature of chemical compounds is scientifically unproven. In the past, soil contamination first surfaced as mining pollution caused by the inappropriate discharge or accumulation of hazardous substances such as heavy metals, polychlorinated biphenyls (PCBs), cadmium, or chromium on the land through water and air. Because contaminants of soil contamination are mostly heavy metals, their harm does not spread across broad areas, thus, the harm is only seen in limited areas.

In addition to these substances, new types of toxic chemical compounds, such as trichloroethane (TCE), cause serious soil contamination due to their carcinogenic nature and high permeability in soil and groundwater. Unlike heavy metals, these new toxic chemical compounds infiltrate the ecosystem deeply and widely, and, consequently, actual damage to humans and the environment takes considerable time to emerge. In addition, hazardous substances in soil cannot be purified solely by the ecosystem, and the contamination will spread until it is thoroughly eliminated. When actual damages are exposed, it is often too late to restore the environment. Although Japan did not use these new compounds until recently, the country has produced and imported them in huge amounts, and estimated consumption is now significant. Both private and government sectors have broadly used such substances without actual knowledge of their danger. What is more, because organic compounds are [33 ELR 10292] broadly used, rural areas as well as urban areas are or will become contaminated.

Legal and Cultural Difficulties of Locating Contaminated Sites

The latest study by the EA indicates that there were 134 soil contamination sites above the national standard reported in 2001. From 1975 to 2001, 1,097 soil contamination sites were reported. Among these, 574 are contaminated above the national standard with hazardous substances such as heavy metal lead.⁹ These figures, when compared to other developed countries, likely do not accurately reflect the actual amount of contaminated sites in Japan. In 1998, a report stated that 304,541 potentially contaminated sites were located in Germany.¹⁰ In 1994, there were 425,000 potentially contaminated sites in the United States according to an estimate by the U.S. General Accounting Office.¹¹ Because it has experienced similar economic development, the number of potential soil contamination sites in Japan should be the same as in Germany and the United States, or much higher, despite its small size.

Throughout the environmental history of Japan, soil contamination cases were barely brought to light until recently. One main reason is the difficulty in perceiving the actual harm. Although the polluter usually is not difficult to identify, in most cases people do not identify the actual damage from soil contamination for a long time in spite of its harm through air, water, or food.

Another reason for the lack of restoration is the strict legal doctrine of fee simple absolute, which is based on cultural property rights. In Japanese law, a real property right is an exclusive right held by the owner of the land. Due to the country's geographically limited area, it has been very difficult for the government to regulate or limit property rights after modernization. Under these circumstances, undertaking a site investigation on private land has been extremely difficult without the owner's permission. Furthermore, even if contamination exists, as long as the contamination remains within private property boundaries, no law exists to address the contamination. Also, until recently, groundwater was regarded as private property on land. In fact, private citizens own most of the potentially contaminated sites.¹² In addition, pollution may migrate from distant sources, and multiple polluters may contribute to contamination. And because of the technological infeasibility of locating pollution sources, appropriate measures for groundwater contamination has fallen behind.

Corporate secrecy also contributes to the lack of contamination restoration. For a long time, generators disposed of their hazardous waste and consumed chemical compounds on their property. However, since there was no obligation to disclose on-site disposal and consumption amounts, little data is actually available for the public. In the absence of right-to-know statutes and a manifest system for transportation and storage, even if generators did know that contamination existed on their property, they would rather not disclose the fact.¹³ Thus, concerned citizens only knew of such disposal techniques and subsequent contamination when employees of the polluter leaked confidential information, when workers received significant health damages in compensation claims, or when obvious contamination actually emerged. In fact, pollution leakage or seepage is still regarded as a reliable source for revealing contamination.

On the other hand, some local governments have refused to admit the existence of contamination due to cost. Even after contamination was exposed, they tried to underestimate the danger in order to avoid a necessary environmental cleanup action. In fact, active restoration depends on the local citizens' dependence on groundwater as a drinking water supply or their attachment to pure water and on the maintenance of local environmental ordinances. At present, it is reported that some local governments, which are entirely dependant on tap water systems, are still indifferent to groundwater contamination.¹⁴ Also, local governments' dependence on the alleged polluter for employment and taxes diminishes the incentive to initiate the restoration procedure. Due to the recent high yen, the division of labor, and the transfer of the manufacturing process abroad, some local governments have become more sensitive to prosecuting the responsible polluter in order to secure local interest.¹⁵ Under such circumstances, only big firms can voluntarily take a restoration action.

In sum, the lack of any obligation to disclose on-site contamination, dependence on tap water, contamination by past activities from unidentified parties, and funding problems are the main reasons why Japan's efforts to adopt standards for restoring contaminated sites has fallen behind.

Technological Site Location and Detection

In the absence of a uniform environmental audit standard, comprehensive data of soil contamination is generally scarce and irregular. Nevertheless, causes of soil contamination can be categorized according to five types: (1) contamination from present or past operations that used hazardous substances such as gilding, dry cleaning, and the high-tech industry; (2) present contamination caused by hazardous wastes leaking from both operating and closed landfills; (3) contamination leaking from sites that were inadequately remediated in the past; (4) present operation of incineration facilities; and (5) illegal dumping.¹⁶ Among these causes of soil contamination, past and present industrial [33 ELR 10293] facilities (so-called brownfields) and incineration facilities account for most of the contaminated sites. There are others, however. Golf courses using coagulants for their foundation and pesticide use for lawn care have caused soil and groundwater contamination. Pesticides also cause soil contamination within agricultural fields. Gas stations and oil refinery facilities cause soil contamination from their operation and refinement processes. Also included in this list are past and present Japanese and U.S. military facilities and abandoned coal mining sites.

Contaminated sites, in particular brownfields, are often identified shortly after initiation of redevelopment or sale,¹⁷ or else when a municipality conducts a land audit. Local citizens, facility owners, and landowners also report possible contamination. In addition, since the enactment of the Water Pollution Control Law,¹⁸ which requires stringent water inspection, soil contamination has been discovered as a result of groundwater contamination.

Restoration Problems Under Japanese Environmental Law

Japan is a small island. Thus, alternative uncontaminated sites that could replace contaminated sites are inherently limited, particularly in urban areas. After the baby boom in the post-war era and the subsequent high population density, there was high demand for housing and amenities and a strong incentive to reuse even contaminated sites. But the law does not require contaminated sites that are not agricultural, such as residential areas, to be restored. When the Agricultural Land Soil Pollution Prevention Law¹⁹ was enacted, the legislature thought that restoring agricultural fields was a significant national concern because crops, in particular rice, cultivated from contaminated sites directly affected citizen's health. As for residential areas, restoration was deemed unnecessary as long as contamination was safely sealed. Since literal restoration for contaminated residential sites has not been legally adopted, less costly methods—such as excavation of the contaminant or hardcovering the site—are preferred. The goal of these less costly methods is only to restore productive land use. In most cases, instead of restoring contaminated sites to their original condition, sites are converted to a completely different use. In fact, restoration was often deemed unpractical, costly, and even impossible. In addition, there was strong industry objection, and because industry groups are generally quite influential in Japanese society, local and national governments have limited authority to enforce restoration.

In practice, land conversion is often more favorable because it is easier for the polluter defendants to persuade local citizens to accept the restoration plan if the polluters promise to redevelop the contaminated sites into marvelous urban areas. As a result of large redevelopment, property values rise under market forces, and local citizens receive many benefits from urban development and its attendant amenities. Therefore, polluters usually buy the contaminated areas from local citizens, or municipalities buy contaminated sites from polluters or from local citizens as a political compensatory relief measure, and then redevelop the area for other public enterprise purposes. For instance, contaminated agricultural fields have been converted to residential areas merely by covering the fields with large amounts of soil or concrete. Similarly, contaminated shores were reclaimed and later developed into urban waterfront areas for commercial purposes.²⁰ Contaminated sites were even converted for public school and parks as a result of public enterprise.

Except for a few actual restorations stemming from negotiations between local citizens and polluters, statistics indicate that most contaminated sites have just been reclaimed or covered with soil.²¹ In most cases, the history of restoration in Japan is a history of changing the use of the land, as opposed to a fundamental restoration of the contaminated resources. Although Japan has succeeded in restoring land value and in reusing contaminated sites productively, Japanese restoration never takes into account the negative influence on the ecosystem and the indirect chain reactions against the environment as demonstrated in the following examples.

Agricultural Fields: The PCB Restoration Case

In Japan, only the government can enforce restoration actions on agricultural fields. Under the Agricultural Land Soil Pollution Prevention Law, a governor of a prefecture (a Japanese region) may designate an agricultural area as contaminated if it is polluted by one of the three substances listed under the Act: cadmium, cooper, and arsenic. According to the White Paper on Environment, most of the restoration actions on agricultural fields involve the removal of contaminants. Contribution for the removal actions from responsible parties is lower than 50%.²² Currently, work is being conducted at 67 sites (covering 6,270 hectares (15,675 acres)), 78% of which is now complete.²³

Although many soil contamination claims are reported, there are few soil contamination lawsuits. The most famous soil contamination case is the Itai-Itai Disease case (Aoyama v. Mitsui Kinzoku),²⁴ which involved fish and agricultural products polluted by cadmium through water discharged by a coal mine. Another rare occurrence was a PCB soil contamination civil lawsuit that resulted in actual restoration. The case was settled and the parties agreed that the contaminated agricultural field would be restored.²⁵ The unique characteristic of this case was the plaintiffs' claim for removal of polluted soil based on the theory of fee simple absolute so that the land could once again be used for farming. Since it is allegedly impossible to remove PCBs, the plaintiffs sought the removal of all of the polluted soil under a claim for ejectment, which is an action to restore possession of property to the person entitled to it. In this case, mere buyout and compensation was not enough to compensate the plaintiff farmers because their free right of property enjoyment was recognized as worth protecting.

