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The Notice of Guangzhou Municipal Ecological Environment Bureau on Printing and Distributing the Regulations of Guangzhou Municipality on Standardizing Administrative Penalty Discretion over Ecological Environment

 

Sui Huan Gui Zi [2021] No. 2


All sections (offices/teams) and sub-bureaus of this bureau, monitoring centers and stations in Guangzhou and all directly affiliated units:

  In order to implement the administrative law enforcement responsibility system, further standardize the exercise of administrative penalty discretion over ecological environment, and ensure legal and rational administrative penalties, according to theLaw of the People’s Republic of China on Administrative Penalty, the Law of the People’s Republic of China on Environmental Protection, the Regulations of Guangdong Province on Standardizing Administrative Penalty Discretion and the Regulations of Guangzhou Municipality on Standardizing Administrative Law Enforcement Discretion, and based on the actual situation of law enforcement for ecological environment in Guangzhou, this bureau formulates the Regulations of Guangzhou Municipality on Standardizing Administrative Penalty Discretion over Ecological Environment. As it has been examined and approved of by Guangzhou Municipal Justice Bureau, it is hereby printed and distributed. Please comply to and implement it.

  TheNotice of Guangzhou Municipal Environmental Protection Bureau on Re-Printing and Distributing the Regulations on Standardizing Administrative Penalty Discretion over Ecological Environment in Guangzhou (Sui Huan Gui Zi [2018] No. 5) issued on December 26, 2018 should be annulled at the same time. If there is any problems during implementation, please report to this bureau directly.

 

 Guangzhou Municipal Ecological Environment Bureau

  February 7, 2021

 

  Regulations of Guangzhou Municipality on Standardizing Administrative Penalty Discretion over Ecological Environment

  Article1 In order to implement the administrative law enforcement responsibility system, standardize administrative law enforcement, and ensure legal and rational administrative penalties, according to the Law of the People’s Republic of China on Administrative Penalty, the Law of the People’s Republic of China on Environmental Protection, the Regulations of Guangdong Province on Standardizing Administrative Penalty Discretion and the Regulations of Guangzhou Municipality on Standardizing Administrative Law Enforcement Discretion, and based on the actual situation of law enforcement for ecological environment in Guangzhou, this Regulations is formulated.

  Article 2 This Regulations is to standardize and supervise the administrative penalty discretion of Guangzhou’s law enforcement agencies for ecological environment.

  Article 3 Administrative penalty discretionover ecological environment mentioned in this Regulations refers to the authority of law enforcement agencies to decide whether to impose administrative penalty, what kind of administrative penalty and what range of administrative penalty for citizens, legal persons or other organizations (hereinafter referred to as offenders) that have violated the order of ecological environment administration within the scope of administrative penalty powers and functions prescribed by laws, regulations and rules.

  Article 4 The exercise of administrative penalty discretion over ecological environment must base on the purpose of benefiting ecological environment and follow the principles of legality, reasonableness, fairness, justice, equal responsibility and penalty, and balance of penalty and education.

  Article 5 The application of laws, regulations and rules should follow the principle of prioritizing superior laws, special laws and new laws.

  For ecological environment violations committed before the implementation of new laws and administrative penalties imposed after the implementation of new laws, substantial issues should be subject to old laws, and procedural issues should be subject to new laws, except in the following cases:

  5.1Laws, regulations or regulations provide other provisions;

  5.2Ecological environment departments under the State Council provide other regulations or interpretations;

  5.3The application of new laws is more beneficial to legal rights and interests of administrative counterparts.

  Article 6 Where penalties prescribed by laws, regulations and rules can be imposed singly or concurrently, they may be applied selectively. Where they should be applied concurrently as stipulated, they can’t be applied selectively.

  In order to urge offenders to correct their ecological environment violations in a timely manner, prevent the expansion of pollution or start the procedure of continuous penalty on a daily basis in accordance with the law, case investigators should order offenders to correct their violations immediately or within a time limit if there is evidence to prove their violations during the investigation stage. If no corrections is ordered during the investigation stage of the case, offenders should be ordered to correct their violations immediately or within a time limit when administrative penalties are imposed.

