A company sued the Ecological Environment Bureau of Wenchang City, Hainan Province, and the People's Government of Wenchang City, Hainan Province, for administrative punishment and administrative reconsideration
-- Administrative organs shall be prudent and benevolent in carrying out administrative punishments
keyword
Administrative Penalties Administrative Reconsideration Excessive Penalties Considerable Trust Protection
Basic facts of the case
After trial, the court ascertained that a sewage treatment plant in Wenchang, built and operated by a company, was located in the Qingqun Village Committee of Wencheng Town, Wenchang City, Hainan Province, which began construction in 2012, was completed in 2014, and was put into use on January 1, 2017. On March 5, 2012, the Wenchang Municipal Water Affairs Bureau signed the "Supplementary Contract for the Franchise (BOT) of a Sewage Treatment Plant Project in Wenchang, Wenchang City" (hereinafter referred to as the "BOT Contract") with a company. On April 24, 2017, the Wenchang Municipal Government made Wenfu Han [2017] No. 350 "Reply on the Franchise Period of a Sewage Treatment Plant in Wenchang" (hereinafter referred to as No. 350 "Reply"), agreeing that the Wenchang Municipal Water Affairs Bureau shall implement the BOT contract in accordance with the implementation of the "BOT Contract", and a sewage treatment plant in Wenchang will be put into trial operation for 3 months from January 1, 2017. If the monitoring is qualified, you can apply to the Wenchang Municipal Environment Bureau for environmental protection acceptance. After passing the environmental protection acceptance, it can be declared for formal operation. On November 23, 2017, a company in Haikou issued the "Instructions on the Environmental Protection Acceptance of the Completion of a Sewage Treatment Plant Project in Wenchang City" (hereinafter referred to as the "Disagree Acceptance Statement") to the Wenchang Water Affairs Bureau, stating that the production load of a sewage treatment plant in Wenchang did not reach more than 75% of the design capacity, and the Wenchang Environmental Bureau did not agree to the environmental protection acceptance of the project.
On July 11, 2018, the Wenchang Municipal Environment Bureau conducted an on-site inspection of a sewage treatment plant in Wenchang and found that the environmental protection facilities that needed to be built by the plant were put into use without acceptance. On July 23, 2018, the Hainan Provincial Environmental Monitoring Center Station investigated and monitored the treatment effect of a sewage treatment plant in Wenchang. On August 24, 2018, the Wenchang Municipal Environment Bureau made the "Report on the Investigation and Monitoring of the Sewage Treatment Effect of a Sewage Treatment Plant in Wenchang, Our City" (hereinafter referred to as the "Wenchang Environmental Bureau Report"), and the conclusion is: the sewage treatment volume is far from reaching the design treatment water load; The concentration of sewage influent is far from meeting the design requirements; The pollutant treatment efficiency does not meet the design requirements for a long time; The sewage of a sewage treatment plant in Wenchang has met the requirements of the discharge standard after treatment. The report suggests that the construction unit should accept and organize the implementation of the project on its own according to the requirements of relevant documents; Speed up the renovation and construction of the sewage collection pipe network in Qinglan area to solve the problem of "two lows".
On August 20, 2018, the Wenchang Municipal Environment Bureau issued the "Decision on Ordering the Correction of Illegal Acts" (hereinafter referred to as the "No. 38 Correction Decision") [2018] No. 38, arguing that a sewage treatment plant in Wenchang found that the environmental protection facilities built by the supporting facilities had not been accepted and had been put into use without acceptance, in violation of Article 19 of the Regulations on the Management of Environmental Protection of Construction Projects. In accordance with Article 23 of the Regulations on the Administration of Environmental Protection of Construction Projects, a company was ordered to go through environmental protection acceptance procedures before November 30, 2018; If the environmental protection acceptance procedures are not completed within the specified time, they will be dealt with in accordance with laws and regulations. On November 17, 2018, the Wenchang Municipal Environment Bureau issued the "Administrative Penalty Decision" [2018] No. 29, fining a company 300,000 yuan. A company paid the fine.
