Ministry of Environmental Protection released the Measures of Competent Environmental Protection Department for Constraint of Production and Ceasing Production for Corrections (hereinafter referred to as the Measures) on December 19, 2014, which comes into effect as of January 1, 2015. The Measures require that environmental protection department at all levels shall strictly carry out measures for constraining production or ceasing production for corrections and punish the conducts of discharge of pollutants exceeding the standard or cap in accordance with relevant procedures. A journalist of China Environment News had an interview with the person in charge from MEP Bureau of Environmental Supervision in terms of the release of the Measures.
China Environment News: would you please introduce the background of releasing the Measures?
Answer: First, the development of the Measures is the requirement for administration according to law by environmental protection departments. The Decision of the Central Committee of Communist Party of China on Some Key Issues Concerning Comprehensively Promoting the Rule of Law requires that we should “employ strict legal system to protect eco environment, accelerate the development with effective constraints; promote the ecological civilization laws and regulations for green development, circular development and low carbon development; strengthen the legal responsibility of producers for environmental protection and greatly raise the cost of infringements”. Strict legal system is the basic prerequisite and framework for governments and departments at all levels to carry out all eco environment protection measures. Article 60 of the newly amended Environmental Protection Law stipulates that the competent environmental protection department may order the enterprises or institutions with pollutant discharge going beyond the standard or total amount and other production and operation units to constrain its production or stop production for corrections. This is the strong law enforcement approach that the newly amended Environmental Protection Law grants environmental protection departments that directly constrain or even stop the production of polluters with environment infringements and urge them effectively finish pollution control tasks. To guide successful use of this administrative approach by environmental protection departments at all levels according to law, we urgently need the release of relevant supporting system to make clear the rights, obligation and responsibility of each party. In particular, we should make clear and standardize the specific conducts and procedures of environmental protection department for constraint of production or ceasing production for corrections with the help of system, make environmental protection departments at all levels enforcement relevant law according to the same criteria, better fulfill legal responsibility and fully carry out the newly amended Environmental Protection Law.
Second, the development of the Measures is the requirement for cracking down environmental infringements. With economic and social development and rising public awareness in environmental protection, environmental protection departments at all levels are facing increasing pressure for environmental supervision. For some polluters with prominent environmental problems such as long-term discharge of pollutants going beyond the standard or cap or even toxic pollutants, it is not enough for environmental protection departments to only employ administrative law enforcement approaches such as administrative punishment and ordering them to make corrections within a given period of time. With the application of the approaches such constraint of production or ceasing production for corrections, we could force polluters to make corrections, develop targeted pollution control program, optimize technologies or equipment for pollution control, and address the problems of non-attainment or pollutant discharge exceeding the cap at the root. Therefore, when environmental protection departments are facing difficult issues, the Measures could help them flexibly use the approaches such as ordering constraint of production or ceasing production of relevant enterprises for corrections, effectively crack down environmental infringements, improve law enforcement effects and promote environment supervision work.
Third, the development of the Measures is the requirement for strengthening the responsibility of polluters for environmental protection. According to the common principle of “polluters pay” in the world, polluters are the subject with direct responsibility for environmental protection and have the obligations for correcting their conducts of discharge of pollutants beyond the standard or total amount, addressing environmental problems and making public environmental information about the process and results of pollution control. However, environmental protection departments find that some polluters think that pollution control is the responsibility of environmental protection department, are indolent in fulfilling their obligations, passively wait the instructions of environmental protection department, and lack the awareness of “whoever causes the pollution must control it”. Therefore, it is necessary to develop the Measures. With relevant provisions, the Measures make clear that polluters should be the main body for implementation of the measures such as constraint of production or ceasing production for corrections. The Measures also identify all obligations they should meet, and further strengthen the responsibility of polluters as the main body.