[33 ELR 10294]

Residential Areas: The Chromium Soil Contamination Case

In the 1970s, the benchmark soil contamination case in Japan—one on par with the Love Canal event in the United States—involved the Edogawa-ward site in an urban residential area of Tokyo. The pollutant, chromium, contaminated 172 properties and a 330,000 cubic meter area.²⁶ Since Edogawa-ward was neither an agricultural field nor a groundwater resource, national law and the Tokyo government's ordinances could not be used to order restoration. As a result, local citizens, along with the municipality, played a significant role in the negotiation and implementation of the recovery action. After long and difficult negotiations, the city of Tokyo and the chemical company that generated the contamination, Nihon Kagaku Kogyo Corporation, agreed to pay the recovery cost. The city then bought the contaminated sites and undertook restoration action. However, the chemical plant facilities were located in many different places across four Tokyo wards, and the settlement amount was not enough to restore all the contaminated sites. Local citizens and newspapers often report leaking hazardous substances from the sites, and several inappropriate restoration procedures at the sites have been exposed. Thus, the restoration action and its administration remains in controversy. In addition, due to limited urban areas, many of the contaminated sites have surprisingly been converted into public parks where many children play on the inappropriately restored sites.

Landfills: The Yatozawa Final Disposal Site Case

Due to the recent not in my backyard (NIMBY) syndrome, constructing new landfills has become a serious problem in Japan. Many cases of past and present contamination from landfills have been reported, but data is generally not readily available to the public. One of most serious cases involved the Yatozawa Final Disposal Site in Hinode Town, a rural town in Tokyo. The Yatozawa landfill collects business and municipal waste from 26 cities and 1 town in Tokyo that invested in and financed the landfill's administrative union. Due to the collapse of an undercover rubber sheeting, hazardous substances leaked from the landfill and contaminated well water. After the administrative union denied that there was any contamination and refused to disclose its administrative data, local citizens took legal action against the union. The court eventually ruled in favor of the local citizens and ordered the administrative union to disclose the landfill's administrative data.²⁷ In addition, the court ruled that if the union did not disclose the data, it would have to pay an estimated 10 million yen (about $ 82,000 U.S.) fine each day it failed to comply, and the fine was subsequently raised three times. The administrative union has yet to disclose all of the data. Some data might contain evidence of actual contamination, and because new landfill extension plans were about to be undertaken, the administrative union would rather pay the fines than disclose the data. Also, the city of Tokyo—as the ultimate authority—denied the presence of contamination because the scarcity of landfills is a serious problem, and the EA could not correct the local government's decision. Therefore, few temporary measures were actually undertaken. This case revealed that the lack of law, scattered authority, lack of a right-to-know act, and the absence of adequate funding were all hindering effective restoration action.

Groundwater Contamination: The Toshiba Semiconductor Plant Contamination Case

The public first recognized a new type of soil contamination—TCE contamination—in 1987. The Toshiba semiconductor plant, located in the Kimitsu-City Chiba prefecture, has long consumed TCE during its cleaning operation procedure for semiconductors. When water monitoring was undertaken, the city learned that the pollutant had contaminated surrounding groundwater areas. Since the semiconductor plant was the only entity that consumed TCE in that area, the Toshiba plant was immediately suspected. Subsequently, the city undertook investigations, and Toshiba Corporation paid all the costs, including the restoration cost under the agreement with the local government. During restoration, the city, instead of Toshiba Corporation, removed 2,700 tons of contaminated soil and a certain amount of groundwater. Toshiba Corporation also voluntarily paid for the local citizens' actual and emotional distress damages. However, it did not admit its responsibility. As a result of the restoration, water quality was improved and there have been no official reports of serious health damage.²⁸

Incineration Facilities: Dioxin Pollution

As a result of the geographically limited area and the original deficiencies for landfills, Japan incinerates its general wastes as a common disposal method. In fact, its operations range from private to public incineration facilities all over the land. In addition, illegal incineration of industrial waste and unauthorized enterprises cause serious pollution. Recently, it has been widely reported that dioxin-creating incineration facilities contaminate their surrounding areas. In most cases, dioxin sediment accumulates in areas near the facility through the air and causes soil contamination. Also, there have been numerous newspaper reports of seriously polluted agricultural crops in these areas as well as high cancer rates and the presence of dioxin in breast milk. The local government and the Ministry of Environment have examined the area and are prohibiting the use of small incinerators, which are usually owned by individuals and small businesses.

Legal, Legislative, and Administrative Inadequacies

Civil Law

Pecuniary Compensation

Japan is a civil law country that inherited its legal system from France and Germany. Civil law can broadly be characterized as being rigid and stable. Thus, amendments to civil law have rarely taken place. In fact, the Minpo,²⁹ the Japanese [33 ELR 10295] Civil Code (Civil Code), has not been changed since it was enacted over a century ago, except for a few adjustments to the family law sections.

When measuring environmental damages in pollution cases, the Japanese judicial branch mostly provides injunctive relief and compensation for a person's bodily injury under tort law. Due to the emphasis on compensation for injuries, the restoration of contaminated sites has only been adopted in response to the implementation of compensation. Because the pecuniary compensation is mere ex post facto compensation, any damages, including health damages, economic loss, and emotional distress, are heartlessly calculated as a certain amount of money in the end. Therefore, it is obviously not an ideal means of compensation.

In Japanese legal history, the theory of restoration, including environmental restoration, has not fully been developed because pecuniary compensation determines damages.³⁰ The only restoration provision in the Civil Code pertains to defamation claims. Thus, with few exceptions in special laws and the ejectment claim of property rights, pecuniary compensation has been the primary means of assessing damages.

However, because Civil Code provisions are generally obscure, it fails to provide a deterrent for future defendants in mass environmental torts. It goes without saying that the best way to conserve humanity's environment is advance prevention. But as long as the judicial system adopts the classic tortious liability theory, defendants pay later what they cause today, and thus, there is nothing to stimulate corporations to protect the environment.

An eminent legal scholar once alleged that when the Civil Code was enacted a century ago, drafters did not envision mass tort cases or the gravity of significant human damages caused by corporate activities.³¹ Also, as a procedural matter, the Japanese judicial system has had trouble handling mass tort litigations because traditional civil procedure was originally arranged to handle each matter individually. Accordingly, it has not functioned well handling mass litigations such as environmental tort and product liability litigation.³²

The complex litigation process also makes it more difficult for the environmental plaintiff to seek restoration. The Japanese judicial branch is generally reluctant to uphold restoration damages because estimating the loss of the environment by actual cash value is extremely difficult and the environment has not long been regarded as a protected legal interest. Further, the costs of remediation can be overwhelmingly expensive. During the 1970s, it was estimated that the cost of restoration was at least twice as expensive as what was awarded as pecuniary compensation. Moreover, restoration to the original condition generally requires even more money and takes a long time to complete. Except for gigantic corporations, it is impossible for only one party to pay all costs. Once charged as a responsible party, corporations surely would fail to continue their business, and some companies and industries would even become extinct. The strict sentence of having to pay for restoration surely causes polluting defendants unforeseeable and undue hardships and impedes economic growth. Also, due to fears such as bankruptcy, unemployment, decreasing international trade competitiveness, the extinction of specific industries, and losing exploitation of new products, the Japanese judicial branch was sensitive to intruding on legislative and administrative functions. Thus, it was reluctant to interpret the Civil Code as protecting the environment. During rapid economic growth in Japan, it is difficult not only for the legislative but also for the judicial branch to uphold restoration orders because of strong pressure by industry groups along with the general public. Instead, the pecuniary compensation is deemed to be very convenient for both victims and defendants, particularly the defendants.³³ And seemingly, the judicial branch thought the more the country prospers, the more the government could afford to help the victim by exercising general welfare power. In any event, the Japanese atmosphere implied that economic development came before environmental protection. Ironically, this compensation measure, convenient for corporate defendants, contributed to Japanese economic development.

More or less, compensation under tort law merely provides compensation to individual plaintiffs and does not provide a fundamental solution. Even though there is obvious harm invading both the plaintiff and the environment, compensation measures under tort law have not been effective.³⁴ Because Japan emphasizes compensation for injuries, it does not have a comprehensive long-term restoration plan even though there are many actions undertaken by local governments. Due to the absence of effective law, long-term restoration actions are generally erratic and influenced by present economic conditions.

Causation

In Japan, fault-based liability governs the civil liability system. Under fault-based liability, the plaintiff must prove that hazardous substances are infringing on his/her rights and his/her property. Also, a plaintiff must prove that he/she and his/her property are actually injured by specific pollutants that are generated by a defendant's particular activity and process. Due to lack of funds, hostile defendants, and the inadequacy of public research institutes and technology, it is difficult for a plaintiff to demonstrate legal causation under this system.

In order to ease the plaintiff's heavy burden of proof in the Niigata Minamata Disease case (Ono v. Showa Denko),³⁵ the court took into account the difficulty of proving factual causation between pollutants and diseases and their process. The court adopted a theory of probability causation and decided that

it was enough for the plaintiff to prove causation accumulated by circumstantial or indirect evidence to show high probability. Then, once such a pollutant is traced to a polluter's gate, the burden of proof shifts to the polluter. Unless the polluter proves its pollutant does not [33 ELR 10296] cause any harm or pollution, the existence of the causation is presumed and legal causation is established.³⁶

In the Itai-Itai Disease case, taking into account unidentifiable harm by a wide range of corporate activities and natural and medical phenomena in the regional area, the court approved epidemiological causation between the disease and pollutant as a substitute for proving legal causation unless the defendant can introduce clinical medical evidence to the contrary.³⁷ Today, a plaintiff needs to prove certain causation between the defendant and the disease but does not need to prove the entire mechanism of the disease.