On December 20, 2018, a company requested the Wenchang Water Affairs Bureau to take the lead in completing the environmental completion and acceptance of a sewage treatment plant in Wenchang. On January 3, 2019, the Wenchang Municipal Water Affairs Bureau issued the "Reply on the Environmental Completion and Acceptance of a Sewage Treatment Plant Project in Wenchang, Wenchang City", agreeing that a company should entrust a qualified institution to carry out the environmental completion acceptance in accordance with relevant regulations. On January 14, 2019, a company signed the "Entrustment Agreement for Environmental Protection Acceptance of Construction Project Completion" with a company in Hainan, entrusting it to carry out environmental protection acceptance and monitoring of a sewage treatment plant project in Wenchang.
On March 29, 2019, the Wenchang Municipal Environment Bureau inspected a sewage treatment plant in Wenchang again, believing that the company had not gone through the environmental protection acceptance procedures and continued to produce and operate, and filed a case for disposal on April 10, 2019. On April 12, 2019, the Wenchang Municipal Environment Bureau believed that the facts of a company's violation were clear and planned to fine a company 1,222,100 yuan. On April 15, 2019, the Wenchang Municipal Environment Bureau issued the Wenhuan Zhi Gai Zi [2019] No. 16 "Decision to Order the Correction of Illegal Acts", arguing that a company had failed to correct environmental violations within the time limit, nor had it submitted a report on the failure to correct environmental violations within the time limit, and ordered a company to immediately correct the illegal acts. On the same day, the Wenchang Municipal Environment Bureau issued the Wenhuan Penalty Notice [2019] No. 76 "Administrative Penalty Prior (Hearing) Notice", informing that it intends to fine a company 1,222,100 yuan, and a company can submit a statement and defense and a hearing request.
On April 14, 2019, a sewage treatment plant in Wenchang passed the completion of environmental protection acceptance, and it was publicized online from April 16, 2019 to May 14, 2019, and there was no feedback after the expiration of the publicity period. On May 9, 2019, the Wenchang Municipal Environment Bureau held a hearing at the request of a company and listened to the opinions of a company. On May 15, 2019, the relevant materials for the environmental protection acceptance of the completion of a sewage treatment plant in Wenchang were filed in the national environmental protection acceptance information system for the completion of construction. On May 16, 2019, a company submitted a report on the environmental protection acceptance of a sewage treatment plant in Wenchang, Wenchang City to the Wenchang Environmental Bureau.
On September 23, 2019, the Wenchang Municipal Environment Bureau issued the Wenhuan Penalty Decision [2019] No. 51 "Administrative Penalty Decision", arguing that the environmental protection facilities that needed to be built for a sewage treatment plant in Wenchang built by a company were put into use without acceptance. The Wenchang Municipal Environment Bureau has issued the No. 38 correction decision, ordering a company to go through environmental protection acceptance procedures before November 30, 2018. A company fails to correct environmental violations within the time limit, and does not submit a report to the Wenchang Municipal Environmental Bureau on the overdue correction of environmental violations, and the above behavior violates Article 19 of the Regulations on the Management of Environmental Protection of Construction Projects, which states that "the construction project that prepares an environmental impact report and an environmental impact report form can only be put into production or use if the experience of environmental protection facilities for supporting construction is qualified; Without acceptance or unqualified acceptance, it shall not be put into production or use". In accordance with Article 23 of the Regulations on the Administration of Environmental Protection of Construction Projects, it was decided to fine a company 1 million yuan. Dissatisfied, a company applied to the Wenchang Municipal Government for administrative reconsideration. On January 6, 2020, the Wenchang Municipal Government issued the Administrative Reconsideration Decision [2019] No. 44 (hereinafter referred to as the No. 44 Reconsideration Decision), upholding the No. 51 penalty decision. A company then filed an administrative lawsuit in this case, requesting the revocation of the No. 51 penalty decision and the No. 44 reconsideration decision.
