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LEGAL: Latest Changes in Chinese Environmental Laws (Part I)
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Latest Changes in Chinese Environmental Laws

PART 1

By Manuel Torres (Managing Partner of Garrigues China) & Rachel Zhou (Corporate Associate)


在最近四年时间里,我国有关部门对三项环境法进行了修改,一方面这表明了中国政府对环境保护的决心,另一方面也提醒我们,企业需要注意这些法律修改对公司业务的影响。


修订后的环境法赋予当地城镇制定更严格的地方标准保护环境的权利。其次强调企业在没有环境影响评估的情况下无权施工。在行政调查方面,修订后的环境法规定县级以上政府主管部门及其委托环境监察机构等对现场进行检查,机构及其人员应对被检查机构的商业机密保密。对于违反法律法规、排放污染物的企事业单位经营者,造成或可能造成严重污染的,由县级以上人民政府环保部门封堵污染物排放设备,且企业有责任配合调查。另据修订后的法律法规规定,使用污染防治设施不需要政府机关审查批准,建设项目污染防治设施应该与项目主体一样符合环境影响评估规定的要求,未经授权不得拆卸或闲置。医疗垃圾与光辐射也被列入污染物中,另外企业如有污染物排放,需要按照声明申请排污许可证。修订后的环境法还就处罚类型与情况进行了调整,在此我们建议企业经营者了解环境法修订部分,安全合法经营,防患于未然。

BT 201706 LEGAL 01
In the latest four years, three environmental laws have been experiencing great changes which indicate the ambitions of Chinese government to strengthen the protection of the environment by way of pre-control. We believe it is important for any enterprise that would like to develop business in Chinese domestic market to pay attention to those changes as the influence on its daily running is unavoidable.


1. Revision of Environmental Protection Law


The Environmental Protection Law is a concentrated management law formulated by the National People's Congress of China and this law was revised in 2014, becoming effective on January 1st, 2015. Among the revised numbers , the following perspectives are worthwhile to notice considering as they would have direct influences towards enterprises.


BT 201706 LEGAL 03A. Authorizing the local government to formulate more stringent standards


The updated clause 15 entitles local cities or regions to formulate stricter local standards to protect environment.


B. The environmental impact assessment


It stresses that the enterprise cannot start construction without environmental impact assessment; otherwise, it may be punished by competent authorities and the updated provision specified the types of administrative penalty with regard to the activity that fails to submit the environmental impact assessment document or start construction without approval ("The construction entity that fails to submit the environmental impact assessment documents of construction projects in accordance with the law or whose environmental impact assessment documents are not approved starts construction without authorization, the departments responsible for supervision and management on environmental protection shall order it to suspend the construction and impose fines and may order it to make recovery") .


It also clarifies that any fine or any other unlawful properties imposed for violation of any enterprise which is subsequently split up, merges or has its assets restructured shall be executed on the legal person or organization that succeeds to the rights and obligations of that enterprise.


hl legalC. Specified methods of administrative investigation


The new provision specified the methods of administrative investigation as follows:


"The competent departments of environmental protection of governments at the county level or above and their entrusted environmental monitoring agencies as well as other departments responsible for supervision and management on environmental protection have the right to conduct onsite inspections of enterprises and institutions and other producers and operators that discharge pollutants."; The departments, agencies and their personnel that conduct onsite inspection shall maintain the confidentiality of trade secrets of entities under inspection.


For enterprises and institutions and other producers and operators that discharge pollutants in violation of provisions of laws and regulation and cause or may cause serious pollution, competent departments of environmental protection of the people's governments at the county level or above or other departments responsible for supervision and management on environmental protection may seal up and detain facilities and equipment causing discharge of pollutants.


In addition, it clarifies that the enterprise is liable to cooperate with the investigation and shall truthfully report the relevant circumstances and provide the necessary information".

BT 201706 LEGAL 02
D. Cancelling the government approval of use of pollution prevention and control facilities


According to the updated article, the use of pollution prevention and control facilities is no longer subject to inspection and approval of governmental authority. While the pollution prevention and control facilities in construction projects shall be designed, built and commissioned along with the principal part of the project at the same time and those facilities shall meet the requirements specified in the approved documents regarding the environmental impact assessment and shall not be dismantled or left idle without authorization.