Fourth, the development of the Measures is the requirement for standardizing relevant systems. Constraining production or ceasing production for corrections are the extension and expansion of the deadline for bringing pollution under control described in the original Environmental Protection Law. Because there is no amendment of special laws such as the Law of the People’s Republic on Prevention and Control of Water Pollution, Law of the People’s Republic on Prevention and Control of Atmospheric Pollution and Law of the People’s Republic on Prevention and Control of Environmental Noise Pollution, they have different requirements for the conditions and decision organs for deadline for bringing pollution under control as well as the punishment for exceeding the deadlines, we need develop special supporting system to standardize the implementation of constraint of production or ceasing production for corrections in order to address the conflicts resulting from application of special laws and the newly amended Environmental Protection Law. In addition, because the procedures of existing deadline for bringing pollution under control are quite complex and cannot meet current requirements for environment supervision, the deadline for bringing pollution under control gradually fades out in the newly amended Environmental Protection Law. Thus, there comes the need for developing supporting Measures that make the constraint of production or ceasing production for corrections better meet practical needs for environmental law enforcement with stronger operability.
China Environment News: would you please introduce the main contents of the Measures?
Answer: There are 22 articles in four chapters in the Measures. Chapter I General Provisions identifies the aim and bases of the legislation, applicable scope, information disclosure requirement and so on. Chapter II Applicable Scope identifies the applicable circumstances and exceptions for constraining production, ceasing production for corrections and reporting the government for termination of business or close down. Chapter III Implementation Procedures stipulates the procedures for implementation, cancel and termination of the measures such as constraint of production and ceasing production for corrections and requires follow-up supervision and inspection. Chapter IV Supplementary Provisions presents the text interpretations and the effective time of the Measures.
The main contents of the Measures are the following 3 parts:
1) Make clear the applicable circumstances for constraint of production, ceasing production for corrections and reporting the government for closing down. Article 60 of newly amended Environmental Protection Law may only order the enterprises, institutions and other production operators with discharge of pollutants going beyond the standard or cap to constrain production or cease production for corrections. It also presents requirements in principle for serious pollution reported to the government that orders close down of relevant enterprise. However at the level of law enforcement of environmental protection departments, only with clear applicable circumstances can we carry out appropriate discretion and prevent the abuse of power. The Measures present special requirements in Chapter II based on wide investigation and soliciting several times of the comments and suggestions of all parties concerned.
Article 5 of the Measures takes the constraint of production as the general applicable provision for the conducts of exceeding the standard or the daily maximum amount. Article 6 classifies 6 circumstances of the requirements of Article 60 of newly amended Environmental Protection Law. Paragraph 6 is the miscellaneous provision. Paragraph 1 ~ 5 make detailed and specific requirements for avoiding supervision, no-attainment of special substances, discharge of pollutants exceeding annual cap, no attainment after ordering of constraint of production and discharge pollutants exceeding standard or control cap due to pollution accidents, they are conducive to accurate implementation by law enforcement people. Article 8 defines the “serious circumstances” in Article 60 of newly amended Environmental Protection Law. Any case meeting one of the 4 circumstances listed in the Measures is a serious case, and environmental protection department shall report it to the government that will order relevant enterprise to shut down.
2) Make detail of the implementation procedures for constraint of production and ceasing production for corrections. Chapter III of the Measures divides the implementation procedures for constraint of production or ceasing production for corrections into several steps such as investigation & taking of evidence, review and approval, notification and hearings, making decisions and delivery and identifies cancel and termination procedures for constraint of production or ceasing production for corrections. Meanwhile, it identifies the obligations of environmental protection departments for follow-up supervision and inspection.
According to the requirements of the Measures, before making the decision on constraint of production and ceasing production for corrections, relevant authority should conduct successful investigation. It shall not submit the decision in writing to the head of environmental protection department for review and approval until it obtains sufficient evidence proving the infringements. Moreover, environmental protection department should inform polluter before making the decision of constraint of production or ceasing production for corrections and organize public hearings after its application for public hearings. With these activities as the bases, environmental protection department may make its decision on constraint of production or ceasing production for corrections and inform the polluter. In addition, the Measures also list the conditions for removal and termination to facilitate the operation of environmental protection departments.