On August 27, 2020, the No. 1 Intermediate People's Court of Hainan Province rendered the (2020) Qiong 96 Xingchu No. 41 Administrative Judgment: rejecting the litigation claim of a certain company.
On December 24, 2020, the Hainan Provincial High People's Court rendered the (2020) Qiong Xing Zhong No. 658 Administrative Judgment, rejecting the appeal and upholding the first-instance judgment.
After the judgment of the second instance was pronounced, a company applied to the Supreme People's Court for a retrial. On June 24, 2022, the Supreme People's Court rendered the (2022) Zui Gao Fa Xing Zai No. 329 Administrative Judgment: 1. Revoke the (2020) Qiong 96 Xingchu No. 41 Administrative Judgment of the Hainan Provincial No. 1 Intermediate People's Court and the (2020) Qiong Xing Zhong No. 658 Administrative Judgment of the Hainan Provincial High People's Court, 2. Revoke the Wenfu Fu Du Zi (2019) No. 44 Administrative Reconsideration Decision of the People's Government of Wenchang City, Hainan Province, and 3. Revoke the Administrative Penalty Decision of Wenhuan Penalty Decision Zi (2019) No. 51 of the Wenchang Municipal Bureau of Ecology and Environment of Hainan Province.
Grounds for the Trial
The effective judgment of the court held that:
1. On the purpose of the completion acceptance system for environmental protection facilities and the reform of the acceptance subject
The "three simultaneous" system is an important management system recognized by the environmental protection law of the mainland, among which the environmental protection acceptance system for the completion of construction projects is an important part of the "three simultaneous" system as a safeguard measure to supervise the implementation of the environmental impact assessment document requirements of construction projects. With the transformation of government functions and the advancement of the reform of the administrative examination and approval system, combined with the needs of environmental protection practice, the relevant legislation has continuously reformed and improved the completion acceptance system, and the acceptance subject, acceptance procedures and acceptance standards have been continuously simplified and optimized. The first paragraph of Article 26 of the Environmental Protection Law of the People's Republic of China, enacted in 1989, stipulates that "the facilities for pollution prevention and control in construction projects must be designed, constructed and put into operation at the same time as the main project." The construction project can only be put into production or use after the facilities for pollution prevention and control have been accepted and accepted by the administrative department of environmental protection that originally examined and approved the environmental impact report." Article 20 of the Regulations on the Administration of Environmental Protection of Construction Projects, formulated in 1998, stipulates that "after the completion of a construction project, the construction unit shall apply to the administrative department of environmental protection that examines and approves the environmental impact report, environmental impact report form or environmental impact registration form of the construction project for the completion and acceptance of the environmental protection facilities that need to be constructed for the construction project". The Environmental Protection Law of the People's Republic of China, amended in 2014, explicitly deleted the first paragraph of Article 26 of the previous amendment, which stipulates that "pollution prevention and control facilities must be accepted by the environmental protection administrative department that originally approved the environmental impact report before the construction project can be put into production or use". On this basis, the "Regulations on the Management of Environmental Protection of Construction Projects" revised on July 16, 2017 cancelled the administrative license for environmental protection acceptance of construction projects, reformed the acceptance subject and supervision methods, adjusted the subject of completion acceptance from the environmental protection department to the construction unit, and changed the environmental protection department's pre-acceptance permit to the post-event supervision. Article 17 of the Regulations stipulates that "after the completion of a construction project for which an environmental impact report or environmental impact report form is prepared, the construction unit shall, in accordance with the standards and procedures prescribed by the administrative department for environmental protection under the State Council, carry out acceptance of the supporting environmental protection facilities and prepare an acceptance report." In the process of acceptance of environmental protection facilities, the construction unit shall truthfully inspect, monitor and record the construction and commissioning of the environmental protection facilities of the construction project, and shall not engage in fraud. Except for the circumstances that need to be kept confidential in accordance with the provisions of the state, the construction unit shall disclose the acceptance report to the public in accordance with the law".