  Article 7 When investigating, examining and collecting evidence, case investigators should record the law enforcement process through written, electronic, audio-visual and other recording methods.

  Before enforcing an administrative penalty, case investigators should collect evidence of violations and circumstances that can support discretionary criteria (1 or more facts or circumstances set out in discretion criteria may be determined according to the facts of a specific case), and ecological environment authorities can take the evidence as the basis to exercise administrative penalty discretion.

  If it is indeed difficult to collect or determine evidence materials or facts stipulated in discretion criteria and related to discretion circumstances or criteria of violations due to objective reasons (including force majeure; lost, destroyed or damaged evidence materials; offenders or third parties refusing to cooperate with the investigation or provide relevant materials; offenders or perpetrators who can’t be contacted), agencies imposing administrative penalties should, based on the evidence collected and the facts determined about violations, comprehensively consider the fact, nature, plot and social harm of violations before imposing administrative penalties.

  Before imposing an administrative penalty, case investigators should require offenders to provide or confirm the address for service and fill in the confirmation letter of address for service of the administrative penalty. If they refuse to provide the address, case investigators should inform them of adverse consequences if they refuse to provide the address and record it in law enforcement records.

  Article 8 If there are multiple ecological environment violations committed by offenders at the same time, which are confirmed to be related to each other, but constitute environment violations independently, corresponding penalties should be given to each violation according to the law.

  If a construction project starts before government approval or violates the “at the same time” system (pollution prevention and control facilities must be designed, constructed and put into operation at the same time as the main part of the project when a company or institution is building, rebuilding or expanding a project) and discharges pollutants beyond pollutant discharge standards, or discharges pollutants through hidden pipes, seepage wells, seepage pits or perfusion, or tampered or falsified monitoring data, or abnormal operation of pollution prevention and control facilities to evade supervision after it is put into production or use, which constitute an independent violation respectively, corresponding violations should be punished according to the law.

  For 2 or more violations committed by the same offender, written notices or decisions on administrative penalty may be made separately or included in 1 written notice or decision on administrative penalty. If they are included in the same notice or decision on administrative penalty, corresponding facts, application of laws, and penalty types and ranges to each violation should be illustrated.

  Article 9 When an administrative penalty is imposed, it is necessary to comprehensively analyze the facts, nature, circumstances and social harm of ecological environment violations, judge the type, extent and time limit of violations, and take the following circumstances into consideration:

  9.1Environmental impact assessment result of the construction project;

  9.2Duration of violations;

  9.3Specific manifestation of violations;

  9.4Specific objects harmed by violations;

  9.5Subjective fault of offenders;

  9.6Attitude of offenders to admit wrongdoings and penalties;

  9.7Whether offenders are first-time offenders or repeated offenders;

  9.8Environmental credit status of offenders;

  9.9Financial situation of offenders;

  9.10Attitude to correct violations and whether corrective measures have been taken and their effects (environmental impacts have been eliminated or cannot be completely eliminated; environmental impacts do not expanded or continue to deteriorate);

  9.11Environmental pollution, ecological damage and social impact caused by violations.

  As of this, environmental pollution, ecological damage and social impact caused by violations in Paragraph (9.11) of this article can be determined from the following aspects:

  9.11.1Whether the project site conforms to environmental function planning, whether it is located in ecological protection red line, nature reserve, drinking water source protection area, scenic spot, forest park, important wetland, basic farmland protection area, cultural relics protection unit and other environmentally sensitive area or nearby area particularly sensitive to the environmental impact of the project;

  9.11.2Whether the violation causes environmental pollution across administrative regions (above the district level);

  9.11.3Type, discharge amount or discharge duration of pollutants;

  9.11.4Discharge region or destination of pollutants (if water pollutants are discharged, the destination water body can be determined by the category of surface water environment function zone to which the water body belongs);

