A few days ago, the Xiling Court heard a case of administrative punishment for excessive pollutant discharge in accordance with the law, which replied to "Is it legal to use the immediate sampling results as the basis for punishment?"
Basic facts of the case
On July 12, 2022, law enforcement officers from the Yichang Water Ecological Protection Comprehensive Law Enforcement Bureau conducted an on-site inspection of the domestic sewage treatment facilities in the work area of a mining company.
After reviewing the statement and defense opinions of a mining company, the Municipal Water Ecological Protection Comprehensive Law Enforcement Bureau made an "Administrative Penalty Decision" in accordance with the law, believing that the concentration of water pollutants discharged by the company exceeded the first-class discharge standard in the "Comprehensive Sewage Discharge Standard" (GB8978-1996), and imposed an administrative penalty of a fine of 220,000 yuan. A mining company was dissatisfied with the penalty decision and filed an administrative lawsuit with the court.
Heard by the courts
Controversy 1
Is it lawful for the defendant to use the results of immediate sampling as the basis for punishment?
On the one hand, whether the pollutant emission exceeds the standard is essentially a more scientific question of what kind of detection value represents the emission value: the average value of multiple samples represents the pollutant emission value is more reasonable, or can each instantaneous sample value be recognized as the emission value?
The value of real-time sampling is the real value of pollutant discharge, which is closer to the fact of whether the pollutant discharge exceeds the standard, while the value of mixed sampling can be understood as the simulated value of multiple weighted averages, which is more suitable for analyzing the law and trend of pollutant discharge. Compared with the mixed sample value, the real-time sampling value is more scientific and accurate as the basis for judging whether the sewage discharge exceeds the standard.
On the other hand, from the perspective of legal application, the following regulations, standards, normative documents and other documents mainly involve pollutant discharge standards, testing and monitoring sampling methods:
1. In 2002, the former State Environmental Protection Administration and the General Administration of Quality Supervision and Quarantine of the People's Republic of China issued the "Pollutant Discharge Standards for Urban Sewage Treatment Plants" (GB18918-2002), and made it clear that the standards were interpreted by the former State Environmental Protection Administration. The discharge standard stipulates that the discharge standard of water pollutants in urban sewage treatment plants is the daily average, the sampling frequency is at least once every 2 hours, and the mixed sample is taken for 24 hours.
2. On February 27, 2007, the former State Environmental Protection Administration issued the "Interpretation on the Issues of Pollutant Discharge Monitoring Methods in On-site Inspections of Environmental Protection Departments" (Announcement No. 16 of 2017), which clearly stated: "According to relevant laws and regulations, emission standards have the effect of mandatory implementation and must be implemented. Complying with emission standards is a legal obligation of pollutant dischargers. The pollutant discharge method and discharge limit specified in the discharge standard are the technical basis for judging whether the pollutant discharge behavior exceeds the standard, and at any time and under any circumstances, the pollutant discharge behavior of the pollutant discharging unit shall not violate the relevant provisions of the discharge standard. When the environmental protection department conducts a supervisory inspection of a pollutant discharger, it may use the results of on-site sampling or monitoring by environmental protection personnel as the basis for determining whether the pollutant discharge exceeds the standard and implementing relevant environmental protection management. ”
3. Article 37 of the Measures for Administrative Penalties for Environmental Protection of the Ministry of Environmental Protection, which came into effect on March 1, 2010, stipulates that "when the competent department of environmental protection supervises and inspects the pollutant discharger, it may take samples on the spot immediately, and the monitoring results can be used as evidence to determine whether the pollutant discharge exceeds the standard." ”
4. On October 27, 2017, the Ministry of Environmental Protection also clarified in the "Reply to Issues Concerning the Timely Use of Monitoring Data on Site" that on-site instant sampling of urban sewage treatment plants is one-time sampling. Both the laws and regulations, as well as the reply issued by the Ministry of Environmental Protection, make it clear that the monitoring results of on-site real-time sampling can be used as evidence to determine whether the pollutant discharge exceeds the standard.
Focus 2
Is the plaintiff's act of discharging pollutants in excess of the standard a minor violation of the law that should or can not be punished?
The pollution consequences and environmental effects of water pollution generally have a lag and are often not easy to detect when pollution occurs, but once the pollution consequences occur, it means that environmental pollution has reached a very serious level. In this case, the pollutants discharged by the plaintiff's domestic sewage were detected to exceed the standard by 4 factors, and the total phosphorus concentration exceeded the standard by more than 10 times, which had an impact on and damaged the water environment, and had caused environmental pollution consequences, which did not meet the situation in the Special List of Minor Violations of the Ecological Environment in Hubei Province (2021 Edition). Therefore, the plaintiff's opinion that minor violations should or can not be punished should not be adopted by the court in accordance with law.
