Measures for Environmental Administrative Punishment (2010 Revision)

Measures for Environmental Administrative Punishment (2010 Revision) Order of the Ministry of Environmental Protection (No.8) The Measures for Environmental Administrative Punishment, which were amended and adopted at the 3rd executive meeting, 2009 of the Ministry of Environmental Protection on December 30, 2009, are hereby promulgated and shall come into force on March 1, 2010. The Measures for the Administrative Punishment for Environmental Protection promulgated by the former State Environmental Protection Administration on August 6, 1999 shall be abolished simultaneously. Minister of Environmental Protection: Zhou Shengxian January 19, 2010 Measures for Environmental Administrative Punishment Contents Chapter I General Provisions Chapter II Implementation Subjects and Jurisdiction Chapter III General Procedures Section 1 Case Filing Section 2 Investigation and Gathering Evidence Section 3 Case Examination Section 4 Notification and Hearing Section 5 Handling Decision Chapter IV Summary Procedures Chapter V Enforcement Chapter VI Case Conclusion and Filing Chapter VII Supervision Chapter VIII Supplementary Provisions Chapter I General Provisions Article 1 [Legislative Purposes] To regulate the imposition of environmental administrative punishment, supervise and safeguard the legal exercise of functions by the environmental protection administrative departments, maintain public interests and social order, and protect the legitimate rights and interests of citizens, legal persons and other organizations, these Measures are formulated in accordance with the Administrative Punishment Law of the People's Republic of China and other relevant laws and regulations. Article 2 [Scope of Application] Where any citizen, legal person or any other organization shall be given an environmental administrative punishment due to a violation of any law, regulation or rule on environmental protection, the punishment shall be imposed in accordance with the Administrative Punishment Law of the People's Republic of China and the procedures prescribed in these Measures. Article 3 [Combination of Punishment and Education] Environmental administrative punishments shall be imposed by combining education with punishment, and combining services with management, so as to direct and educate citizens, legal persons and other organizations to consciously abide by the law. Article 4 [Protection of Legitimate Rights and Interests] In the imposition of environmental administrative punishments, the legitimate rights and interests of citizens, legal persons and other organizations shall be protected pursuant to law, and the relevant technical secrets and trade secrets of the parties concerned shall be kept confidential. Article 5 [Separating Investigation from Imposition of Administrative Punishment] In the imposition of an environmental administrative punishment, the investigation and gathering of evidence shall be separated from decision-making in imposing administrative punishment, and the decision-making in imposing fines shall be separated from the collection of fines. Article 6 [Regulating the Exercise of Discretion] The exercise of discretion in administrative punishment must conform to the legislative purposes and take the following circumstances into comprehensive consideration: 1. the extent of environmental pollution, ecological damage and social influence caused by the violation; 2. seriousness of the violation of the party concerned; 3. the specific methods or means adopted in the violation; 4. the specific target of the violation; 5. whether the party concerned commits the offense for the first time or not; and 6. the attitude of the party concerned and the measures taken by the party concerned to make correction, and the effects of such measures. For violations of identical or similar circumstances and similar social harm, the types and extent of administrative punishment shall be identical or similar. Article 7 [Exemption of Punishment] If a violation is minor, has been corrected in a timely manner and has not done any harm, no administrative punishment shall be given. Article 8 [Withdrawal Circumstances] The case handling person shall withdraw if: 1. He is a party to the case at issue or a close relative of any party concerned; 2. He himself or any of his close relatives is a party who has a direct interest in the case at issue; or 3. any other circumstance under which he shall withdraw as prescribed in any law, regulation or rule. The case handling person who meets the conditions for withdrawal shall offer to withdraw, and the party concerned shall also have the right to apply for his withdrawal. Article 9 [Rules on the Application of Laws] Where a same violation of the party concerned contravenes two or more provisions of environmental laws, regulations or rules at the same time, the law, regulation or rule which is effective with a higher degree shall apply, and if the provisions are effective with a same degree, the article which gives a heavier punishment may apply. Article 10 [Types of Punishment] In accordance with the laws, administrative regulations and departmental rules, the types of environmental administrative punishment shall include: 1. warning; 2. fines; 3. ordering it to stop production for rectification; 4. ordering it to stop production, business operation or close down; 5. temporarily withholding or revoking its license or other certificates which are in nature a license; 6. confiscating its illegal gains or illegal properties; 7. administrative detention; or 8. any other type of administrative punishment as prescribed in any law or administrative regulation. Article 11 [Ordering for Correction and Determination of Continuous Violations] When the environmental protection administrative department imposes an administrative punishment, it shall timely give an administrative order forcing the party concerned to make correction or do so within a prescribed time limit. Where the time limit for ordered correction expires and the party concerned fails to make correction as required, and the violation is continuous or recurrent, it may be deemed as a new environmental violation. Article 12 [Forms of Ordered Correction] In accordance with the laws, administrative regulations and departmental rules on environmental protection, the specific forms of administrative orders that order the party concerned to make correction or do so within a prescribed time limit shall include: 1. ordering it to stop construction; 2. ordering it to stop pilot production; 3. ordering it to stop production or use; 4. ordering it