  9.11.5Whether the violation causes soil, vegetation, water, landscape and other environmental pollution or ecological damage;

  9.11.6Whether the violation causes bad social response or public opinion;

  9.11.7 Whether the violation causes an effective report or complaint;

  9.11.8 Other factors causing environmental pollution, ecological damage or social impact.

  Article 10 If the offender is involved in any of the following circumstances, he/she/it should be given a heavier punishment, except as otherwise provided for by laws and regulations or independent violations:

  10.1Take violent or coercive acts against law enforcement officers during the investigation and the handling of the case, such as threat (including verbal threat), abuse, assault, intimidation or retaliation, or otherwise obstruct, interfere with or refuse to cooperate with field inspection, monitoring or investigation and evidence collection (including raising unreasonable requirements and other ways);

  10.2Illegally discharge or dump hazardous wastes, pollutants containing heavy metals and other toxic or harmful substances into the environment;

  10.3Illegally discharge pollutants for more than 20 days continuously or cumulatively, and commit other violations for more than 3 months continuously or cumulatively;

  10.4Refuse to make corrections or make corrections within a time limit or continue to violate the law after being ordered to make corrections or make corrections within a time limit;

  10.5Cause environmental pollution across administrative regions (above the district level);

  10.6Pollute the atmospheric environment during heavy pollution weather warning or special or major activities;

  10.7Transfer, conceal, use, damage or sell off facilities or equipment that are sealed up or seized according to the law or tear up seals without authorization;

  10.8Commit a violation which causes an environmental emergency or has a major impact on any environmentally sensitive area such as ecological protection red line, nature reserve, drinking water source protection area, scenic spot, forest park, important wetland, basic farmland protection area, cultural relics protection unit, etc.

  10.9Receive effective reports and complaints which have been verified more than 3 times in the past 2 years, or cause mass incidents, or cause bad impacts on the society and public opinion;

  10.10Have been punished more than 3 times for similar environmental violations in the past 2 years;

  10.11Illegally discharge wastes, maliciously discharge sewage, falsify monitoring data, or discharge medical wastes and wastewater with COVID-19 risk during the critical period of epidemic control and prevention, which infringes on people’s health and causes strong public response or serious environmental pollution;

  10.12Be involved in other circumstances that should be given a heavier punishment as prescribed by laws, regulations and rules on ecological environment.

  The term “heavier punishment” mentioned in thisRegulations refers to a punishment at a higher level of discretion or a punishment at a higher limit of a certain level of discretion within the range of legal punishment, subject to the maximum amount of punishment prescribed by the law.

  Article 11 If the offender is involved in any of the circumstances prescribed in Article 27(1) of the Law of the People’s Republic of China on Administrative Penalties, he/she/it should be given a lighter or mitigated punishment according to the law.

  If the offender is involved in any of the following circumstances, he/she/it should be given a lighter or mitigated punishment:

  11.1The offender is a first-time offender, has little subjective malice, and causes minor environmental pollution and minor ecological damage or has not caused harmful consequences;

  11.2The offender actively corrects or suspends his/her/its violation in time;

  11.3The offender actively cooperates with the investigation of the case and actively confesses all illegal facts;

  11.4The construction project is a public welfare project such as school, hospital, municipal road, bridge or other infrastructure that has passed environmental impact assessment and has taken environmental protection measures or has been connected to the municipal pipe network;

  11.5The offender has timely and fully bought environmental pollution liability insurance;

  11.6The offender gets a green card in the latest corporate environmental credit assessment;

  11.7The violation occurs during the critical period of major epidemic control and prevention, and the production and operation involve research, development, production or provision of technologies, products or services for epidemic prevention and control;

  11.8The violation occurs during the critical period of major epidemic control and prevention, and the offender actively participates in or makes great contributions to major epidemic prevention and control work;

  11.9The offender actively participates in the negotiation on compensations for ecological environment damage and actively fulfills his/her/its obligation to compensate for and restore the ecological environment;

  11.10The offender is involved in other circumstances that may result in a lighter punishment as prescribed by laws, regulations and rules on ecological environment.