In summary, the facts of the Administrative Penalty Decision issued by the Yichang River Water Ecological Protection Comprehensive Law Enforcement Bureau are clear, the evidence is sufficient, the procedures are lawful, and the law is correctly applied, so the plaintiff's claim to the court will not be supported by the court in accordance with law.
The court of second instance upheld the original verdict.
New perspectives
Conflict between the old Measures and standards
Article 37 of the Measures for Environmental Administrative Penalties, issued in 2010, stipulates that "when the competent department of environmental protection supervises and inspects pollutant dischargers, it may take samples on the spot and the monitoring results can be used as evidence to determine whether the pollutant discharge exceeds the standard." "Based on the provisions of this article, the ecological and environmental law enforcement department will take the immediate sampling during supervision and inspection as evidence that the pollutant discharger exceeds the pollutant discharge standard.
However, the Measures for Administrative Penalties for the Ecological Environment, which came into effect on July 1, 2023, deleted the provision that on-site instant sampling can be used as the basis for determining excessive emissions, and whether "instant sampling" can be used as evidence to determine excessive emissions has become a major and difficult issue for law enforcement authorities.
The 2010 version of the Measures for Environmental Administrative Penalties clearly stipulates that the results of on-site instant sampling can be used as evidence to determine that the standard is exceeded, but in practice there is still controversy over whether the immediate application can be used as evidence of excessive pollutant discharge. The main reason is that the maximum allowable discharge concentration in the pollutant discharge standard is calculated according to the daily average value, such as the "Pollutant Discharge Standard for Urban Sewage Treatment Plants" (GB 18918-2002) clearly stipulates that the sampling frequency of the pollutant discharge concentration is at least once every 2 hours, and the mixed sample is taken for 24 hours, which is calculated as the daily average value.
In 2018, the Tianjin Environmental Protection Bureau sent a letter to the Ministry of Ecology and Environment on the issue of "instant sampling", and the Ministry of Ecology and Environment replied again, and the "Reply to the Issue of Instant Sampling for Environmental Administrative Punishments" (Huanban Regulation Letter [2018] No. 1246) stated that Article 37 of the "Measures for Environmental Administrative Punishment" stipulates that "when the competent department of environmental protection supervises and inspects the pollutant discharger, it may take immediate sampling on the spot, and the monitoring results can be used as evidence to determine whether the pollutant discharge exceeds the standard." On February 27, 2007, our ministry issued the "Interpretation on the Pollutant Discharge Monitoring Methods in the On-site Inspection of the Environmental Protection Department" (Announcement No. 16 of 2007 of the former State Environmental Protection Administration), stipulating: "The pollutant discharge methods and discharge limits specified in the emission standards are the technical basis for judging whether the pollutant discharge behavior exceeds the standard, and the pollutant discharge behavior of the pollutant discharging unit shall not violate the relevant provisions of the discharge standard at any time and under any circumstances." ”
Accordingly, on-site instant sampling means that a sample can be taken for monitoring during on-site inspection, and the monitoring results can be used as evidence to determine whether the pollutant discharge exceeds the standard. The collection of this sample should be carried out in accordance with the relevant technical specifications.
The Ministry of Ecology and Environment's response is consistent with the Measures for Environmental Administrative Penalties, arguing that immediate sampling can be evidence of excessive emissions.
The new trend of "instant sampling" problem
In 2020, the General Office of the Ministry of Ecology and Environment (MEE) issued the Amendment to the Pollutant Discharge Standards for Urban Sewage Treatment Plants (GB 18918-2002) (Draft for Comments), which also takes into account the maximum daily allowable discharge concentration of pollutant discharge and the maximum allowable discharge concentration for a single monitoring, and sets the maximum allowable discharge concentration for a monitoring on the basis of maintaining the original average maximum daily allowable discharge concentration of some pollutants. For example, the first-level standard A standard for the daily average allowable emission concentration of chemical oxygen demand (COD) is 50 mg/L, and the corresponding maximum allowable emission concentration for a monitoring is 75 mg/L.
At the same time, the Measures for Administrative Penalties for the Ecological Environment, which came into effect on July 1, 2023, deleted the provision that on-site instant sampling can be used as the basis for determining excessive emissions, and changed it to the first paragraph of Article 29, which stipulates: "During on-site inspections, the competent departments of ecology and environment may conduct on-site sampling in accordance with the requirements of relevant technical specifications, and the monitoring (testing) data obtained can be used as evidence to determine the facts of the case." ”
Therefore, when enforcing law sampling, the competent department of ecology and environment should not simply use the one-time sampling results as an opinion to determine that the standard is exceeded, but should conduct sampling in accordance with the requirements of relevant technical specifications.
Source: Detector