3) Make more efforts in supervision on constraint of production or ceasing production for corrections. In order to carry out the measures for constraint of production and ceasing production for corrections and make more efforts in supervision on the implementation of the polluter for the decision on constraint of production and ceasing production for corrections, the Measures present requirements in two areas to ensure the implementation.
One is follow-up supervision. The Measures require that after ordering polluters to constrain their production or cease production for corrections, the competent environmental protection department in line with relevant regulations shall conduct follow-up supervision on the implementation of the measures by the polluters for constraining production or ceasing production for corrections and handle the case or impose sanctions according to law. The Follow-up Supervision Measures for Environmental Law Enforcement released by Ministry of Environmental Protection clearly requires that the competent environmental protection department shall identify the deadline, procedures and approach of follow-up supervision after releasing the decision of administrative punishment or administrative orders. The current Measures do not copy it, environmental protection departments could directly quote relevant requirements.
Another is follow-up inspection. The Measures require that after removal of the measures for constraint of production or ceasing production for corrections, the competent environmental protection department shall conduct follow-up inspection on polluters within 30 days since the date of removal. If the follow-up inspection finds the case of pollutant discharge still exceeding the standard or cap, environmental protection department may start again the procedures of constraint of production and ceasing production for corrections based on the Measures or report it to the government for shut down and handle or punish the polluter according to law. This will deter polluters and urge them to discharge pollutants meet relevant standard and cap control requirement.
China Environment News: Would you please introduce the major characteristics of the Measures?
Answer: First, combine strict environment law enforcement with enhancement of self discipline of enterprises. The most striking characteristics of the Measures is based on the legislation gist of the newly amended Environmental Protection Law, let the polluter as the main body be responsible for environment problems due to discharge of pollutants going beyond pollutant discharge standard or the cap indicator; make self discipline of polluter as the bases for constraining production and ceasing production for corrections. They specifically are reflected in the following 3 areas: 1) Put on file of the correction program. Article 16 of the Measures require that polluters shall report the correction program to the competent environmental protection department for file within 15 working days after receiving the letter of constraint of production or order of ceasing production for corrections and make it public. 2) Self check on the correction process. The Measures stipulate that during the correction period, the polluters subject to constraint of production shall conduct monitoring work in accordance with the monitoring technical standards or entrust monitoring institution with conditions for monitoring work and keep monitoring records. 3) Assume correction responsibility by itself. The Measures stipulate that when polluter finishes corrections, he shall report the completion and disclosure of correction information to the competent environmental protection department for file. The decision on constraint of production or ceasing production for correction shall be cancelled since the date when the polluter reports it to the competent environmental protection department for file. The arrangement of the cancelling procedure further enhances the responsibility of polluters as the main body. The cancel of the decision of constraint of production or ceasing production for corrections no longer depends upon the procedures of environmental protection departments such as check and acceptance, rather, it depends on polluter himself, this could greatly mobilize the initiative of polluters for corrections. Meanwhile, various kinds of documents submitted by polluters for file are mainly for proving the fact of completing the corrections. Therefore, polluters should be responsible for the authenticity of the submitted documents. In case of being suspected of providing false information or falsifying or forging monitoring data, the polluter shall assume the responsibility according law. This is conducive to enhancing self discipline of polluters.
Second, strengthen the combination of heavier punishment with safeguarding public interests. Article 7 of the Measures especially stipulates that if operators of public facilities such as urban sewage treatment, garbage treatment and disposal of hazardous waste; production organizations whose business involves basic public welfare and interests or polluters that may affect production safety in case of ceasing production for corrections discharge pollutants exceeding pollution discharge standard or cap indicator of major pollutants, the competent environmental protection department shall punish them according to relevant laws and regulations on environmental protection, and may not cease their operation for correction. To be sure, if the discharge of pollutants of the above mentioned polluters exceeding pollutant discharge standard or the control cap of major pollutants pollutes the environment and damage public environmental rights and interests, environmental authority shall serious investigate and punish the polluters. However, if ceasing operation of the above polluters for correction imposes greater threat to public security and interests, “The lesser of two evils”, the Measures stipulate the same level of administrative punishment but the measures of ceasing production for corrections may not be conducted taking account of the maximum social and public interests.