Fault-Based Liability

In Japan, there are no general provisions in the Civil Code that pertain to environmental damage. Instead, when a plaintiff wants to sue the defendant, Minpo Article 709 is used to compute human environmental damages. Based on this provision, fault-based liability has been a fundamental element of the civil justice system in Japan. Consequently, the Japanese judicial branch has generally followed this traditional tort liability theory in environmental tort cases in accordance with the Civil Code. Under fault-based liability, there are many obstacles for plaintiffs to overcome, and plaintiffs are at a disadvantage in environmental cases due to the lack of a statutory cause of action for environmental torts and the difficulty of identifying defendants as well as the plaintiffs themselves in complex pollution cases. As discussed above, the plaintiff must prove legal causation between the polluter's activity and the damage by firm scientific evidence. Even where epidemiological and probability causation theories are allowed, it is difficult to prove the defendant's intent or fault because of unavailability of evidence. Because of these requirements, huge delays and litigation costs make it more difficult for a plaintiff to pursue litigation.

Even if a court admits epidemiological causation, the burden of proving the defendant's fault causes undue delay of litigation and compensation for the plaintiff. Nevertheless, in both the Niigata case and the Kumamoto Minamata Disease case (Watanabe v. Chisso),³⁸ which were brought under Minpo Article 709, the courts actively found the defendants at fault:

Since chemical operation consumes harmful substances, it is easy to predict potential harm against humans and the humanity environment through water discharge, therefore, a defendant corporation owed a high duty of care to prevent harm toward] [ the society by state of the art technology and knowledge. Since the defendant was careless regarding water discharge, it was presumably [the] defendant's fault.³⁹

Because fault-based liability governs the civil liability system, the judicial branch tried to ease plaintiff's heavy burden of proof. By using a sophisticated interpretation technique derived from the Civil Code, the plaintiffs in these two cases were allowed to virtually flee from the burden of proving the defendant's fault, thereby bringing about the same effect of non-fault liability. Strictly speaking, non-fault liability in pollution disputes is not literally non-fault liability but rather "liability which does not require proving one's fault."⁴⁰

Joint and Several Liability

Because of the indivisibility of harm, joint and several liability is theoretically applicable under Minpo Article 719 but technically difficult to establish in complex pollution cases. Along with the burden of proving fault and causation, the plaintiff has the heavy burden of proving every causal nexus and contribution between each defendants' pollutants. But the indivisibility of the pollutants hurts plaintiffs even further. Even when plaintiffs successfully identify the contents of the polluting compound, if each pollutant is discharged under the government's safety level, then no defendant would be liable under the fault-based liability the-ory—regardless of their substance's contribution to the actual pollution.⁴¹

In the Yokkaich Asthma case (Shiono v. Showa Yokkaich Sekiyu),⁴² however, the court applied joint and several liability against six defendants by using epidemiological evidence even though the defendants' discharges met the government standards. The court ruled that it was the defendants' fault in operating their facilities, the harm was foreseeable, and the defendants' operation was determined to be one economic unity. In addition, the court criticized the government for establishing loose regulations.

Although it is technologically feasible to trace actual pollutants and their harm, it often takes a long time to determine causation and to prove the defendant's fault. Meanwhile, human health and the environment continue to be infringed upon without a prompt relief measure. In the end, the judicial branch has made significant efforts to provide flexible interpretation. As a result of the judiciary's expanded role, the administrative agencies and legislature enacted new acts to compensate plaintiffs. However, since their interpretation was limited to compensation for certain injuries, restoration orders are often set aside and rarely legally upheld.

Legislation

Many special environmental laws enacted during the 1970s arranged for comprehensive pollution control regulations. Shortly after Japan achieved economic success and environmental improvements, however, some said that environmental administration and legislation lessened because obvious visible pollution disappeared. Also, the judicial branch, which once played a significant role in resolving pollution cases, has recently decided environmental cases [33 ELR 10297] that clearly go against the public demand. Moreover, the harm of new hazardous substances is not perceptible and the Japanese economy is not as strong. Thus, the public has now become indifferent to environmental enforcement.

Air Pollution Control Law and Water Pollution Control Law

Except for agricultural fields, Japan does not have comprehensive pollution control acts for soil contamination. Instead, soil contamination is regulated indirectly by other environmental laws such as the Air Pollution Control Law and the Water Pollution Control Law.⁴³ Since it takes a long time for actual harmful soil contamination to be discovered, politicians first emphasized flow pollution and left appropriate measures for soil contamination alone because they thought that it was unnecessary to enact such measures as long as the air and water control laws functioned properly. Thus, they did not seriously consider a need for soil contamination law.⁴⁴ Also, when new environmental laws were passed in the 1970s, the Diet, the Japanese Legislature, thought if both the Air Pollution Control Law and Water Pollution Control Law were strictly regulating the continuous discharge of pollutants to the environment, soil contamination would not occur because typical types of soil contamination are caused by the accumulation of pollutants on the ground from water or the air. Thus, it was believed that as long as both acts regulated air and water quality, further enactments would not be necessary.⁴⁵

Under the Water Pollution Control Law, as amended in 1996, when groundwater is contaminated, a governor issues an administrative order against the polluter to take cleanup action regardless of past or present causes. This Act adopts strict liability and is interpreted retroactively. In order to clean up water quality, the Act can simultaneously be applied to soil contamination. However, since not all lands are groundwater resources, the Act is not comprehensive. In addition, in some cases contaminated groundwater causes contaminated soil, whereas in other circumstances it may be the contaminated soil that contaminates the water. Thus, under the latter scenario, soil contamination sources cannot be removed by the Act until groundwater is polluted. Since Japanese environmental laws are divided for soil contamination and groundwater contamination and there is no comprehensive soil and groundwater pollution control law, cleanup action is not required by law.

Agricultural Land Soil Pollution Prevention Law

The Agricultural Land Soil Pollution Prevention Law is the only applicable law containing a restoration provision for soil contamination.⁴⁶ It regulates cadmium, heavy metal lead, and arsenic. In cases of contamination, restoration is mainly undertaken by public entities. However, as its name represents, the Act was created only for restoring contaminated agriculture fields, not residential areas. In fact, there is no applicable law to handle contaminated residential areas. As an administrative guideline, minimum safety standards were established. However, the White Paper on Environment still states that in cases where a high level of soil contamination is found in residential areas, generators should voluntarily take recovery action.⁴⁷ It is, of course, not legally enforceable.

Waste Disposal and Public Cleansing Law

Because most sources of soil contamination are leaking hazardous wastes, the Waste Disposal and Public Cleansing Law (Waste Disposal Law) can be applied to situations involving contaminated residential areas.⁴⁸ According to the statute, a generator must properly discharge hazardous waste byproducts generated during its manufacturing processes.⁴⁹ Also, generators are responsible for properly discharging hazardous wastes on their own.⁵⁰ However, a generator may cosign an arranger who has a permit to discharge the generator's hazardous wastes.⁵¹

In practice, most generators generally cosign an arranger to discharge their substances, and, as a consequence, arrangers routinely accept hazardous wastes from many generators and then discharge them into landfills. The Act provides that an arranger is responsible for its landfill and that a generator is also subject to being liable for the contamination of landfills.⁵² However, this provision only applies to the arrangers who conducted illegal discharges and generators who knowingly cosigned with such illegal arrangers. Incidentally, because the Act was originally created for waste disposal, it does not apply to soil contamination caused by dumping prior to the Act's enactment.

The 1997 Amendments to the Act provide that in the case of illegal dumping, a governor will order the responsible party to undertake restoration, but if the restoration is not taken, the governor may undertake restoration and then seek compensation from the responsible party. The Act, however, remains inadequate for remediating soil contamination. For example, it does not apply to high-tech cleaning processes and dry cleaning processes because they are unlikely to fall within the definition of "waste." In order for the Act to apply, the pollutants discharged by the generator must meet the law's definition of "waste." Therefore, because it is usually technologically infeasible to determine which substances actually caused the contamination due to mixed and transformed substances, the Act rarely handles problems practically.

[33 ELR 10298]

Administrative Roles

The EA

The EA was established in 1971 in response to public pressures.⁵³ The administrative agency is 1 of 13 ministries run by the Prime Minister's Office. Its duty is "to consolidate the administrative powers and responsibilities of environmental pollution control, including nature conservation, the responsibility for which previously had been scattered among many governmental agencies."⁵⁴ At present, the EA's main duties are to instruct municipalities, subsidize their restoration actions, and cope with global environmental issues. It consists of 1,131 employees and its annual budget in fiscal year (FY) 2001 was roughly 250 billion yen (about $ 2 billion U.S.). Most of its employees engage in managing national parks.

Unlike the U.S. Environmental Protection Agency (EPA), the EA has not been authorized to undertake restoration in place of the polluters or local citizens who reside around the contaminated sites. In other words, neither the Diet nor the EA have standing or authority to negotiate with polluters in regard to the restoration and cost contribution involved with a contaminated site. Objectively speaking, the EA's status is very weak in comparison with the other ministries. Because the EA is still regarded as a new agency and is classified as a lower governmental authority, it is very influenced by the other ministries' policies. For example, in Japanese environmental history, the Ministry of International Trade and Industries, as the most powerful ministry, has played a major role in developing environmental technologies whereas the EA has not. And contrary to the EA's purpose, authority over the environment is scattered among various governmental agencies.