In this case, the Wenchang Municipal Government issued Reply No. 350 on April 24, 2017, requiring a company to apply to the Wenchang Municipal Environment Bureau for environmental protection acceptance after passing the monitoring during the trial operation. On November 23, 2017, a company in Haikou issued a "Notice of Disagreement with Acceptance" to the Wenchang Municipal Water Affairs Bureau, stating that the environmental protection department did not agree to the completion and acceptance. In 2019, when a company accepted for the second time, it organized its own acceptance according to the new regulations and passed the acceptance. It can be seen that the completion and acceptance of a sewage treatment plant project in Wenchang coincides with the transition period between the old and new completion acceptance system. However, the revised "Regulations on the Management of Environmental Protection of Construction Projects" has been implemented on October 1, 2017, and the Wenchang Municipal Environmental Bureau does not have the administrative authority to organize the acceptance. Therefore, after the implementation of the new regulations, the Wenchang Municipal Environment Bureau should have taken the initiative to provide administrative guidance and promptly inform a company to organize its own acceptance as soon as possible, but it informed the testing unit that it did not agree to the completion acceptance. This not only violates the provisions of the new regulations and the direction of reform, but also objectively causes a sewage treatment plant in Wenchang to face the dilemma of "operation before acceptance" after the expiration of the trial operation period.
2. On the reasons for the unfinished acceptance of a company's environmental protection facilities and the change of acceptance standards
A company in Haikou has stated that "the design scale of a sewage treatment plant in Wenchang, Wenchang City, is 20,000m3/d, the actual scale is 5,000m3/d, and the production load does not reach more than 75% of the design capacity.
Article 9.1.1 of the Technical Requirements for Completion Acceptance and Monitoring of Environmental Protection Facilities for Construction Projects (Trial) issued in 2000 stipulates that "for industrial production construction projects, acceptance monitoring shall be carried out under the condition that the working conditions are stable and the load of production reaches the design production capacity of more than 75% (the national and local emission standards shall implement the standard if the production load is otherwise stipulated), so the production load shall reach the standard of more than 75% (hereinafter referred to as 75% Acceptance of working conditions) as a technical standard for the completion and acceptance of environmental protection facilities, there are corresponding provisions as the basis. However, whether or not a company's production load meets the standard of 75% acceptance conditions depends on a variety of factors. The completion and acceptance of environmental protection facilities of construction projects shall focus on whether the working conditions of the construction project are stable, whether the environmental protection facilities can operate normally, and whether the actual working conditions are truthfully recorded and monitored, and it is not appropriate to stick to the 75% acceptance working condition standard. It is always a gradual process for the production load to reach more than 75%, and it is required that the sewage treatment plant that does not meet the 75% acceptance condition standard shall not be accepted, and then shall not be put into use, which is easy to make the construction project fall into a "dilemma": the operation constitutes a violation of the law and faces punishment; If the operation is stopped, the working condition cannot be gradually improved, so that the 75% acceptance condition standard will never be reached, and the completion acceptance will never be completed. This situation not only makes it impossible for sewage treatment plants to be used effectively, but also runs counter to the original intention of the "three simultaneities" system and the system for the completion and acceptance of environmental protection facilities. "The law should not make it difficult for others", and at least for some construction projects, the 75% acceptance standard should be revised. On July 13, 2016, the Ministry of Environmental Protection issued the "Decision on the Abolition of Some Environmental Protection Departmental Rules and Normative Documents", which clearly abolished 75% of the acceptance working condition standards. Paragraphs 1 and 2 of Article 5 of the Interim Measures for Environmental Protection Acceptance of Construction Projects, which came into effect in November 2017, stipulate that "after the completion of a construction project, the construction unit shall truthfully inspect, monitor and record the construction and commissioning of environmental protection facilities of the construction project, and prepare an acceptance monitoring (investigation) report." For construction projects that mainly discharge pollutants, the acceptance monitoring report shall be prepared with reference to the "Technical Guidelines for Environmental Protection Acceptance of Construction Projects for Completion and Pollution Impact"; Article 6.1 of the Technical Guidelines for Environmental Protection Acceptance of Construction Projects Completed in May 2018 further stipulates that "acceptance monitoring shall be carried out under the condition of ensuring the stability of the working conditions of the main project and the normal operation of environmental protection facilities, and truthfully record the actual working conditions during monitoring and the key parameters that determine or affect the working conditions, and truthfully record the main indicators that can reflect the operating status of environmental protection facilities." The recommended methods for recording working conditions of typical industry main projects, environmental protection projects and auxiliary projects during the acceptance monitoring period are shown in Appendix 3". The new technical specification cancels the requirement that the working conditions during the acceptance monitoring period should reach more than 75%, and clarifies that the acceptance monitoring should be carried out under the condition of ensuring the stability of the working conditions of the main project and the normal operation of environmental protection facilities, and the actual working conditions during the monitoring can be recorded truthfully.