  The term “lighter punishment” mentioned in thisRegulations refers to a punishment at a lower level of discretion or a punishment at a lower limit of a certain level of discretion within the range of legal punishment, subject to the minimum amount of punishment prescribed by the law.

  Article 12 No administrative penalty should be imposed for minor ecological environment violations that are promptly corrected and do not result in harmful consequences.

  If the offender is involved in any of the following circumstances, there is no other ecological environment violations at the same time, and no harmful consequences are caused, no administrative penalty should be imposed:

  12.1The construction unit has finished the construction of the project without going through the registration procedure of environmental impact registration form according to the law and has put it into production and operation for no more than 6 months, or for more than 6 months but supporting facilities for environmental protection have also been installed or environmental protection measures have been taken. Besides, the project does not cause environmental pollution, ecological damage, social impact, or other harmful consequences. After investigation or inspection, the unit finishes the registration procedure within 3 working days as required, or stop its production or the construction project in time;

  12.2The construction unit starts the project without submitting an environmental impact report or passing the examination of the report, but the project does not cause environmental pollution, ecological damage, social impact, or other harmful consequences. After investigation or inspection, the unit actively stops its construction within 15 days;

  12.3 The construction project has been put into operation without passing the government examination (excluding that located in environmentally sensitive area or for chemical, electroplating, leather, paper, pulp, smelting, radioactive, printing and dyeing, dye, coking and oil refining projects) for no more than 3 months, or for more than 3 months but supporting facilities for environmental protection have also been installed or environmental protection measures have been taken. Besides, the project does not cause environmental pollution, ecological damage, social impact, or other harmful consequences. After being ordered to make corrects or make corrections within a time limit, the construction unit immediately stops its production by itself, launches the acceptance work at the same time, and fulfills its corrections within 12 months (including demolishing some production facilities and other measures to make the remained production technology and content of the construction project meet the requirement of exemption from environmental assessment procedure and the acceptance of completion environment protection), or directly closes the construction project by itself;

  12.4The unit discharges water pollutants beyond standards and its exceed multiple of single factor of conventional pollutants ≤0.1 times (conventional pollutant factors are subject to all monitoring items specified in HJ/T91-2002 Table 6-1 Surface Water Testing Items) or 5≤pH<6 or 9<pH≤10, but this situation lasts for no more than 2 hours (this provision should not apply if the discharge time is more than 2 hours according to available factual materials; If there is no factual evidence to show that the discharge time exceeds 2 hours, this provision may apply), or the unit discharges sewage <0.1 tons on a daily basis, or makes noises 1 decibel beyond standards. Besides, the unit fulfills its corrections within 3 working days;

  12.5Pollution prevention and control facilities do not operate normally due to sudden failure or other non-intentional factors. The unit timely reports this situation within 24 hours and suspends production, limits production or takes other measures to reduce pollutant emissions. Besides, the daily average does not exceed standards;

  12.6The unit has formulated an emergency plan for environmental emergencies (accidents) in accordance with regulations, but it fails to register the emergency plan as required or fails to hold emergency training or truthfully record the training as required. Besides, after investigation or inspection, it fulfills its corrections within 3 working days;

  12.7The unit fails to fully mark or properly set containers and packages of hazardous wastes or facilities and sites for the collection, storage, transportation, utilization and treatment of hazardous wastes, but this situation is found for the first time and the unit immediately makes corrections afterwards. Besides, no environmental pollution, ecological damage, social impact, or other harmful consequences have been caused. After investigation or inspection, it fulfills its corrections within 3 working days;

  12.8The unit fails to seal up materials easy to produce dust or fails to take effective measures to prevent and control dust pollution, but this situation is found for the first time and these materials are stacked within 50 square meters. Besides, no environmental pollution, ecological damage, social impact, or other harmful consequences have been caused. After investigation or inspection, it fulfills its corrections within 3 working days;