Also, Japanese society still emphasizes economic policy over environmental protection. In particular, the Ministry of Construction and the Ministry of Agriculture, Forestry, and Fisheries have often confronted the EA's policy and, in most cases, their projects go forward despite the EA's objections. Since politicians, private companies, and public and nongovernment organizations broadly support the construction and agriculture ministries, and because construction and agriculture projects are generally big national projects involving many economic interests, it is simply too difficult for the EA to oppose them. Also, the agency is not capable of making new enactment plans without the other ministries' consent. Thus, due to a lack of authority, human resources, and funds, the EA has not played a positive role in domestic environmental problems despite its efforts.

Local Government

Municipalities

To make up for the inadequacies of administrative agencies and the judicial branch, municipalities have played a major role in the restoration and enforcement of their local environmental ordinances. Today, municipalities are recognized as the ultimate authorities in handling domestic environmental problems simply because it is their duty to protect local citizens. Ironically, they themselves are sometimes the owners of contaminated sites such as incineration facilities and landfills.

Because municipalities have little authority to urge polluters to undertake voluntary restoration, they often struggle when handling an environmental restoration action. Municipalities often provide administrative guidance (named gyoseishido)⁵⁵ to polluters. However, although the administrative guidance set forth strict standards, they are not legally enforceable and rely on voluntary cooperation and consent. The other obstacle is a lack of money. Since there is no provision to handle instances in which there is a financially incapable or unidentified responsible party, the municipality takes over the restoration action. Moreover, costs are payed for by general revenue collected from local citizens' tax dollars. Therefore, there is controversy regarding fairness because faultless taxpayers must pay for the polluting party's actions, which goes against the "polluter-pays" principle. Nevertheless, municipalities generally do not have enough money to undertake costly restoration actions. A site investigation costs millions of dollars, and actual restoration action costs are much higher, thus, the budget problem is often beyond the reach of their capability. Because local governments want to maintain the tax revenue they receive from polluters and the employment they offer local citizens, municipalities are conflicted with protecting their basic interests and often struggle to manage environmental issues.

Along with fund deficiency, municipalities are criticized for undue delay in taking appropriate actions and for not disclosing information to the public. Because there is no uniform guidance for restoration procedures, many local governments simply do not know how to handle the problem. In the end, some municipalities conceal or underestimate the seriousness of the contamination, or they keep it a secret for a long time until the restoration procedure is decided. Recently, in response to pressure from local citizens, some municipalities have voluntarily undertaken restoration action or have adopted municipal ordinances requiring the polluters to do so.

In addition to lack of revenue and the enforceability of the ordinances, there is no specific safety level for soil contamination found in residential areas. If municipalities follow the national safety level for soil set forth in Basic Environment Law Article 16,⁵⁶ which provides the ideal safety level for soil for prohibited substances, it is quite difficult to restore the contaminated sites because the required level is high and it is too costly to restore. In addition, since there is no particular system for environmental engineering or consulting authorized by the government, the restoration is undertaken in irregular ways and their results are doubted.

Voluntary Environmental Agreements on Pollution Control

What is likely the most notable aspect of environmental law in Japan are the voluntary environmental agreements (known as kogai boshi kyoutei) made between responsible parties and municipalities (and/or local citizens and injured [33 ELR 10299] plaintiffs). These agreements are not enforced by statute and, therefore, are not legally binding. Nevertheless, both local governments and polluters want to reach amicable and cost-effective solutions. Generally speaking, because Japanese society hesitates to take legal action, these methods actually work out in many ways and have been widely used for a long time. For instance, during the 1970s, these agreements were mainly used to make up for the deficiency of compensation measures, including restoration actions. More recently, these agreements are used for establishing local emissions standards—and the standards are more stringent than national standards. Because establishing municipal ordinances that are more stringent than national standards causes constitutional problems, particularly with respect to the enforceability of the ordinance, both parties prefer to agree on standards by agreement rather than through an ordinance.

There are many other advantages to these agreements: (1) they encourage voluntary environmental audits; (2) in the case of contamination, they adopt flexible restoration goals according to the seriousness of contamination; (3) they adopt updated methodology over time; (4) the polluter can take into account the restoration cost in its business plan so that the restoration action does not significantly affect the polluter's ordinary business, therefore, employment opportunities and tax revenue are not dramatically influenced; (5) local governments can advise and give adequate administrative advice in case it is needed; and (6) due to the agreements' great flexibility, it is easy to adopt subsequent changes as needed. Since establishing and amending laws take a long time and their standards are generally uniform, the agreement is well suited to soil restoration. Also, as the representative of local citizens, local governments can persuade corporations to prevent environmental contamination, while corporations can express their environmental efforts to the public.⁵⁷

In contrast, it also has its disadvantages. The agreement is voluntary and relies heavily on the polluter's cooperation and moral ethics. Since it is not legally enforceable, it is difficult to enforce the agreements in case of a violation. Also, the cleanup goal is often obscure and is influenced by the monetary situation of the polluter, local government, and national economy. Therefore, the restoration goal is subject to being set at a lower level. Further, data regarding the agreement is not always available for the general public and, thus, conflicts regarding disclosure often occur. In addition, the voluntary environmental agreement is primarily criticized as a "smokescreen for failure" because ultimate responsibility is not pursued, and the ultimate responsible party is unclear. Because a polluter does not always admit his responsibility for the contamination, he contributes to the restoration cost only if he is willing to do so.⁵⁸ And some local governments provide polluters loans, which mainly consist of general revenue and goes against the polluter-pays principle.

At present, voluntary agreements are supported by private or public contract theory. The agreements are considered contracts and, thus, are binding under contract law. Further, they work particularly well when a disclosure provision is included in the agreement that provides that the polluter's name will be disclosed if the polluter violates the agreement. Since corporations are afraid of losing their social image among society, voluntary agreements function well.⁵⁹

Municipal Environmental Ordinances

Among the local governments, some municipalities have vigorously enacted local environmental ordinances in response to local citizens' demands. One outstanding ordinance is a Hadano City Environmental Ordinance.⁶⁰ Hadano City is well known for its pure mineral water. About 70% of its water supply is provided by groundwater, which local citizens also use for daily life. In 1988, a weekly magazine article reported that trichloroethylene contaminated the groundwater resources. As a result of contamination, the city took broad health reports from local citizens who used the contaminated groundwater. However, specific health problems such as the cancer rate are not officially identified. Nevertheless, as a result of strong local public demand, the city counsel enacted a new ordinance in order to recover the water quality.

The ordinance is based on the polluter-pays principle and adopts many aspects from the U.S. Superfund Law.⁶¹ Pursuant to the polluter-pays principle, responsible parties are ordered to undertake a site investigation and necessary remedial actions at their own expense. If the responsible parties cannot be identified, the mayor himself may take remedial action through an accumulated fund. The fund consists of the city's general budget, involuntary contributions from corporate groundwater users, and administrative profits from the fund. Moreover, the ordinance provides for fines. In addition, some of the ordinance's cleanup measures and requirements are set up according to the national safety level of drinking water set forth in the Water Pollution Control Law.

According to the ordinance, responsible parties are classified as past/present generators, operators, transporters, and arrangers—parties to whom the mayor assigns, or the mayor himself. As a general rule, a landowner is not automatically subject to liability because such a provision would not be acceptable under Japanese tradition.⁶²

Because this ordinance contains a retroactive liability provision, past polluters are also subject to liability. However, adopting retroactivity brings about constitutional problems such as due process and the ban on applying criminal law retroactively. In addition, the public generally hesitates for punishing past polluters. Thus, although it contains retroactive provisions, criminal punishment was not adopted. Instead, the mayor can disclose the responsible party's name to the public, which usually results in some sort of response by the responsible party because corporations do not want to lose their social image.⁶³

[33 ELR 10300]

In cases where contamination is suspected in a certain area, the mayor undertakes a basic site investigation, which identifies the seriousness of the contamination. If contamination is identified, the mayor assigns a responsible party to take a detailed investigation. The assigned responsible party must make an investigation plan and get the mayor's approval. During such an investigation procedure, the responsible party is given the opportunity for a fair hearing. Later, after the investigation, which is done under the mayor's supervision, the mayor again assigns a responsible party to undertake the restoration action. The restoration action is not finished until the mayor gives his or her approval. A mayor also has the authority to enter the premises to undertake a site investigation to prevent further contamination. Where a responsible party is identified and can pay the cost, the mayor will seek compensation from that party.⁶⁴

Suggested Measures for Improving Restoration Law in Japan

Under the absence of known damages and the wealth of uncertain risks, traditional legal theory cannot properly handle soil contamination cases. To begin with, whether there is "legal interest" or not is in doubt since Japanese environmental tort law was originally developed for serious bodily injuries. Also, in the absence of actual damages, establishing causation is virtually impossible under a classic liability theory. No apparent damage translates into no cause of action. Meanwhile, national and local governments have had difficulty in handling this matter due to a lack of victims and serious damage. Also, due to the lack of uniform authority, funding problems, and powerful industry groups' objections, it is very difficult to cope with the situation. In using general welfare power, the national government can take appropriate actions such as site investigations, medical reports, and restoration actions if necessary.

Despite the inadequacies of Japan's legal system, taking restoration action is necessary because the magnitude of potential damage and the resulting chain reaction in the ecosystem is immeasurable. Realistically speaking, the groundwater dependency rate in Japan is about 30%, and, therefore, natural resources need to be protected. In addition, some chemical compounds cause global warming, and, therefore, undertaking restoration actions in part helps solve global environmental problems.⁶⁵ Furthermore, due to the high population density in the world, food deficiency will become a serious national problem, and since Japan's food self-sufficiency rate is relatively low and continually decreasing, soil contamination may confront a serious food deficiency in the future.⁶⁶ Therefore, as national risk management, it is in Japan's best interest to restore contaminated sites for future agricultural purposes.