E. Specified control system towards different pollutants


It is noticed that Medical wastes and optical radiation generated in course of manufacturing have been added as pollutants and the Chinese government will implement a national control system for total emissions of key pollutants. If the local cities or regions discharge pollutants in excess of quota as designated by national government, competent departments of such cities or regions shall suspend the approval for construction projects of newly increased total emissions, which means the investment of construction projects may be restricted by national control system in future.


F. The pollution discharge license management system


The state implements pollution discharge license management system and the enterprise shall apply for pollution discharge license if they meet the following statement:


(1) pollutant discharge units that discharge industrial waste gas and atmospheric pollutants;


(2) coal-fired heating enterprises that engage in concentrated heating;


(3) pollutant discharge units that discharge industrial and medical wastewater directly or indirectly;


(4) pollutant discharge units that operate centralized wastewater treatment facilities; and


(5) pollutant discharge units that shall acquire pollutant discharge licenses according to law


The competent authority shall not charge any fees for the issuance of said license and the initial effective term of said license is 3 years and the extended effective term after renewal is 5 years.

BT 201706 LEGAL 04
G. The updated administrative penalties


The revised law updates administrative penalty towards different situations and specifies the types of administrative penalty with regard to various activities:


(1) Where the enterprises and institutions and other producers and operators that illegally discharge pollutants and are thus fined are ordered to make corrections but if they refuse to do so, the administrative organ that made the penalty decisions may, as of the following date after the order of making corrections, impose continuous punishment by day based on the original fines. The maximum amount of administrative fine according to relevant law is 50,000 RMB; however, the law also authorized local provinces to determine the amount higher that 50,000 RMB based on actual situation;


(2) Where the enterprises and institutions and other producers and operators that discharge pollutants in excess of the pollutant discharge standards or discharge pollutants in excess of control indicators of total emissions of key pollutants, the competent departments of environmental protection of the people's governments at the county level or above may order them to take such measures as restricting production and suspending production for renovation; if the circumstance is serious, report shall be made to the people's government with approval authority for approval and the relevant entity shall be ordered to suspend production and will be shut down;


(3) The construction entity that fails to submit environmental impact assessment documents of construction projects in accordance with the law or whose environmental impact assessment documents are not approved starts construction without authorization, the departments responsible for supervision and management on environmental protection shall order it to suspend the construction and impose fines and may order it to make recovery;


(4) Where the key pollution discharge entity does not disclose or untruthfully disclose environmental information in violation of the law, the competent departments of environmental protection of the people's governments at the county level or above shall order it to disclose such information, impose fines and make an announcement.


H. The physical detention of the in-charge person


This updated law specifies the situations that lead to physical detention, which is not criminal detention under this law, of the in-charge person and other persons directly responsible as follows:


Where enterprises, public institutions and other producers and operators have any of the following acts which do not constitute a crime yet, besides the penalty in accordance with provisions of the relevant laws and regulations, the competent departments of environmental protection of the people's governments at the county level or above and other departments responsible for supervision and management on environmental protection shall transfer the case to the public security organ and impose a detention for not less than ten days and not more than 15 days on the persons directly in charge and other persons directly responsible; if the circumstance is quite minor, a detention for not less than five days and not more than ten days shall be imposed:


(1) construction projects with environmental impact assessment not made in accordance with the law are ordered to be suspended but the enterprises, public institutions and other producers and operators refuse to do so;


(2) the enterprises, public institutions and other producers and operators that discharge pollutants in violation of the law and without obtaining the pollutant discharge license are ordered to suspend discharging pollutants and they refuse to do so;


(3) the enterprises, public institutions and other producers and operators illegally discharge pollutants by means of concealed conduits, seepage well, seepage pit, perfusion or alteration and forgery of monitoring data or abnormal operation of pollution prevention and control facilities to avoid supervision; and


(4) the enterprises, public institutions and other producers and operators that produce and use the pesticide forbidden to be produced and used are ordered to make corrections but they refuse to do so


Furthermore, it specifies that the damage caused by environmental pollution will trigger tortuous liability.


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