to construct supporting facilities within a prescribed time limit; 5. ordering it to reinstall for use; 6. ordering it to dismantle within a prescribed time limit; 7. ordering it to stop the violation; 8. ordering it to undertake treatment within a prescribed time limit; and 9. any other specific form of administrative order of ordering the party concerned to make correction or do so within the prescribed time limit as prescribed in any law, regulation or rule. In accordance with the provisions of the Supreme People's Court on the types of administrative acts and regulating the causes of action of administrative cases, an administrative order is not an administrative punishment. The provisions on the administrative punishment procedures shall not apply to administrative orders. Article 13 [Obligation of Imposing Punishment without Exemption of Pollutant Charges] The imposition of environmental administrative punishment shall not exempt the obligation of the party concerned to legally pay pollutant charges. Chapter II Implementation Subjects and Jurisdiction Article 14 [Punishment Subjects] The environmental protection administrative department at or above the county level shall impose environmental administrative punishment within its statutory functions. The provisions of these Measures on the environmental protection administrative department shall apply to the imposition of environmental administrative punishment by the environmental supervisory organ authorized by laws, administrative regulations and local regulations within the scope of authority. Article 15 [Authorized Punishment] An environmental protection administrative department may, within its statutory functions, authorize an environmental supervisory organ to impose administrative punishments. The authorized environmental supervisory organ shall, within the scope of authorization, impose administrative punishments in the name of the authorizing environmental protection administrative department. The authorizing environmental protection administrative department shall be responsible for supervising the authorized environmental supervisory organs' imposition of administrative punishment and shall assume the legal liabilities for the consequences of such acts. Article 16 [External Transfer] If any environmental protection administrative department finds that a case is not under its jurisdiction, it shall transfer the case to the organ having jurisdiction according to the relevant requirements within the prescribed time limit. For a case in which the offender is suspected of any violation and shall be legally ordered by the people's government to stop production for rectification, suspend business operations or close down, the environmental protection administrative department shall file the case for investigation, put forward handling suggestions and report them to the people's government at the same level. For a case in which the offender is suspected of any violation and shall be given administrative detention, the case shall be transferred to the public security organ. For a case in which the offender violates any Party discipline or political discipline, the case shall be transferred to the relevant disciplinary inspection or supervision department. A case in which the offender is suspected of committing a crime shall be transferred to the judicial organ in accordance with the Provisions on Transferring Suspected Criminal Cases by Law Enforcement Administrative Organs and other relevant provisions, and no administrative punishment shall be imposed to replace criminal punishment. Article 17 [Jurisdiction over Cases] The environmental protection administrative department at or above the county level shall have jurisdiction over the cases on environmental administrative punishment within its administrative region. A case which causes pollution in two or more administrative regions shall be under the jurisdiction of the environmental protection administrative department at the place where the pollution occurs. Article 18 [Priority Jurisdiction] A case on environmental administrative punishment over which two or more environmental protection administrative departments have jurisdictions shall be under the jurisdiction of the environmental protection administrative department which is the first to find the pollution act or receive tip-off of the pollution. Article 19 [Settlement of Disputes over Jurisdiction] In the case of any dispute concerning jurisdiction over a case on administrative punishment, both parties to the dispute shall report the matter to their common superior environmental protection administrative department for designated jurisdiction. Article 20 [Designated Jurisdiction] If the environmental protection administrative department at a lower level considers that a case under its jurisdiction is important or difficult or it has difficulty in imposing punishment, it may report the matter to the environmental protection administrative department at the next higher level for designated jurisdiction. If the environmental protection administrative department at the next higher level believes that the environmental protection administrative department at a lower level have real difficulty in imposing punishment or is incapable of exercising the punishment power independently, it may notify the lower-level environmental protection administrative department and the party concerned of its designation of jurisdiction over the case. The environmental protection administrative department at a higher level may transfer a case under its jurisdiction to the environmental protection administrative department at a lower level with jurisdiction for imposition of administrative punishment. Article 21 [Internal Transfer] A case that does not fall within the jurisdiction of this organ shall be transferred to the environmental protection administrative department that has jurisdiction for handling. If the environmental protection administrative department to which the case is transferred has any objection to the jurisdiction, it may not further transfer the case on its own; instead it shall report it to the common superior environmental protection administrative department for designated jurisdiction. Chapter III General Procedures Section 1 Case Filing Article 22 [Conditions for Filing Cases] An environmental protection administrative department shall conduct a preliminary examination of a suspected violation of any law, regulation or rule on environmental protection and decide within seven working days whether to file the case or not. If the following four conditions are met upon examination, a case shall......