Except in a few situations, it would be technologically feasible to undertake restoration action. Some newspaper articles reported that although problems surrounding water and soil contamination from PCBs have not been resolved in the past, they can now be dealt with safely.⁶⁷ Subsequently, one private corporation manufactured a commercial device to remove PCBs safely and inexpensively.⁶⁸ Since the restoration technologies are constantly improving, strong law enforcement to adopt such methodology is needed.

Despite the challenges Japan faces due to the uncertain risks involved, it is necessary for Japan to realize that its present legal duty is to protect the environment. Since our ultimate mission is to consider our valuable environment fairly and to give the same quality of life to future generations, necessary actions must be undertaken to protect our future environmental interest regardless of its cost.

Adequate Funding

Looking at U.S. history with Superfund, cleanup actions take a long time and require a large sum of money. The average cleanup cost of a Superfund site is $ 30 million, and it can range from $ 10 million to $ 100 million.⁶⁹ Thus, as is the case in the United States, a constant pool of funds is a key element for effective restoration. Without establishing secure funding, concealment, underestimation of contamination, and inadequate cleanup actions are likely to increase.

Because the restoration usually requires a large sum of money, questions such as: "Who bears the cost?" and "What resort should be chosen to collect enough revenue on the basis of fairness?" are battlegrounds for a restoration's effectiveness. In general, there are two ways to approach these questions. One is to order a potential party to take restoration action. The other is for the government authority to take action using funds collected from public revenue.

Under the polluter-pays principle, the polluter generally must pay all incurred costs. No matter when or where they are generated, it is rational that the polluters pay the entire cleanup cost. In theory, imposing the whole cost on the polluters is the most effective method because they directly suffer from their improper disposal of hazardous substances. However, it has already been proven that this principle cannot solve the problem because it is practically impossible to collect 100% of the restoration cost from the polluters. According to Japanese environmental history, polluter defendants only contributed approximately 50% out of the total cost of the redevelopment projects on agricultural fields.⁷⁰ Yet in the United States, cost reimbursement from responsible parties only accounted for about $ 1.6 billion, a mere 14%, of the total of $ 11.6 billion contained in the U.S. Superfund for contaminated sites, through the end of FY 1995.⁷¹ The U.S. Superfund law reveals that collecting money from responsible parties is not always possible and is even deemed unpractical because of litigation costs as well as the huge transaction costs spent to trace the responsible parties. In most cases, even though EPA identified the responsible parties, most of them had already gone out of business, were not able to pay the cost, or the responsible parties were actually government entities.⁷² As a result, almost the [33 ELR 10301] entire portion of the total U.S. Superfund was paid by general revenues. The U.S. Superfund experience demonstrates that even with expanded liability, it is difficult to identify responsible parties and reimburse the cost from them.

An effective restoration program requires a balancing of cost allocation, cost effectiveness, and fairness. In order to avoid unnecessary lawsuits and an underfinanced restoration action, the scope of each responsible party's liability and reimbursement obligations must be firmly established. In addition, a balanced cost allocation between the general public and responsible parties must be supported by political and economic theory. First, funding should be based on the polluter-pays principle. Second, because cleanup actions take a long time, a stable means for funding the action is necessary. Erratic means of funding, such as through a waste disposal tax, should account for only part of the action. Instead, funding should be mandatory and periodically collected into a pool fund. Last, funding should not disturb certain industries' international competitiveness.

Alternatively, the government can spread the cleanup cost through its taxation power. In theory, each individual's share of the cleanup cost would be relatively small. And because spending general revenue to pay for restoration is less costly and less time-consuming, it presumably would be the most effective method for restoring contaminated sites. However, the public objects to spending general revenue because it is not fair.⁷³ However, if disposal and remediation costs were paid for by the general public, companies would be able to exclude these costs from their products and everyone would receive indirect benefits from the lower prices. This provides a strong justification for using general revenue to pay cleanup costs.⁷⁴

As a practical matter, both local and national funds may be separately established. A national fund would mainly be a subsidy and consist of specific assigned taxes and general revenues, while a local fund would consist of contributions, natural resource taxes, waste disposal taxes, and general revenues. The taxes and funds, however, should be earmarked and delivered directly into special funds. Moreover, national funds, as subsidies, must be uniformly assigned to site investigation, restoration action, restoration technology development, and health inspection. And in order to undertake restoration more effectively, the polluting source must be identified through stringent investigations no matter how much it costs. Because compensation from polluting companies would not be included under this scenario, local funds as well as national funds would be necessary to effectively restore contaminated areas because the costs involved are so high.

Establishing Effective Restoration Risk Criteria, Goals, and Methods

Who actually implements the immediate and subsequent restoration action is determined by practicability. If the voluntary restoration action is taken by the responsible parties or is assigned to private parties, an effective supervision system by the government and its citizens must be adopted. In practice, the responsible parties and a public authority, through established funds or other arranged budgets, divide the costs of restoration by taking on several different voluntary actions. As a clear rule, it is preferred that the responsible party undertakes the restoration action. However, in cases where there is an unidentified responsible party, unidentified contamination source, economic deficiency of the responsible party, disobedience of the restoration order, or imminent damage, a public authority undertakes restoration instead. Later, it files a compensation action against the responsible party in accordance with the polluter-pays principle.

The Basic Environment Law sets forth the ideal quality standard for soil. However, this standard is generally quite high and is difficult to follow as a restoration goal. Also, if a restoration action is not undertaken until obvious contamination emerges, it is often too late to cure. Nevertheless, because this level is deemed as a desired standard, certain restorative action criteria and goals can be theoretically established.⁷⁵ Moreover, minimum requirements and standard levels for agricultural fields have been established for three substances. As to water quality, the amended Water Pollution Control Law specifies a stringent minimum safety level. And recently, a safety level for residential areas was established as an administrative directive. However, as mentioned above, Japan does not have comprehensive soil contamination laws that apply to subsequent groundwater contamination. Therefore, soil and groundwater contamination are handled separately. In case of groundwater contamination, a governor will issue an administrative order, but there are no measures for soil contamination in residential areas. Restoration requirements, goals, and a local or national government authority for residential areas are not yet established.⁷⁶ It is very important that stringent restoration requirements for residential soil contamination are established based on current or future risk. Because of the uncertainty of the potential risks, identifying the contaminated source is the most important element. In order to undertake preliminary investigation in cases of mere suspicion, stringent requirements, such as the drinking water quality standards, are needed to prevent pollutant migration and to locate hidden contaminated sources.

The most desirable solution when dealing with contaminated sites is to take immediate action as soon as they are identified, thereby preventing further contamination. Ideally, the contaminated site should be restored to its original condition. In practice, however, this simple idea is difficult to enforce, particularly since there are few pristine places in the world and almost any land is contaminated in some form. Actual risk-acceptance analysis would have to be performed in order to determine the level of restoration, taking into account the purpose of the contaminated land and its surroundings, such as residential areas, commercial areas, or whether there are water resources nearby. This analysis would weigh the risk of contamination against human health and the environment through scientific means, but would also consider economic factors. In other words, [33 ELR 10302] this analysis uses risk management to keep risks within acceptable levels.

In practice, there are four objectives for determining the degree of environmental health: (1) no significant effects against human health; (2) no significant threat against the ecosystem; (3) no need for future cleanup; and (4) productive uses must be available for each site. As a general principle, however, the site must be restored as close to its original condition as is possible, passing high-safety standard levels, or at least it must minimize certain risks so as to be available for future productive use.⁷⁷ However, the highest level need not always be chosen.

In general, there are two measures that can be used. One is a flat standard that requires cleanup until the minimum standard level is met. The other is a site-specific standard. The advantage of the flat standard is that action can be taken immediately because the restoration goal is clear and planning remedial measure is relatively easy. Over time, the restoration costs will become cheaper and the time it takes to implement the action will become shorter in most cases. As environmental restoration businesses mature, they will become more competitive. In addition, after learning from past experiences, abuses such as overcharging for restoration costs or inappropriate methodologies will be avoided. And once restoration is complete, there is no particular danger in the future. In sum, this measure is very simple and clear for the responsible party and the general public, and it meets the principles of global environmental protection. On the other hand, economic suspicions may arise as to whether the sites really need to be restored to the specified levels because the cost outweighs the land's net value or the site may not be used even after costly restoration has taken place. There also are risk-based priority problems involved. Because every contaminated site must be restored regardless of seriousness, it may be too late to restore the most serious contaminated site unless a clear risk priority standard is established. Also, once standard levels are established, it would likely be difficult to amend the level. In fact, inflexibility may be the biggest disadvantage of the flat standard.

In contrast, the flexibility in determining restoration goals is one of the advantages of using a site-specific standard. A cost-effective analysis of the site can be created by looking at the seriousness of risk, original use, future intended use, the nature of the soil, potential infrastructure capability, negative impact against other natural resources and ecosystem, population density, economic value, and urban or rural areas. Then, one can determine the highest risk-based priority of the restoration work during investigation.⁷⁸ Further, this method allows desirable goals to be considered and can determine how much money should be spent by government agencies, municipalities, polluters, the local citizens, and the public from legal, economic, political, and methodological viewpoints. However, undue delay and the difficulty in determining "how clean is clean" are disadvantages of the site-specific standard. Also, because of the lack of priority standards, it is difficult to determine where the most serious contaminated site is unless the contamination is obvious. For instance, if contamination emerges in the middle of an urban area, its damage may not be so serious against the environment but it may negatively impact human health. On the other hand, if contamination occurs in a rural area, the contamination may be serious to the environment but not to human health. From a public safety viewpoint, restoration is not always necessary in some sites.⁷⁹ But even if there is no imminent harm to human health, the influence against the ecosystem and potential harm are immeasurable. It also leaves the potential for future danger and the site may have to be restored again. In addition, the tailor-made restoration action may cost more than the flat standard and, thus, is more vulnerable to contractor's abuses, fraud, or overcharges without a uniform observation system.⁸⁰ For example, as is often the case with a governmental authority, it has been reported that EPA has failed to control its contractor's suggested costs, and the absence of a uniform standard may be partly to blame.⁸¹ Because of its inability to spend funds and allocate cleanup resources wisely, EPA cannot effectively reduce the most significant threats to human health and the environment.⁸² In fact, it is said that the restoration done by EPA costs roughly two to three times more than voluntary restoration actions. In addition, in the case of co-assignment to private sectors, an observation system and hearing opportunity for local citizens must be established. Otherwise, conflicts between the public and the government may arise. Last, the site-specific standard is vulnerable to present economic conditions and, thus, may employ inexpensive and ineffective remedies.

