Who is responsible for managing waste from the construction site?
Lao Dong Newspaper has just published a series of articles reflecting irregularities in the transportation and treatment of solid waste from the area where the Linh Nam road (Hanoi City) upgrade and expansion project is implemented.
Both the investor and the contractor believe that the vehicles recorded by PV belong to cases where people dismantled and transported them themselves. However, the basis for demarcation with waste belonging to the bidding package, volume and control mechanism for transportation have not been clarified.
Talking to PV of Lao Dong Newspaper about this issue, Lawyer Tran Xuan Tien - Head of Dong Doi Law Office (Hanoi Bar Association) - commented: "In the process of public investment and construction management, this is not considered a reasoning to have explanatory value for exemption or mitigation of liability. Investors and contractors have an obligation to control the entire life cycle of waste from dismantling to the final treatment point.
Letting people arbitrarily come to take and take away partly clearly shows the lax management of the construction site, violating security and environmental safety control procedures at the project" - Lawyer Tran Xuan Tien stated his opinion.
According to the lawyer, in some cases, contractors let people freely carry waste out of the construction site without controlling the destination point, leading to waste being illegally dumped at some other locations, then the contractor and the investor are still the main responsible parties because of the act of transferring waste to units/individuals without handling functions and capacity.
Based on Clause 1, Article 6 of the 2020 Law on Environmental Protection, the transportation, burial, filling, dumping, discharging, and burning of solid waste and hazardous waste not in accordance with technical procedures and regulations of the law on environmental protection is one of the prohibited acts.
For most public investment projects using state budget capital, transportation and treatment costs of solid waste are a cost item that is calculated correctly in terms of quantity as well as sufficient transportation distance and legal disposal fees.In fact, if waste is not brought to the correct location specified in the contract and the approved estimate, intentional or irresponsible acceptance and payment will cause serious legal risks for other related parties.
Warning about risks in acceptance and payment
Notably, legal experts raise the risk of fictitious acceptance of bidding packages using the budget.
Risks of fictitious acceptance and dossier fraud may occur. Transportation costs are calculated based on actual distance. Pouring at a closer location or underground disposal site does not cost money, meaning the actual distance is shorter or the actual cost incurred is lower, there will be risks of fictitious acceptance or dossier fraud.
For example, if the parties still sign acceptance minutes, prepare dossiers to pay 100% of transportation costs and disposal fees as in the initial estimate, this is considered an act of creating false documents, acceptance not in accordance with reality. At this time, related individuals are at risk of being prosecuted for criminal responsibility for the crime of abusing positions and powers while performing official duties if they cause damage to the state budget" - Lawyer Tran Xuan Tien stated his opinion.
The lawyer also noted the risk of violating regulations on environmental protection and costs of remediation. Accordingly, the violating party must pay the entire cost of excavating and transporting the entire volume of waste dumped in violation of regulations back to the legal disposal site, and at the same time restore the original environmental status. These costs of remediation are entirely paid by the Contractor (or the violating party) themselves, and are not allowed to be accounted for in project costs or use the state budget for payment.
From the abnormalities of solid waste transport vehicles of the Linh Nam road upgrade and expansion project to legal analysis, it shows that functional agencies really need to get involved to clarify and handle it promptly.
