Measures for Environmental Administrative Penalty
Measures for Environmental Administrative Penalty
Measures for Environmental Administrative Penalty
Order of the Ministry of Environmental Protection No.8
January 19, 2010
The Measures for Environmental Administrative Penalty were amended and adopted at the third ministerial meeting of the Ministry of Environmental Protection in 2009 on December 30, 2009. The amended Environmental Administrative Penalty Measures are hereby promulgated for implementation as from March 1, 2010.
The Administrative Penalty Measures for Environmental Protection promulgated by the former State Environmental Protection Administration on August 6, 1999 shall be abolished simultaneously.
Zhou Shengxian, Minister of the Ministry of Environmental Protection
Environmental Administrative Penalty Measures
Contents
Chapter I General Provisions
Chapter II Enforcement Bodies and Jurisdiction
Chapter III Ordinary Proceedings
Section 1 Case Filing
Section 2 Investigation and Evidence Collection
Section 3 Examination of Cases
Section 4 Notification and Hearing
Section 5 Handling Decisions
Chapter IV Summary Proceedings
Chapter V Enforcement
Chapter VI Case Closing and Documentation
Chapter VII Supervision
Chapter VIII Supplementary Provisions
Chapter I General Provisions
Article 1 [Legislative purposes]These Measures are formulated in accordance with the Law of the People's Republic of China on Administrative Penalties and other applicable laws and regulations for the purposes of regulating enforcement of environmental administrative penalties, supervising over and ensuring lawful exercise of powers by environmental protection authorities, maintaining public interest and social order, and protecting the lawful interests of citizens, bodies corporate or other organizations.
Article 2 [Applicable scope]Environmental administrative penalties that ought be meted out against violations of laws, regulations or rules on environmental protection by citizens, bodies corporate or other organizations shall be subject to the procedures stipulated in the Law of the People's Republic of China on Administrative Penalties and these Measures.
Article 3 [Combining penalties with education]In imposing environmental administrative penalties, penalties shall be educational in nature and services shall be provided along with administration, so that citizens, bodies corporate and other organizations can become aware of the importance of observing the law.
Article 4 [Protecting lawful interests]In enforcing environmental administrative penalties, the lawful interests of citizens, bodies corporate and other organizations shall be protected in accordance with the law, and the relevant technical and trade secrets of the parties subject to penalties shall be kept confidential.
Article 5 [Separating investigation from punishment]In enforcing environmental administrative penalties, the rule of having investigation and evidence collection separated from decision making on penalties, and having decision on imposing fines separated from collection of fines shall be observed.
Article 6 [Regulating discretionary power] The discretionary power of administrative penalty must be exercised in the manner consistent with legislative purposes, taken into account:
1. The environmental pollution, extent of ecological damage and social impact caused by the violation;
2. Degree of fault of the violator;
3. The way or means in which the violation is done;
4. What are endangered or infringed by the violation;
5. Whether it is the first time that the violator commits such violation or it has committed any similar violation in the past; and
6. The attitude that the violator shows in remedying its violation, the remedies which have been taken and effects thereof.
The type and severity of administrative penalties against similar violations with the identical or similar circumstances and equivalent social damage shall be consistent.
Article 7 [Exemptions from penalty] Minor violations which are promptly remedied and have not caused any harmful consequences shall be exempted from administrative penalty.
Article 8 [Circumstances to which withdrawal applies]A person designated to handle with the case shall withdraw in the event:
1. That he is a party to the case or an immediate family member of a party to the case;
2. That he or any of his immediate family members has a direct interest in the case; or
3. Of any other circumstances defined by laws, regulations or rules to which withdrawal shall apply.
A person designated to handle with the case who is involved in any circumstances to which withdrawal apply shall withdraw on his own, or a party to the case may apply for his withdrawal.
Article 9 [Rules of application of legal provisions]Where a violation of the same person contravenes the provisions of two or more environmental laws, regulations or rules, the laws, regulations or rules on the higher level shall apply, or in the event of the same level, the provisions which stipulate severer penalty may apply.
Article 10 [Types of penalties] In accordance with laws, regulations and departmental rules, environmental administrative penalties shall include the following types:
1. Disciplinary warning;
2. Fine;
3. Order of suspending production for the purpose of rectification;
4. Order of suspending production or business or of closedown;
5. Temporary suspension or rescission of a permit or any other certificates which are permits in nature;
6. Confiscation of illegal gains or any other unlawful properties;
7. Administrative detention; and
8. Other types of administrative penalties as prescribed by laws and regulations.
Article 11 [Order for remediation and identification of continual violations] When enforcing administrative penalty, an environmental protection authority shall timely make the administrative order of demanding remediation or demanding remediation of unlawful behavior within prescribed period.
Where the unlawful behavior is ongoing or continues after expiration of the prescribed period of remediation due to failure of the violator to remedy as required, the ongoing or continual unlawful behavior may be identified as a new environmental violation.
Article 12 [The forms of orders for remediation] In accordance with the laws, regulations and departmental rules on environmental protection, administrative orders which demand remediation of unlawful behaviors or demand remediation within prescribed periods shall include:
1. Order of stopping construction;
2. Order of stopping trial production;
3. Order of stopping production or use;
4. Order of constructing supporting facilities within a prescribed period;
5. Order of completing installation again for use;
6. Order of removal within a prescribed period;
7. Order of stopping unlawful behavior;
8. Order of rectification within a prescribed period; and
9. Any other forms of administrative orders prescribed by laws, regulations and rules which demand remediation of unlawful behaviors or demand remediation within prescribed periods.
Pursuant to the stipulations of the Supreme People's Court on categories of administrative conducts and on regulating causes of action of administrative cases, administrative orders are not considered administrative penalties. Administrative orders therefore are not subject to stipulations regarding administrative punishment procedures.
Article 13 [The obligation of sewage tariff payment not relieved by virtue of penalty] Enforcement of environmental administrative penalties does not relieve the violators of the obligation to pay sewage tariff in accordance with the law.
Chapter II Enforcement Bodies and Jurisdiction
Article 14 [Enforcement bodies] Environmental protection authorities at or above the county level shall enforce environmental administrative penalties according to their statutory scope of functions and powers.
Enforcement of environmental administrative penalties by environmental supervision agencies authorized under laws, administrative regulations and local regulations according to their authorized powers shall be governed by the provisions of these Measures on environmental protection authorities.
Article 15 [Delegating penalty enforcement] To the extent consistent with its statutory scope of functions and powers, an environmental protection authority may delegate enforcement of administrative penalties to an environmental supervision agency. The environmental supervision agency which is assigned shall, subject to the scope of delegation, enforce administrative penalties in the name of the environmental protection authority which makes the delegation.
The environmental protection authority which makes the delegation shall be responsible to supervise over the acts of administrative penalty enforcement by the environmental supervision agency assigned thereby, and shall bear the legal responsibilities arising from such acts.
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