Most countries today opt for site-specific standards. However, when considering the current state of contaminated sites, the flat standard rather than the site-specific standard is preferable to some extent. Nevertheless, a site-specific standard may work out in situations where the harm against human health and the environment is serious but is limited to a small area as is typical in soil contamination cases. Also, if the restoration action is beyond the reach of the available restoration technology, a site-specific standard must be adopted as an effective solution. Under this circumstance, temporary containment methods such as in-ground barriers may be the most appropriate way to prevent further contamination. This idea is open to criticism because it is neither an ideal method nor a permanent solution. However, merely spending a huge sum of money for an unforeseen goal is useless, and the development of future restoration methodology may make matters easier. Instead, the funds would be allocated for the restoration of other sites. In this situation, however, a secure monitoring administration must be established to prevent further contamination. And regardless of which standard is adopted, preliminary remediation measures must be adopted at the beginning.

Nevertheless, the establishment of national minimum criteria to undertake restoration action is necessary. Even though harm may fall below the safety level, it may migrate and contaminate the surrounding area without trace. After it is discovered, it may be too costly to undertake a restoration action. Thus, where there is no obvious harm, a powerful ministry is necessary to undertake preliminary measures.⁸³

[33 ELR 10303]

Retroactivity and Cost Allocation

Ultimately, retroactive liability is the most controversial remedy. In the United States, there has been much litigation challenging the constitutionality of retroactive liability under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) because CERCLA does not specifically mention "retroactivity" in its provisions. Despite the absence of a U.S. Supreme Court decision, the U.S. judicial branch will allow for retroactive liability as long as there is an imminent and substantial endangerment to public health and the environment, and such retroactivity in itself does not violate due process.⁸⁴ In Japan, some retroactivity is interpreted by statute under pollution control acts. A lower court has decided that such an interpretation providing for retroactivity is justifiable under public safety as long as there is a rational reason.⁸⁵ Because of voluntary agreements, there is no harsh controversy between responsible parties and government about contributions for past contamination.

In the United States, applying retroactive liability along with strict, joint, and several liability regardless of one's innocence, willfulness, or contribution to the contamination virtually makes every responsible party subject to having to pay for the whole cost. Many innocent parties who adhered to the regulations but nevertheless are accused for past waste disposal may allege that it is unfair since they sincerely followed statutes and regulations. Although it is justifiable as a matter of national policy to clean up polluted sites, imposing retroactive liability goes against the reliable and stable nature of law. Further, the U.S. Superfund law reveals that even after applying retroactive liability to past owners, which sacrifices legal reliabilities, total costs are still not fully reimbursed.

Although the reason for retroactive liability may be justified under a strict reading of the polluter-pays principle, it would be difficult for Japan to adopt retroactive liability laws and sanctions due to Japanese tradition. Although the recently amended Water Pollution Control Law and a municipal ordinance contain retroactive provisions, their retroactivity is not controversial because they do not contain a particular punishment such as a fine or any other specific sanction. It is true that pursuing justice is a fundamental element of law. However, retroactive liability, along with strict, joint, and several liability, only should apply to past responsible parties who disposed of waste illegally and with knowledge that their arrangers would dispose of waste in violation of the law. They should be regarded as one unity and held jointly and severally liable instead of retroactively liable. In addition, once contribution costs are ordered, an obligation to pay the cost may not be excused under any condition. As an unexcused liability, the parties' cost obligation must be able to reach private estates in case of indebtedness. These approaches would not constitute retroactivity because they would be considered jointly and severally liable, as long as the statute of limitations does not apply. This tool—imposing joint and several liability on the guilty owner and arranger without imposing a statute of limitations—may be as effective as retroactive liability given its future detrimental effect and would prevent future contamination. Moreover, unlike retroactive liability, it does not cause constitutional problems and is likely to be accepted by the public.

Liability Reform

Due to inconsistent interpretations of tort provisions and the inadequacy of special laws, restoration has been erratically undertaken in Japan. Even though the legislative and administrative departments must enact new enforcement laws, liability reform in civil law is also needed to enforce certain goals because most of the land use provisions in Japanese law are originally derived from the Civil Code.

In the United States, every owner is potentially liable under CERCLA even though they may have had little to do with the contamination. Thus, few choose to reuse restored sites as long as contamination exists to avoid potential CERCLA responsibility. Since the abundance of alternative greenfields are easily available in the United States, land developers and purchasers are less likely to purchase and redevelop the restored contaminated sites regardless of their great potential for increased redevelopment value.⁸⁶ Subsequently, CERCLA liability has discouraged developers' interests in counterbalancing costs and benefits, and has also marred supply and demand in the private market. Hence, the reuse of contaminated sites is not very popular in the United States. Also, unlimited strict liabilities indirectly discourage corporations from investing in contaminated sites, which is necessary for economic growth. Society must clearly state a corporation's liability, and its liability must not be unlimited or infinite. Establishing a clear scope of liability is necessary to secure a business environment. Sooner or later, it will become difficult to find alternative greenfields in the United States. Further, greenfield reclamation destroys the environment, therefore, the United States must consider CERCLA liability to foster reuse of contaminated sites.

Nevertheless, new legal enforcement of environmental laws in Japan may require strict liability regardless of an actual contribution of serious contamination. In Japan, estimating restoration cost is somewhat possible as long as the contaminant and contaminated area are identifiable. In this regard, government authorities, such as the EA and local government, are expected to play an active role. In cases where there is a lack of data to show actual contribution, each party should pay an equal amount.⁸⁷ The main purpose of the non-fault liability system is to specify a party's potential responsibility, avoid prolonged litigation, and to take immediate restoration. As a consequence, it stimulates preventive efforts and warns society about the risks of not cleaning up contaminated sites. In sum, strict liability should be applied only to present generators, arrangers, and transporters regardless of innocence or willfulness, and to past illegal generators and illegal arrangers. Innocent landowners and legitimate parties must be excluded from strict liability.

Pursuing justice through enforceable cleanup law is time-consuming and rarely succeeds. Strict, joint, and several liability, as well as shifting the burden of proof to one of the responsible parties, are the only appropriate means for [33 ELR 10304] identifying other blamed parties because responsible parties generally are in a better position than the government, society, and innocent landowners at identifying other responsible parties. However, even though restoration costs millions of dollars, picking the one party who has deep pockets under strict, joint, and several liability is not an ideal resort. Despite the indivisibility of harm, contribution of any relevant responsible party should be taken into account. In the United States, for example, responsible parties who have little to do with the contamination are subject to the whole cost under strict, joint, and several liability. An alternative method should categorize responsible parties and their scopes of liability in accordance with the polluter-pays principle and fair cost allocation methods by taking into account each responsible party's capability and contribution of actual harm.

Corporate Moral Ethics and the Business Environment

Because environmental history is relatively new in Japan, valid information that potential risk companies use to predict "maximum possible loss" and "frequency of losses of different magnitude"⁸⁸ is scarce. As a result of unpredictable, unlimited risks, insurance companies hesitate to insure the unpredictable risk. As a consequence, the environmental insurance market is still immature.⁸⁹ Finance banks also hesitate to invest in certain industries such as the chemical industry. Without sufficient insurance and financing, responsible parties cannot invest in ordinary investments and safety. As a result, instead of paying the entire cleanup cost, they would rather partake in drawn-out litigation to object to their environmental liability, no matter how lengthy the process. To secure a strong business environment, financing from national banks with favorable interest or favorable taxation for the restoration action must be established to encourage voluntary restoration actions and cooperation with industry and businesses.

Today's corporations try to integrate amicably with the community in which they are located and want to be a good corporate citizen. They want to declare that they are "environmentally friendly." Otherwise they lose their future customers. Name-value and social image are critical for companies in the present business world. In Japan, a corporation's voluntary contribution is also a key instrument of environmental improvement. However, preserving the environment is costly and its profit is not perceivable. Also, it often contradicts their original business purpose, and, therefore, companies may be inclined to emphasize on maximizing their profit. In its environmental history, corporate effort does not always derive voluntarily from their moral ethics. Rather, government pressures and other outside pressures have urged them to stimulate their efforts for the past environmental improvement. On the other hand, these pressures and the environmental regulations have created many business opportunities. Like a low-emissions car, a hybrid car, and other environmental prevention technologies, many Japanese manufacturers advanced in an environmental business market. Under these circumstances, politics should take the initiative to protect the environment on behalf of the general public. With vigorous political intervention, securing a good economic environment is a necessary element of continuous investment in restoration technologies and preserving the environment. Since actual harm of present soil contamination is not perceivable, getting a majority of the public is not expected due to people's indifference to the seriousness of the problem. In this situation, strong political intervention is indispensable to achieve environmental enforcement through the industries' objection and people's indifference.

