To implement the newly revised Environmental Protection Law and practically carry out the supervisory powers and tools entrusted to environmental protection departments by the new law, on December 19, 2014, MEP issued four supplementary measures including the "Measures of the Competent Environmental Protection Department on Enforcement of Continuous Daily Fines". On the introduction of these four supplementary measures, our reporter recently interviewed a relevant official from the Bureau of Environmental Supervision of MEP.
China Environment News: Under what circumstances are these four measures introduced?
Reply: Firstly, there is an urgent requirement for implementing the new Environmental Protection Law. The newly revised law provides environmental protection departments with many new supervisory powers and tools. Such measures as continuous daily fines, seizure and distrainment of property, restricted production and production suspension for rectification make the new law a sharp weapon of "mass destruction". However, as continuous daily fines, seizure and distrainment of property and other measures are all brand new, the provisions of the Environmental Protection Law are principle and general, and environmental protection departments at all levels generally have little experience in legal practice, it is important that we should formulate supplementary implementing measures to standardize such items of each provision as the scope of application, implementation procedures and supervision methods, with a view to truly turning these new regulatory instruments into a powerful weapon for our environmental protection departments to crack down on environmental violations and urge the polluters to conscientiously fulfill their obligations as the main body responsible for environmental protection, and releasing their full force.
Secondly, there is an urgent requirement for environmental protection departments to carry out law-based administration. The "Resolution of the Central Committee of the Communist Party of China on Certain Major Issues Concerning Comprehensively Advancing the Law-Based Governance of China" indicates that, we should uphold strict, normative, impartial and civilized law enforcement, punish various types of violations in accordance with the law, intensify law enforcement in key areas involving people’s immediate interests, improve the procedures for law enforcement, define the specific operating processes, and focus on standardizing law enforcement activities including administrative compulsion. The very life and authority of the law lie in its implementation. "It is never difficult to legislate, but it is difficult to enforce the legislation." To comprehensively advancing the law-based governance of China, we should put emphasis on ensuring the strict enforcement of the laws. Such measures as continuous daily fines, seizure and distrainment of property, restricted production and production suspension for rectification are very "lethal" as they can easily infringe on or cause unnecessary damage to the concerned person’s rights and interests. To establish and improve legislation and to strengthen standardization of and supervision on actual operation used to implement the measures are therefore of great significance to protecting the legitimate rights and interests of the concerned person(s). They are also the inevitable requirements for promoting the law-based governance of China.
Thirdly, there is an urgent requirement for taking strong measures to crack down on environmental violations. With the development of economy and society, as well as the rising awareness of environmental protection, environmental departments at all levels are facing increasing pressures on supervision. Regarding to those serious environmental violations including prolonged malicious stealthy-discharging, repeat offenders, excessive discharge of pollutant and pollutant load discharged above permitted limit, with only administrative law enforcement methods such as administrative penalties and the order to make correction within a specified time limit, environmental departments have been unable to urge the offenders to effectively rectify. We are thus required to adopt stronger measures to substantially aggravate the punishment. Continuous daily fines, seizure and distrainment of property, restricted production and suspension for rectification are powerful measures, the combination of which can effectively crack down on environmental violations, enhance the effectiveness of law enforcement and escalate environmental supervision.
Fourthly, there is an urgent requirement for strengthening the polluter’s obligation as the main party responsible for environmental protection. The newly revised Environmental Protection Law establishes the principle of "accountability for damages", stipulating that enterprises, public institutions and other manufacturers/business operators shall prevent and reduce environmental pollution and ecological destruction, and shall be liable for the resulting damages in accordance with the law. As the direct main party responsible for protecting the environment, polluter is under the obligation to correct the illegal discharge of pollutant, solve existing environmental problems and has the duty to make environmental information including the pollution treatment process and result available to the public. However, we have found in our law enforcement practices that, some polluters turn over the responsibility for pollution remediation to our environmental protection departments, rely on us to provide remediation plan and conduct the acceptance inspection and environmental verification. Without a self-awareness of responsibility, these polluters are lazy to fulfill their obligations, and negatively wait for instructions from environmental departments. These four measures will thus further strengthen the polluter’s obligation as the main party responsible for environmental protection, specify each obligation imposed and emphasize on the timeliness of correcting violations and the initiative of implementing rectification measures.
China Environment News: Would you please brief us on the main contents of these four supplementary measures?
Reply: The "Measures of the Competent Environmental Protection Department on Enforcement of Continuous Daily Fines" has 22 articles in four chapters. By focusing on the Article 59 of the new Environment Protection Law in imposing continuous daily fines on "illegal pollutant discharge" and "refusal to correct", it specifies the categories of violations subject to this fine, standardizes the procedures for imposition, clarifies the contents and forms of the orders for corrections, sets the criteria in determining the conduct of refusing to stop illegal discharge of pollutants, provides the calculation method of a continuous daily fine, and identifies the complementarity of the continuous daily fine system and other environmental protection systems.