In this case, after the Decision on the Abolition of Some Environmental Protection Departmental Rules and Normative Documents came into effect on July 13, 2016, the Wenchang Municipal Environment Bureau should no longer continue to use the 75% acceptance working condition standard, and should take the initiative to provide administrative guidance to a sewage treatment plant in Wenchang after the revised Environmental Protection Management Regulations for Construction Projects came into effect on October 1, 2017, urging it to entrust the completion and acceptance of the project as soon as possible in accordance with the new regulations, and no longer need to consider the 75% acceptance working condition standard. However, the "Disagreement Acceptance Statement" has fully proved that the Wenchang Municipal Environment Bureau continued to implement the 75% acceptance standard from April to November 2017, and continued to exercise the right of completion acceptance, which objectively caused a sewage treatment plant in Wenchang to not be completed and accepted in time and formed the dilemma of "operation before acceptance". The corresponding adverse consequences should not be borne by a sewage treatment plant in Wenchang.
3. Regarding the subjective fault and active correction of a company's "operation before acceptance".
According to the third paragraph of Article 49 of the Law of the People's Republic of China on the Prevention and Control of Water Pollution, the competent department of construction of the local people's government at or above the county level shall, in accordance with the construction plan of urban sewage treatment facilities, organize the construction of centralized urban sewage treatment facilities and supporting pipe networks, and strengthen the supervision and management of the operation of centralized urban sewage treatment facilities. According to Article 8.3 of the BOT Contract signed between Wenchang Water Affairs Bureau (Party A) and a company (Party B), Party A shall ensure that the sewage is collected and transported to the delivery point of the sewage treatment project during the entire concession period, and basically reaches the water quantity and influent quality specified in Article 9 of this contract. Therefore, the Wenchang Water Affairs Bureau is not only responsible for building a supporting pipe network and collecting sewage, but also to ensure that the collected sewage meets the requirements of basic water quantity and influent water quality. The Wenchang Municipal Environment Bureau's Report to the Wenchang Municipal Government on August 24, 2018 also stated that the water inflow on that day accounted for 51% of the designed daily treatment capacity, and the sewage treatment capacity was far from reaching the designed treatment water load. The concentration of sewage inlet water is less than 50% of the design influent water quality concentration, and the concentration of major pollutants in the influent water is seriously low. The report recommends speeding up the renovation and construction of sewage collection pipe networks and implementing the construction of new pipe networks to solve the "two low" problems of seriously low sewage inlet water volume and inlet water concentration. It can be seen that the production load of a sewage treatment plant in Wenchang did not reach 75% of the design capacity, which was caused by the "two lows" caused by the construction of the supporting pipe network for sewage collection, and a sewage treatment plant in Wenchang was not subjectively at fault for this.