New Law Enforcement

A new bill regarding soil contamination was passed in Japan on February 15, 2002, and went into effect a year later.⁹⁰ The main purpose of this law is to grasp the current situation of soil contamination in Japan and to minimize its negative impacts against human health by taking appropriate risk control measures. The law is focused on the control of risk rather than on the protection of natural environment.

First, site investigation must be undertaken when: (1) a site where specific chemicals or any hazardous materials that may cause contamination were once manufactured, used, or operated but is now being transferred into residential property; or (2) a governor of a prefecture recognizes that a site has a high possibility of soil contamination and may cause groundwater contamination that will significantly impact against human health.

If a reportable level of contamination is identified, the governor of a prefecture must register the contaminated site and the information must be made available to the public until the site is restored. When serious contamination is identified, the governor must order the landowner or polluter to undertake "appropriate measures." However, there are many choices as to what constitutes "appropriate measures" under the new law. Listed measures vary from prohibiting entrance to the site to actual cleanup. Moreover, the law does not specifically require the owners or the responsible party to take a particular course of action depending on the seriousness of contamination. Therefore, it is highly possible that a landowner may choose the cheapest option available, such as covering the contaminated site with clean soil. Since pollution may still exist, the law does not fundamentally solve the problem of contaminated sites. In addition, the law requires the "responsible party to prevent mitigation of harm and minimize potential impact against human health." Thus, the law focuses more on preventing negative impacts to human health rather than on conserving the ecosystem. Nevertheless, it seems that the law pursues practical solutions to handle soil contamination rather than endless cleanup actions that waste time and money.

In addition, the Japanese cabinet recently passed a new environmental legislation, named the Pollutant Release and Transfer Register legislation.⁹¹ The main purpose of the legislation is intended to assess the general state of toxic substance contamination and to share that information publicly. [33 ELR 10305] The legislation is arranged for manifesting hazardous substances in order to prevent new contaminated sites. Although preventing contamination is ideal, how effective the legislation will be depends on later administration. There is difficulty obtaining accurate data from high-tech industries because chemical consumption is treated as top secret. Therefore, whether it can be successful to collect voluntarily manifest data from generators is still in doubt. Also, due to industries' objection, it does not contain a criminal punishment provision, and the fine is relatively low so that its detrimental effect is still uncertain.

Conclusion

Surprisingly, even though large sums of money have been spent and much time has been taken to complete cleanup actions, Superfund sites in the United States have not been restored to their original condition. In fact, most of these sites are not reused. What's more, it is reported that many sites are vacant and have restricted access.⁹² Also, the areas exhibit problems of decreasing land value, general budget deficiencies in local governments, population flow problems due to fears of health issues, and crime.

Similarly, in Japan, despite the restoration actions undertaken, the sites are not fully recovered. The public no longer wants to buy produce from restored agricultural fields. Although the public's hypersensitivity is not always reasonable, in the end, the crops from the restored sites are virtually eliminated from the market place. Yet as long as they pass the requisite safety level, the fields can be used for either commercial or export purpose; however, it is open to ethical criticism. According to the environmental histories of both Japan and the United States, the free market theory will not help restored sites without appropriate aid. When dealing with soil contamination, "restoration" means to not only get rid of the source of contamination but also to restore the land, its value, its original use, and the reputation of the local environment. Present environmental problems are rather complicated since no clear victim and harm is evident. Like global environmental problems, no convincing resolution can be achieved by the judicial branch or by any other government body alone. Therefore, mutual cooperation with society is indispensable.

Because Japan has the geographical advantage of being an island, it has been able to overcome classic types of pollution. Ironically, mere land diversion often functioned well in restoring the land's economic value and productive use despite the fact that environmental health levels were ignored. But mere diversion by either excavation or hardcover alone is not an ideal solution for putting aside risks in the future. Japan has had unpredictable and widespread latent dangers because it has merely chosen the most cost-effective way, undertaken inappropriate restoration, and failed to take into account the diversity of the environmental and its potential influence on the ecosystem. In the immediate future, Japan will have to pay an enormous cost for the full restoration.

In any event, as a first step, broadly mapping potential contaminated sites is necessary to assess covered facts in order to stimulate people's consciousness and secure business within the environment. As a practical matter, a binding audit system when lands are sold is needed so as to find the contaminated sites smoothly. Comprehensive research data must be given to the public to avoid unreasonable fear and conflicts among the society.

Environmental issues have become international political matters; no matter how classified, the law is expected to handle these matters more practically. Japan and the United States have dealt with their environmental problems differently and both mechanisms have great advantages and disadvantages. Japan should learn from the U.S. experience how to handle the administration of the long-term restoration and the fund management process. In order to restore contaminated sites to at least an environmentally healthy level for future generations, new environmental enforcement is necessary to protect the environment in Japan. Last, there needs to be fundamental change with respect to liability due to the potential life threatening aspects of environmental contamination.

1. In Japan, the terms "flow pollution" and "stock pollution" are used to describe two types of pollution. Flow pollution is classified as air, water, noise, odor, and vibration pollution whose harm is not accumulative. In other words, flow pollution can be stopped as long as the source of the pollution, e.g., plant operation, is terminated. On the other hand, stock pollution is classified as soil contamination whose contaminant is accumulative and eternally exists until it is completely eliminated.

2. Niigata Minamata Disease case: Ono v. Showa Denko, 642 HANREI JIHO 96 (Niigata Dist. Ct., Sept. 29, 1971) (mercury poisoning through chemical plants); Kumamoto Minamata Disease case: Watanabe v. Chisso, 696 HANREI JIHO 15, 294 HANREI TIMES 108 (Kumamoto Dist. Ct., Mar. 20, 1973); Itai-Itai Disease case: Aoyama v. Mitsui Kinzoku, 674 HANREI JIHO 25, 280 HANREI TIMES 182 (Kanazawa Branch of Nagoya High Ct., Aug. 9, 1972) (intake of fish and agricultural products polluted by cadmium through water discharge by coal mine); Yokkaich Asthma case: Shiono v. Showa Yokkaich Sekiyu, 672 HANREI JIHO 30, 280 HANREI TIMES 100 (Yokkaich Branch of Tsu Dist. Ct., July 24, 1972) (respiratory ailment from industrial complex).

3. See Pollution Health Injury Compensation Act (Law No. 72, 1973) (Kogai Kenko Higai Hosho Ho). This Act was arranged to compensate designated suffered pollution victims through an administrative fund consisting of contributions from polluters within the local area.

4. A Japanese oil crisis occurred around 1973 due to political strain in the Mideast. Since Japan relied heavily on oil supply from these countries, Japanese people were panicked and were afraid of scarcity of oil products. As a result, Japanese people became more conscious about saving energy.

5. Pub. L. No. 91-604, 84 Stat. 1676 (1970). See, e.g., CAL. VEH. CODE § 39,151 (West 1996).

6. See, e.g., CHARLES S. PEARSON, MULTINATIONAL CORPORATIONS, ENVIRONMENT, AND THE THIRD WORLD: BUSINESS MATTERS (1987). As with the Bophal disaster in India, it is reported that Japanese subsidiaries have caused many environmental problems. For instance, Asian Rare Earth, a subsidiary of the Mitsubishi Chemical Corporation in Malaysia, had inappropriately dumped toxic wastes around its facility. Mitsubishi transferred its manufacturing process to the third-world country shortly after the Yokkaich Asthma case in which it was a corporate defendant.

7. ENVIRONMENT AGENCY, THE WHITE PAPER ON ENVIRONMENT 1998, § 3-1 (1997). The latest White Paper is available on the Internet at http://www.env.go.jp/policy/hakusho/ (last visited Sept. 26, 2002).

8. Michio Nishihara, Kogai ni Taisuru Shihoteki Kyusai no Tokushitsu to Kino, KOGAI-HO NO KENKYU 41 (Kaino ed. 1969).

9. Ministry of the Environment, Heisei 12 Nendo Dojo Osen Chosa Taisakujirei Oyobi Taioujoukyou ni Kansuru Tyousa Kekka no Gaiyou, at http://www.env.go.jp/water/report/h14-01/03-1.pdf (last visited Mar. 6, 2002).

10. Willkommen bein Umweltbundesamt: (UBA), Bundesweite Ubersicht zur Altlastenerfassung, at http://www.unweltbundesamt.de/altlast/webl/deutsch/1_6htm (last visited May 05, 1999).

11. JOHN A. HIRD, SUPERFUND — THE POLITICAL ECONOMY OF ENVIRONMENTAL RISK 7 (1994).

12. Tadashi Otsuka, Shigaichi Dojo Osen Joka no Hiyofutan, 1038 JURISUTO 73 (1994).

13. See G. WILLIAM PAGE, CONTAMINATED SITES AND ENVIRONMENTAL CLEANUP 9 (1997).

14. Fumikazu Yoshida, High-Tech Pollution in Japan, 2 ENVTL. ECON. & POL'Y STUD. 95 (1999).

15. Fumikazu Yoshida, The Newest Situation of High-Tech Pollution, 22 MAN & ENV'T 173 (1996).

16. According to the White Paper on Environment 1999, the environmental criminal arrests regarding waste disposal were 79.5%. Among environmental arrests under the Waste Disposal Law, illegal dumping arrests account for 71.8%. It indicates the seriousness and difficulty of new landfills and the not in my backyard (NIMBY) syndrome. See ENVIRONMENT AGENCY, THE WHITE PAPER ON ENVIRONMENT 1999, DETAILED EDITION 312-22 (1999) [hereinafter ENVIRONMENT AGENCY, DETAILED EDITION].