Third, enhance the combination of environment supervision with information disclosure. The newly amended Environmental Protection Law adds a special chapter “Information Disclosure and Public Participation”. Based on the aim of legislation, the Measures reflect the information disclosure policy in many details. For example, Article 4 clearly requires information disclosure of environmental protection departments. It requires that environmental protection departments should make public relevant information such as the decisions on constraint of production or ceasing production for corrections, extension of the constraint of production and the date of cancel the constraint of production or ceasing production for corrections. Article 16 and Article 17 require that polluters should make public their correction program and information about the corrections. These requirements make the decision of constraining production or ceasing production for corrections more open and transparent and are conducive to public participation, thus, we have developed a management mode featuring government supervision, self discipline of enterprise and public supervision, which ensures good implementation of the decision of constraining production or ceasing production for corrections.
Fourth, combination of standardizing internal procedures with safeguarding legitimate rights of the party concerned. Considering that constraining production or ceasing production for corrections concerns major interests of polluters, the Measures design very cautious internal procedures before making the decision by environmental protection departments. Meanwhile, the Measures fully consider ensuring legitimate rights and interests of administrative counterpart. For example, the Measures require that before environmental protection department making a decision on constraint of production or ceasing production for corrections, it shall report in writing to the head of the competent environmental protection department for approval. In case of important and complicated cases or that with big social impact, it shall be reviewed and decided by all members of Case Review Committee of the competent environmental protection department. In addition, the polluter shall be informed of relevant facts and bases as well as his legal rights for statement, defense or application for public hearings.
China Environment News: Would you please introduce the principle that environmental protection departments should follow in the implementation process?
Answer: 1) Strict administration according to law. The Measures stipulate that if any polluter discharge pollutants still exceeding pollutant discharge standard after being ordered to constrain its production, the competent environmental protection department may order it to cease production and take control measures. In case that any polluter after receiving the order of stopping production rejects ceasing production or resumes production without permission or has the same infringement identified by follow-up check by environmental protection department after cancelling the decision of ceasing production for corrections, environmental protection department shall report it to the people’s government with approval authority that will order it to stop operation or shut down. These requirements establish the closed flow process of environmental supervision from issuing the decision of constraining production or ceasing production for corrections to follow-up supervision and inspection followed by post treatment. Environmental protection departments at all levels must carry out relevant administrative conducts strictly in line with the procedures of each stage and fulfill their responsibilities.
2) Appropriate discretion. When ordering polluters to limit their production or stop production for corrections, environmental protection departments at all levels shall handle well the relations among measures of constraining production or ceasing production for correction and administrative order to correct environmental infringement and administrative punishment. The three are administrative management measures of environmental protection departments for the type of environmental infringements such as discharging pollutants exceeding pollution discharge standard or control cap for major pollutants. They could be taken at the same time and do not mutually exclude or replace.
Ordering corrections and carrying out administrative punishment are the necessary measures for environmental infringements. But ordering the constraint of production or ceasing production for corrections need appropriate discretion based on the Measures and practical circumstances, and flexible application in law enforcement practice. In general, the implementation of the measures of constraining production or ceasing production for corrections is applicable to the polluters with relatively serious pollution and in need of certain correction period. In case that polluter could immediately correct its infringements and finish the task on pollution control, there is no need for simultaneous implementation of the measures of constraint of production and ceasing production for corrections.
3) Strengthen information disclosure. When ordering the polluter subject to the measures of constraint of production or ceasing production for corrections to make public relevant information, the environmental protection department assuming main responsibility for environment supervision should take initiative to make public environment supervision information such as administrative punishment and ordering polluters to correct their infringements, ordering polluters to constrain production or cease production for corrections as well as cancel of such order according to relevant regulations on disclosure of the information about supervision of pollution sources, let people understand in time of the corrections of polluters and accept public supervision.