  12.9The unit fails to prevent dust pollution by sealing up materials or spraying water on the ground when loading and unloading materials in accordance with regulations, but this situation is found for the first time and there is no obvious environmental pollution. Besides, after investigation or inspection, it fulfills its corrections within 3 working days;

  12.10The unit fails to disclose environmental information in accordance with the prescribed time limit or contents (excluding falsifying disclosed contents and the illegal disclosure of key units discharging pollutants), but this situation is found for the first time and, after investigation or inspection, it fulfills its corrections within 3 working days;

  12.11The unit has designed a self-monitoring plan and organized a self-monitoring campaign, but it fails to keep original monitoring records (excluding relevant violations of key units discharging pollutants, relevant violations of units discharging toxic and harmful air pollutants, and relevant violations of units discharging waste water containing class-A pollutants or heavy metals, pathogens, waste water containing radioactive substances, waste water containing other toxic and harmful substances, and medical waste water). After investigation or inspection, it immediately makes corrections and fulfills its corrections within 3 working days;

  12.12The unit fails to design a hazardous waste management plan or declare relevant information about hazardous wastes in accordance with relevant state regulations. It produces less than 10 tons of hazardous wastes every month. After investigation or inspection, it immediately makes corrections and fulfills its corrections within 3 working days;

  12.13The unit fails to establish and keep hazardous waste management records in accordance with relevant regulations. It produces less than 10 tons of hazardous wastes every month. After investigation or inspection, it immediately makes corrections and fulfills its corrections within 3 working days;

  12.14The unit is involved in other minor violations and makes corrections in a timely manner. No environmental pollution, ecological damage, social impact, or other harmful consequences have been caused.

  If, after inspection or investigation, case investigators fail to find that the offender should not be punished, but the offender contends that he/she/it should not be punished, the offender should provide corresponding evidence materials to prove this, especially factual materials to prove that the offender corrects his/her/its violation in time and fulfills his/her/its corrections on schedule.

  Those who cause environmental pollution due to force majeure and take reasonable measures in time should be exempted from administrative penalties.

  No administrative penalty should be imposed on any ecological environment violations that is not discovered within 2 years, except as otherwise provided for by laws and regulations.

  The time limit prescribed in the preceding paragraph should be counted from the date when the violation is committed. Where a violation is continuously or constantly committed, the time limit should be counted from the date on which the violation ends.

  Article 13 If there are no circumstances qualified for a heavier, lighter, mitigated or exempted punishment for the ecological environment violation committed by the offender, a moderate punishment should be given. If any circumstances qualified for a heavier, lighter or mitigated punishment is also involved in the violation, a corresponding punishment should be given after the comprehensive consideration of the circumstances qualified for a heavier, lighter or mitigated punishment.

  Article 14 In the case of same or similar factors such as facts, nature, circumstances and social harm in ecological environment violations, applicable legal basis should be the same, and the type and range of punishment should be basically the same with reference to the results of the same type of cases.

  Article 15 Guangzhou Municipal Ecological Environment Bureau should establish a collective deliberation system for ecological environment administrative penalties, and establish a collective deliberation body for administrative penalties to study and examine major and complex cases (specific measures will be formulated separately).

  Article 16 If any of the following circumstances occur during the trial of an ecological environment violation case, a consultation or countersignature and proposals should be submitted:

  16.1The fact of violation does not exist and the case will be canceled;

  16.2There are big differences between the facts of violation to be ascertained and the circumstances found by case investigators;

  16.3The decision on administrative penalty to be made differs greatly from that suggested by case investigators;

  16.4The unit is involved in a minor violation. It makes corrections in a timely manner and no harmful consequences has been caused. It is suggested not imposing an administrative penalty;

  16.5The case involves professional and technical issues and relevant authorities need to sign their names, issue technical opinions or entrust experts to make expert demonstration;

  16.6Other major and complicated cases requiring consultation or countersignature.