In order to solve the "two lows" problem as soon as possible, after passing the environmental protection acceptance of completion, a company actively communicated with the Wenchang Municipal Water Affairs Bureau and took the initiative to report to the Wenchang Municipal Government after accepting the first administrative penalty. On April 23, 2018, the Wenchang Municipal Water Affairs Bureau made the "Minutes of the Special Meeting on the Problems Existing in the Study of a Sewage Treatment Plant Project in Wenchang", which stated that the meeting studied the completion and acceptance of a sewage treatment plant project in Wenchang and other issues, and required to solve the "two lows" problem of a sewage treatment plant in Wenchang as soon as possible, and the Wenchang Municipal Water Affairs Bureau completed the construction of the sewage interception and parallel flow project (Phase II) in the Qinglan area as soon as possible, and collected the sewage in the area east of Platinum Road on Gaolong Avenue; Accelerate the preliminary work of the Qinglan Area Sewage Interception and Parallel Flow Project (Phase III), and strive for early development and construction. The Wenchang Municipal Environment Bureau's Report on the Wenchang Municipal Environment Bureau, submitted to the Wenchang Municipal Government on August 24, 2018, also recommended speeding up the renovation and construction of the sewage collection pipe network in the Qinglan area to solve the "two lows" problem.
In order to speed up the completion and acceptance, a company also submitted the "Application for Environmental Completion and Acceptance of a Sewage Treatment Plant Project in Wenchang, Wenchang City" to the Wenchang Municipal Water Affairs Bureau on December 20, 2018, and sincerely requested the Wenchang Municipal Water Affairs Bureau to support and take the lead in the environmental completion and acceptance of the project. On January 3, 2019, the Wenchang Municipal Water Affairs Bureau issued the "Reply to the Environmental Completion and Acceptance of a Sewage Treatment Plant Project in Wenchang, Wenchang City" to a company, agreeing that the company would entrust a qualified institution to carry out the environmental completion and acceptance of the project in accordance with the regulations. On January 14, 2019, a company signed the "Entrustment Agreement for Environmental Protection Acceptance of Construction Project Completion" with a company in Hainan Province, entrusting it to carry out the environmental protection acceptance and monitoring of completion. On April 14, 2019, the acceptance working group issued the "Opinions on the Completion of Environmental Protection Acceptance of a Sewage Treatment Plant Project in Wenchang, Wenchang City", the project basically met the environmental protection acceptance conditions for the completion of the national construction project, and agreed that the project passed the completion of environmental protection acceptance, and at the same time, the relevant information was publicized on the Internet, and the environmental protection acceptance materials for the completion of the project were also filed in the national construction completion environmental protection acceptance information system on May 15, 2019. On May 16, 2019, a company submitted a report on the completion of environmental protection acceptance of a sewage treatment plant in Wenchang, Wenchang City to the Wenchang Municipal Environment Bureau, reporting that the completed environmental protection acceptance work has been completed. On May 23, 2019, a company made a report on the application for formal operation of a sewage treatment plant in Wenchang, Wenchang City to the Wenchang Water Affairs Bureau, and submitted an application for formal operation.
The above shows that the Wenchang Municipal Environment Bureau is well aware of the reason why the production load has not reached the 75% acceptance standard for a long time, that is, the "two lows" of water inlet and water concentration are mainly due to the insufficient construction of the government's sewage collection supporting pipe network. None of this is under the control of a company, nor is it its responsibility, and it is not subjectively at fault. One month after the first penalty decision was made, a company requested the Wenchang Municipal Water Affairs Bureau to take the lead in the environmental completion and acceptance work, entrusted the testing company to carry out the environmental completion acceptance, and completed all the acceptance procedures four months before the second penalty decision was made. There was no subjective fault for a company that failed to eliminate the state of "operation before acceptance" in a timely manner, and actively corrected it. When the Wenchang Municipal Environmental Bureau implements administrative punishments, it shall comprehensively, objectively and impartially investigate and collect evidence that is unfavorable and favorable to the parties, and should also take into account the objective causes and subjective faults of the illegal acts and other factors and circumstances, and its claims that the objective causes of the illegal acts should not be considered do not conform to the provisions of Article 36 of the Administrative Punishment Law of the People's Republic of China (hereinafter referred to as the "Administrative Punishment Law") amended in 2017 that "a comprehensive, objective and fair investigation must be carried out and relevant evidence must be collected". The original judgment held that the cause of the illegal act did not fall within the scope of the review of the legality of the administrative act in the administrative litigation was inconsistent with the law and should be corrected.