The "Measures of the Competent Environmental Protection Department on Seizure and Distrainment of Property" has 25 articles in four chapters mainly designed to address some front-line law enforcement officials’ problems of lacking the knowledge and courage to apply the seizure and distrainment of property. While regulating the exercise of power, these measures can substantially reduce the enforcement risk caused by the misuse or abuse of seizure and distrainment of property. By focusing on the provision, that environmental departments "may seal up and detain the facilities and equipment causing pollutant discharge" in such cases as "illegal pollutant discharge" and "causing or having the potential to cause severe pollution", as specified in Article 25 of the new environmental law, the measures identify such items as the definition, applicable scope, object, implementation procedure, and oversight and inspection of seizure and distrainment.
The "Measures of the Competent Environmental Protection Department on Restricted Production and Production Suspension for Rectification" has 22 articles in four chapters. By focusing on the Article 60 of the new law, that such measures as "restricted production", "production suspension for rectification" and "closure or shutdown" may be applied to the offence of discharging pollutants "in excess of emission standards or in excess of the total emission quota", these measures aim to identify the applicable circumstances of "restricted production", "suspended production for rectification" and "applying for government approval for operation shutdown", refine implementation procedures for restricting production and suspending operation to rectify, and strengthen supervision on enforcing these measures.
The "Measures on Sharing Environmental Information by Enterprises and Public Institutions" has a total of 18 articles. It adheres to not only meet the basic needs of the public for corporate environmental information, but also take the information disclosure capability of enterprises into account. It combines principles with feasibility, and focuses on addressing such issues as "who should disclose information", "what information should be disclosed", "how to disclose information" and "how to supervise information disclosure", i.e., the scope, content, approach and supervision of information disclosure.
China Environment News: What are the main characteristics of these four supplementary measures? Please illustrate.
Reply: Firstly, they combine severe punishment on illegally discharging pollutants with safeguarding the legitimate rights of the administrative counterpart. The refinement of the applicable circumstances and the design of the implementation procedures clarified in these four supplementary measures all pursuit the idea of increasing punishment. Pollutants are not allowed to illegally discharge pollutant for a single day, and once they break the law, they will be made to pay insufferable prices. To some abominable conducts of illegal pollutant discharge, financial penalties such as daily fine can be applied together with punishments of behavior including seizure and distraint, restricted production and suspended production, as well as personal punishments such as administrative detention. According to the design of daily fine system, rather than "making corrections within a time limit", polluters are ordered to stop discharging pollutant immediately, leaving no time space for them to "legally" discharge pollutants within the deadline. The reexamination of the correction should be secretly conducted within 30 days, so as to monitor the actual discharge of pollutants, deter the polluters from counting on luck and making the corrections only superficially, and push them to carry out genuine rectification and meet the requirements of legal discharges. Daily fine is not limited by the number of times. Administrative penalties won’t stop until the illegal discharges are gone.
Meanwhile, considering punishment measures such as daily fine, seizure and distraint, restricted production and suspended production have bearing on the vital interests of the polluters, we are very cautious and strict with the design of the internal procedure for environmental protection departments, with a view to fully taking the legitimate rights of the administrative counterpart into account. For instance, prior to making the decision of seizure and distraint, restricted production and suspended production for rectification, the environmental protection department should submit a written report to the person in charge of the competent environmental protection department for approval. Penalties for major cases or cases with serious social impact should be decided by the collective deliberation of the cases review committee of the competent environmental protection department. In addition, polluters should be informed about the relevant facts, basis, and their legal rights to state their cases, to defend themselves and to request a hearing.
Secondly, they combine conducting administration in strict accordance with the law with the actual situation of environmental enforcement, and focus on the practicability. The enactment of these four supplementary measures is strictly in compliance with the legal provisions of the "Environmental Protection Law", "Administrative Penalty Law", "Administrative Compulsion Law", etc., and implements the spirit of the "Resolution of the Central Committee of the Communist Party of China on Certain Major Issues Concerning Comprehensively Advancing the Law-Based Governance of China" to promote administration by law. In addition, these measures fully consider the actual need of environmental enforcement and innovate some provisions with environmental protection features. For example, as most objects of law enforcement are immobile large facilities and equipment, in accordance with the "Measures of the Competent Environmental Protection Department on Seizure and Distrainment of Property", immobile facilities and equipment or facilities and equipment with special storage requirements should be sequestrated on site. Seals may be posted on key components including control devices of the facilities and equipment or switching valves of water, electricity and gas leading to pollutant discharges. Pollution control facilities are not treated as facilities or equipment causing pollutant emission. Considering that it is very difficult for the grassroots law enforcement officials to identify such abstract behavior and concepts as "illegal pollutant discharge", "causing or maybe causing serious pollution" and "major pollutant-discharging entity", these four measures explicitly enumerate applicable circumstances for daily fine, seizure and distraint, restricted production and suspended production for rectification, and clearly define major pollutant-discharging entity for the grassroots to master and practice.