  The trial results of major and complex cases should be made in the light of relevant consulted or countersigned opinions. If supplementary evidence is needed, case investigators should be promptly referred to carry out supplementary investigation.

  Relevant consulted or countersigned opinions should be filed together with case files and kept for future reference.

  Article 17 Where a violation gets an administrative penalty according to Article 63 of the Law of the People’s Republic of China on Environmental Protection but still needs to be transferred to the public security organ for administrative detention, the case should be transferred to the public security organ for processing without delay.

  Article 18 Where an ecological environment violation is suspected of a crime, it should be promptly transferred to the public security organ according to the law and reported to the procuratorial organ at the same level. No administrative penalty should replace criminal punishment.

  The execution of decisions on administrative penalty such as warning, order to suspend production or business operation, or suspension or revocation of license should not be suspended when a case of environmental crime is transferred to a public security organ. If ecological environment authorities have not imposed an administrative penalty before transferring the suspected criminal case to the public security organ, they should, in principle, handle the case according to the law after the public security organ decides not to file the case or cancels the case, the people’s procuratorate decides not to initiate a prosecution, and the people’s court makes a judgment. Where an administrative penalty should be imposed in accordance with relevant laws, regulations or rules, the administrative penalty should be imposed in accordance with the law. The period of transferring and handling the suspected criminal case should not be included into the time limit of administrative penalty. In order to protect public interest, ecological environment authorities may, when transferring a case or after transferring a case, impose an administrative penalty such as ordering to suspend production or business operation, temporarily suspending or revoking the license, and sending a copy of the written decision on administrative penalty to the public security organ accepting the case.

  Article 19 The Regulations of Guangzhou Municipality on Administrative Penalty Discretion over Ecological Environment is the attachment of this Regulations, and is the specific standard for law enforcement agencies to exercise their administrative punishment discretion. If the violation of the offender involves discretionary circumstances of different grades as prescribed in the attachment, the offender should be punished according to the discretionary circumstances of higher grades.

  If an ecological environment violation has not been included in the items listed in the attachment, thisRegulations should apply.

  The term “the lasttwo years” in this Regulations refers to two natural years retroactive from the date on which the violation occurs.

  “More than” and “less than” in discretionary circumstances, discretionary standards or measures in thisRegulations should include basic numbers.

  Article 20 During the execution of an administrative penalty, if a mistake is discovered, corrective measures should be taken, such as rectification, cancellation or remaking a decision.

  Article 21 This Regulations should come into force as of the date of printing and distributing and be valid for five years.

  Attachment:Regulations of Guangzhou Municipality on Administrative Penalty Discretion over Ecological Environment 

  Disclosure: Active Disclosure

  Attachment

  Regulations of Guangzhou Municipality on Administrative Penalty Discretion over Ecological Environment

  1. Violation of Environmental Impact Assessment Management System for Construction Projects

  2. Violation of the Environmental Protection “At the Same Time” System for Construction Projects

  3. Violation of the Environmental Protection Permit Management System

  4. Violation of the Environmental Protection Field Inspection System

  5. Abnormal Use of Environmental Protection Facilities to Avoid Supervision

  6. Discharge of Pollutants beyond Standards and Total Amount Standards

  7. Violation of the Pollutant Discharge Declaration and Registration System

  8. Violation of the Sewage Outlet Management System

  9. Violation of the Automatic Monitoring and Management System

  10. Violation of the Emergency Management System for Environmental Emergencies

  11. Other Violations of the Prevention and Control System for Atmospheric Pollution

  12. Other Violations of the Prevention and Control System for Water Pollution

  13. Other Violations of the Prevention and Control System for Soil Pollution

  14. Other Violations of the Prevention and Control System for Marine Pollution

  15. Other Violations of the Prevention and Control System for Solid Waste Pollution

  16. Other Violations of the Prevention and Control System for Environmental Noise Pollution

  17. Other Violations of the Prevention and Control System for Radioactive Pollution

  18. Violation of the Clean Production Management System

  19. Others


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