IV. On the issue of the legality and necessity of the punishment decision being sued
Paragraph 2 of Article 4 of the Administrative Punishment Law stipulates that the establishment and implementation of administrative penalties must be based on facts and be commensurate with the facts, nature, circumstances and degree of harm to society of the illegal acts. The second paragraph of Article 27 stipulates that where the illegal conduct is minor and promptly corrected, and does not cause harmful consequences, no administrative punishment shall be given. Paragraph 1 of Article 6 of the Measures for Environmental Administrative Penalties stipulates that the exercise of discretion in administrative punishment must be in line with the legislative purpose, and comprehensively consider the following circumstances: the degree of environmental pollution, ecological damage and social impact caused by the illegal acts; the degree of fault of the parties; The attitude of the parties to correct the illegal acts and the corrective measures taken and their effects, etc.
A sewage treatment plant in Wenchang, built and operated by a company, has the public welfare of purifying and treating sewage, preventing and controlling water pollution, protecting water ecology, protecting and improving the environment, and safeguarding public health; This is different from companies that generate and discharge wastewater. The "Report of Wenchang Environmental Bureau" made by the Wenchang Municipal Environment Bureau also determined that the sewage of a sewage treatment plant in Wenchang met the requirements of the discharge standard after treatment, and all pollutant indicators met the limits of the "Pollutant Discharge Standard for Urban Sewage Treatment Plant (GB18918-2002)". Therefore, although a company has "operation before acceptance", it not only does not cause environmental pollution and ecological damage, but is conducive to environmental protection.
A company asserted that after receiving the first administrative penalty, it submitted a report to the Wenchang municipal government requesting the temporary closure of the sewage treatment plant, but received no response. On November 16, 2018, the Wenchang Municipal Water Affairs Bureau also wrote to a company that agreed to accept the sewage discharged from 16 local catering units, and on December 12, 2018, it wrote to a company requesting it to connect the sewage discharged by Hainan Qinfu Food Co., Ltd. to the plant for treatment. In addition, the shutdown of a sewage treatment plant in Wenchang, which meets the emission targets, may cause a large amount of local production and domestic sewage to be untreated, which will be directly discharged into the sea and cause environmental pollution. Pollutants such as wastewater, waste liquid, and waste residue retained in sewage treatment plants may also pose a risk of secondary pollution. The Ministry of Ecology and Environment issued the "Opinions on Further Deepening Ecological and Environmental Supervision Services to Promote High-quality Economic Development" (Huan Zong [2019] No. 74) issued by the Ministry of Ecology and Environment on September 8, 2019, which stipulates that it is strictly forbidden to indiscriminately take simple and crude measures such as emergency shutdown and business suspension in order to cope with inspectors, as well as perfunctory response practices such as "all shutdowns" and "stop first and then talk", rectify relevant ecological and environmental problems, adhere to laws and regulations, pay attention to overall planning, and establish a long-term mechanism. The reason why a sewage treatment plant in Wenchang "operates before acceptance" is that it is implemented according to the requirements of relevant departments and the objective needs of sewage treatment, and its own good faith has no subjective fault; Although it formally violates the provisions of the law, it is consistent with the principles of the law and the spirit of the legislation, and will not cause environmental pollution.