17. See ENVIRONMENT AGENCY, supra note 7.

18. Suishitsu Odaku Boshi Ho, Law No. 138 of 1971.

19. Noyochi no Dojo Osen Boshi to ni Kansuru Horitsu, Law No. 139 of 1971.

20. NIHON TOCHI HO GAKKAI, KOUGAI NO GENIO KAIFUKUTAKUCHI KAIHATSU TO NOGYO 35 (1980).

21. See ENVIRONMENT AGENCY, supra note 7.

22. Id.

23. See ENVIRONMENT AGENCY, DETAILED EDITION, supra note 16, at 126-27.

24. 674 HANREI JIHO 25, 280 HANREI TIMES 182 (Kanazawa Branch of Nagoya High Ct., Aug. 9, 1972).

25. See Minoru Yoshihara, Kankyo-Osengen no Fukugen Wo Mezashite, 48-4 HORITSU ZIHO 166-67 (1976).

26. YANAGI, DOJO OSEN TO KIGYO NO SEKININ 381 (Ichiro Kato ed. 1996).

27. Hachioji Dist. Ct. temporary order (Mar. 8, 1995) (full name not available).

28. See Yoshida, supra note 14; SUMITOMO MARINE INSURANCE CORPORATION, DOJO CHIKASUI OSEN TO KIGYO RISK 105 (1997).

29. See DOING BUSINESS IN JAPAN (Statute Vol.) (Kitagawa ed. 1999).

30. MINPO, art. 722, P1; MINPO, art. 417.

31. Kaneo Shimizu, Kougai no Kyusai Toshiteno Genjo Kaifuku, 83 MIN SHOHO ZASSHI 354 (1980).

32. See Deborah R. Hensler et al., Understanding Mass Personal Injury Litigation: A Socio-Legal Analysis, 59 BROOK. L. REV. 961, 963 (1993).

33. YUTAKA SAWAI, CHUSHAKU MINPO (19) SAIKEN (10) [ANNOTATED CIVIL LAW (19)] 344 (Ichiro Kato ed. 1977). See ICHIRO KATO, FUHOKOUI [TORTS] (20th ed. 1990).

34. HAJIME NISHIHARA, BUSINESS AND THE ENVIRONMENT 41 (Michel D. Rogers ed., 1995).

35. 642 HANREI JIHO 96 (Niigata Dist. Ct., Sept. 29, 1971).

36. Id. at 96.

37. Itai-Itai Disease case: Aoyama v. Mitsui Kinzoku, 674 HANREI JIHO 25, 280 HANREI TIMES 182 (Kanazawa Branch of Nagoya High Ct., Aug. 9, 1972). Unlike other benchmark cases, the plaintiff only needed to prove causation since this case fell under Mining Law Article 109, which provides for strict liability. Kogyo Ho, Law No. 289 of 1950, art. 109. As an English reference, see Fumikazu Yoshida et al., Itai-Itai Disease and the Countermeasures Against Cadmium Pollution by the Kamioka Mine, 2 ENVTL. ECON. & POL'Y STUD. 215-29 (1999).

38. 696 HANREI JIHO 15, 294 HANREI TIMES 108 (Kumamoto Dist. Ct., Mar. 20, 1973).

39. Ono, 642 HANREI JIHO at 96; Watanabe, 696 HANREI JIHO at 15, 294 HANREI TIMES at 108.

40. TOSHIYASU TOMII, KOGAI TO KANKYOHOU NO TENKAI 9-10 (Tomii et al. eds., 1987).

41. See W. PAGE KEETON ET AL., PROSSER AND KEETON ON TORTS § 52, at 347 (5th ed. 1984).

42. 672 HANREI JIHO 30, 280 HANREI TIMES 100 (Yokkaich Branch of Tsu Dist. Ct., July 24, 1972).

43. Taiki Osen Boshi Ho [Air Pollution Control Law], Law No. 97 of 1968, art. 25; Suishitsu Odaku Boshi Ho [Water Pollution Control Law], Law No. 138 of 1970, art. 19. Both the air and water pollution control laws impose non-fault liability in case of any injury to human life or health.

44. Tetsu Ueki, Dojo Osen ni Tsuiteno Ichi Kanken, in GENDAISHAKAI TO MINPOGAKU NO DOKOU 389 (1992).

45. NAOHIRO HARADA, KANKYO-HOU [ENVIRONMENTAL LAW], 129 (revised ed. 1995).

46. Noyochi no Dojo Osen Boshi to ni Kansuru Horitsu, Law No. 139 of 1971.

47. ENVIRONMENT AGENCY, supra note 7.

48. Haikibutsu no Shori Oyobi Seiso ni Kansuru Horitsu, Law No. 137 of 1970, Amended Law No. 84 of 1990, and Amended Law No. 85 of 1997. Like the Resource Conservation and Recovery Act (RCRA), it contains the manifest system to track present disposal, however, as is the same problem in RCRA, it cannot handle wastes that were dumped in the past.

49. Haikibutsu no Shori Oyobi Seiso ni Kansuru Horitsu, Amended Law No. 85 of 1997, art. 3, P1.

50. Id. art. 10, P1.

51. Id. art. 12, P4.

52. Id. art. 19, P4.

53. See 6 MITSURU NAKAYAMA, DOING BUSINESS IN JAPAN ch. 10, Environmental Protection (Kitagawa gen. ed. 1999). In 2001, the EA was changed to the Ministry of the Environment.

54. Y. Harashima et al., Comparative Environmental Policies in East Asian Countries, 1 ENVTL. ECON. & POL'Y STUD. 46 (1998).

55. See NAKAYAMA, supra note 53, at XI 1-135 Administrative Law § 1.14(1).

56. Kankyo Kihon Ho, Law No. 91 of 1993.

57. HARADA, supra note 45, at 168.

58. Yoshida, supra note 14, at 95.

59. Nobutaka Takahashi, Kankyou Hozen no Aratana Shuhou no Tenkai, JURISUTO, May 1999, at 49 (special ed.).

60. Hadano-C Chikasui Osen no Boshi Oyobi Joka ni Kansuru Jorei, Hadano City Ordinance No. 17, 1994.

61. Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. §§ 9601-9675, ELR STAT. CERCLA §§ 101-405.

62. HADANO CITY COUNSEL ENVIRONMENT DIVISION, MEISUI HADANO BONCHI WAKIMIZUGUN NO FUKKATSU NI MUKETE 52 (revised ed. Feb. 1998).

63. Id. at 56.

64. Id. at 53.

65. Fumikazu Yoshida, Geological Pollution and Cleanup System, 21 MAN & ENV'T 147 (1995).

66. According to the statistics for food use agricultural products general self-sufficiency rate as reported by the Ministry of Agriculture, Forestry, and Fisheries, Japan's self-sufficiency rate was 42% in 1995, 47% in 1990, and 52% in 1985.

67. MAINICHI newspaper, Nov. 26, 1995.

68. NIHON KEIZAI newspaper, Feb. 9, 1998.

69. See S. REP. NO. 104-185 (1995).

70. ENVIRONMENT AGENCY, DETAILED EDITION, supra note 16. See also NIHON TOCHI HO GAKKAI, supra note 20, at 36.

71. U.S. GENERAL ACCOUNTING OFFICE, HIGH-RISK SERIES: SUPERFUND PROGRAM MANAGEMENT 14 (1997) (GAO/HR-97-14).

72. PAGE, supra note 13, at 78.

73. Id. at 77.

74. Id.

75. Tadashi Otsuka, Eupope Shuyokoku Niokeru Dojo-Osen Joka no Hiyo Futan no Genjou to Wagakunihe no Sisa, No. 1071, at 92 (1995). See PLANNING AND COORDINATION DIVISION, PLANNING AND COORDINATION BUREAU, ENVIRONMENT AGENCY, THE COMMENTARY ON THE BASIC ENVIRONMENTAL LAW, KANKYOU KIHON HOU NO KAISETSU (1994).

76. Osami Nakasugi, Kagaku Busshitsu no Genjou to Kadai, JURISUTO, May 1999, at 173 (special ed.).

77. PAGE, supra note 13, at 11.

78. See id. at 157.

79. Otsuka, supra note 75, at 92.

80. See U.S. GENERAL ACCOUNTING OFFICE, supra note 71, at 7.

81. Id. at 8-10.

82. Id. at 7.

83. Tadashi Otsuka, Beikoku no Superfund how no Genjou to Wagauni Heno Shisa, 569 NBL 60 (1995).

84. See United States v. Northeastern Pharm. & Chem. Co., 810 F.2d 726, 17 ELR 20603 (8th Cir. 1986).

85. Nagoya Rashi Kabushikigaisha v. Saburo Naruse, Mayor of Iwakura City, 80 HANREI JIHO 1217 (Sept. 29, 1986).

86. PAGE, supra note 13, at 143.

87. Yasutaka Abe, Haikibutsu Shori Ho no Kaisei to Nokosareta Hoteki Kadai (4), 69 JICHI KENKYU 35 (1993).

88. PAUL FREEMAN, ENERGY, ENVIRONMENT, AND THE ECONOMY 224 (Paul R. Kleindorfer et al. eds., 1996).

89. Id.

90. Dojo Osen Taisaku Ho [Soil Contamination Prevention Law] (Law No. 53) (effective Feb. 15, 2003). A final version of the law's implementing regulations were to be issued in late 2002. See Ami Tanabe et al., An Overview of Japan's New Soil Contamination Control Law—Has Superfund Come to Japan?, CLIENT ALERT (Paul, Hastings, Janofsky & Walker L.L.P.), Oct. 2002, at 1.

91. Law Concerning Reporting, etc. of Releases to the Environment of Specific Chemical Substances and Promoting Improvements in Their Management. Kakuho No. 88 (1999).

92. PAGE, supra note 13, at 188-89.

33 ELR 10290 | Environmental Law Reporter | copyright © 2003 | All rights reserved