Thirdly, they combine strict legal enforcement with the strengthening of corporate self-discipline. After the new "Environmental Protection Law" was introduced, environmental departments, especially the grassroots law enforcement staff generally felt the pressures and heavy responsibilities. After the new law came into effect, they faced dual pressures of performance of duties and accountability. To better serve and guide the locals to do a good job in implementing the new environmental law, these four supplementary measures define the statutory duties and responsibility boundaries of environmental protection departments, and highlight that the polluter is the direct major party responsible for environmental protection. For example, the most prominent features of the "Measures of the Competent Environmental Protection Department on Enforcement of Continuous Daily Fines" and the "Measures of the Competent Environmental Protection Department on Restricted Production and Production Suspension for Rectification" are, on the basis of the legislative spirit of the new "Environmental Protection Law", the polluter being the major party responsible for stopping illegal pollutant discharge and conducting rectification, polluter’s self-discipline being the foundation of implementing the ordered correction, restricted production and suspended production for rectification, and polluter being responsible for its environmental behavior and damages. Once a polluter is ordered to limit production or suspend operation, it must file the rectification plan, conduct self-monitoring of the rectification process and bear the responsibility for rectification. The release of the restriction further strengthens polluter’s responsibilities as the main party for environmental protection. The removal of the decisions on restricted production and suspended production for rectification is no longer relied on environmental protection department’s verification and acceptance procedures, rather it depends on the polluter itself. The polluter’s enthusiasm and initiative for rectification can therefore be greatly mobilized. The polluter is required to take full responsibility for the results of the rectification, its self-discipline will thus be strengthened.
Fourthly, they combine the "zero tolerance" to illegal pollutant discharge with the protection of the public interest. While preserving environmental legal authority, environmental departments exercise administrative law enforcement to safeguard the public interests and social orders. The "Measures of the Competent Environmental Protection Department on Seizure and Distrainment of Property" and the "Measures of the Competent Environmental Protection Department on Implementation of Restricted Production and Production Suspension for Rectification" specifically stipulate that, in line with relevant environmental laws and regulations, the competent environmental department should punish and may not implement seizure and distraint of properties or suspension for rectification to public facility operators in such fields as urban sewage treatment, garbage disposal and hazardous waste disposal, polluters whose operation involve the basic livelihood and public interest, or the polluters whose production safety may be affected once sequestration or suspension for rectification is imposed. This provision follows the administrative principle of proportionality which is "the lesser of two evils", and reflects the legislative idea of careful implementation of sequestration and suspended operation for rectification.
The "Measures on Sharing Environmental Information by Enterprises and Public Institutions" identify the main parties and contents of information disclosure by firmly focusing on the "doorstep" environmental issues attracting public attention and concern. By disclosing information via ways easy for the public to access, these measures fully embody the principle of convenience for the people, satisfy the public’s right to know, and facilitate public participation in environmental management and supervision on enterprises for lawful discharge of pollutants.
Fifthly, they combine the increase of punishment with the disclosure of information. The new Environmental Protection Law adds a special chapter of "Information Disclosure and Public Participation". With the general principle of sharing environmental information running through, the four supplementary measures uphold the legislative intent. To adopt such three approaches as the daily fine, seizure and distrainment of property, and restricted and suspended operation, environmental protection departments are explicitly required to publish the decision of issuing a rectification order and imposing administrative penalty of daily fine, related information of the decision of sequestration, the extension and release of sequestration, and relevant information of the decision of restricted operation and suspended operation for rectification, the extension of restricted operation, and the date for the release of restricted operation or suspension for rectification. Also, the "Measures of the Competent Environmental Protection Department on Implementation of Restricted Production and Production Suspension for Rectification" requires the polluters to publicly disclose their rectification plan and related information. These regulations and requirements will facilitate public participation and supervision, therefore forming a management model of "government regulation, corporate self-discipline and public supervision", and amplifying the effects of environmental law enforcement.
The "Measures on Sharing Environmental Information by Enterprises and Public Institutions" are themselves rules and regulations to standardize enterprises’ information disclosure. Environmental departments should guide and supervise enterprises to disclose information, and give full play to the supervisory role of the public on pollutant discharge behavior.