According to Article 4, 13 of the Guiding Opinions on Further Standardizing the Application of the Discretionary Power of Environmental Administrative Punishment issued by the Ministry of Ecology and Environment (Huan Law Enforcement [2019] No. 42), if the illegal act of "building without approval" does not cause environmental pollution, and the enterprise implements measures such as shutting down or stopping construction or production on its own, it can be exempted from punishment; Where other illegal conduct is minor and promptly corrected, and no harmful consequences are caused, punishment may be waived. When investigating and handling, the Wenchang Municipal Environment Bureau shall refer to the spirit of this article and comprehensively consider the causes and consequences of the illegal act of "operating before acceptance", but it has not been considered, and the exercise of discretion is improper. Even if the Wenchang Municipal Environment Bureau imposed a penalty of 300,000 yuan for the first time for "operating before acceptance", there is still a certain legitimacy and necessity; However, after a company accepts the administrative penalty, in accordance with the provisions of the "Interim Measures for the Acceptance of Environmental Protection of the Completion of Construction Projects", it actively communicates with government departments to promote the construction of supporting pipe networks, and actively requests the Wenchang Municipal Water Affairs Bureau to take the lead in the environmental completion and acceptance work, and in the case that the completion acceptance has been completed before the second penalty decision is made, the Wenchang Municipal Environmental Bureau has imposed a fine of 1 million yuan on the enterprise with an annual sewage treatment fee income of only more than 300-500 yuan, which is not legal, unreasonable or necessary. And it is easy to shirk the responsibility of the superior environmental protection inspector.
To sum up, "the law is not strong, and it is difficult". Although a company objectively has the illegal act of "operating before acceptance", there is no subjective fault, and its re-punishment is not in line with the concept of good faith and civilized law enforcement, nor does it meet the legal requirements of the construction of Hainan Free Trade Port. When the Wenchang Municipal Environment Bureau made the decision to punish the lawsuit, it failed to fully consider the particularity of the illegal act of "operating before acceptance" of the sewage treatment plant, and failed to fully consider the objective causes, harmful consequences, subjective faults, and subsequent remedial perfection of the illegal acts, and the discretionary results were obviously improper and should be revoked. Reconsideration Decision No. 44 erroneously upheld an administrative penalty decision that should be revoked and should be revoked.
Summary of the trial
1. With the transformation of government functions and the advancement of the reform of the administrative examination and approval system, the environmental protection supervision system has changed from pre-supervision to ex-post supervision, and the completion acceptance system of environmental protection facilities of construction projects has been continuously simplified and optimized. After the main body of the completion and acceptance of environmental protection facilities is adjusted by the environmental protection department to the construction unit, and the strict 75% acceptance condition standard is cancelled, the administrative department of environmental protection shall immediately implement the new regulations, and promptly guide the enterprise to carry out the completion and acceptance of environmental protection facilities on its own, and should not continue to implement the old regulations and old standards, and can not ignore the special reasons during the transition period of the old and new regulations, and abuse the administrative punishment power.
2. The law should not make it difficult for others. When administrative organs carry out administrative punishments, they must comprehensively, objectively, and impartially investigate and collect relevant evidence, and when administrative organs make administrative punishments, they should take into account factors and circumstances such as the objective causes and subjective faults of the illegal conduct, weigh the necessity of punishments, handle them comprehensively, objectively, and fairly, insist that the punishment is proportionate, embody the concept of goodwill and civilized law enforcement and inclusive and prudential supervision, and cannot be managed by fines.
Associate indexes
Articles 4 and 5 of the Administrative Punishment Law of the People's Republic of China
Article 49 of the Water Pollution Prevention and Control Law of the People's Republic of China
First instance: Hainan Provincial No. 1 Intermediate People's Court (2020) Qiong 96 Xingchu No. 41 Administrative Judgment (August 27, 2020)
Second instance: Hainan Provincial High People's Court (2020) Qiong Xingzhong No. 658 Administrative Judgment (December 24, 2020)
Retrial: Supreme People's Court (2022) Zui Gao Fa Xing Zai No. 329 Administrative Judgment (June 24, 2022)