The hottest environmental protection administrativ

2022-10-18
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Environmental protection administrative punishment is no longer "free"

the Ministry of environmental protection today issued several opinions on regulating the discretion of environmental administrative punishment, which unified the discretion of environmental administrative punishment for the first time

article 74 of the newly revised water pollution prevention and control law stipulates that if the sewage discharge exceeds the standard or the total amount, the environmental protection department at or above the county level shall impose a fine of 2 to 5 times the amount of the sewage charge that should be paid during the illegal discharge period

among the environmental laws currently being implemented, there are not two laws that give environmental protection administrative departments a certain freedom of punishment. Moreover, according to some laws and regulations, the administrative department of environmental protection still has considerable room for free punishment. How to make good use of discretion in accordance with the law has always been concerned by people

the punishment can range from 5000 yuan to 50000 yuan

this is a real case

in order to save transportation and disposal costs, Li, an employee of an enterprise in Shangrao City, Jiangxi Province, secretly transported the waste residue from the factory to a remote place. When he was preparing to dump it, he was found by environmental protection law enforcement officers who just passed by

according to Article 68 of the law on the prevention and control of solid waste pollution, those who discard or scatter industrial solid waste along the way in the process of transportation may be fined not less than 5000 yuan but not more than 50000 yuan

between 5000 yuan and 50000 yuan, there is 10 times the punishment space. Whether to punish 5000 yuan or 50000 yuan, not only the parties have no idea, but also the law enforcement officers feel difficult

those who use water pollutant treatment facilities abnormally, or dismantle or leave idle water pollutant treatment facilities without the approval of the competent environmental protection department, shall be ordered by the competent environmental protection department of the people's government at or above the county level to make corrections within a time limit and be fined not less than one time but not more than three times the amount of the pollutant discharge fee payable

if the discharge of water pollutants exceeds the national or local water pollutant discharge standards, or exceeds the total emission control indicators of key water pollutants, the competent environmental protection department of the people's government at or above the county level shall, within its authority, order the treatment within a time limit and impose a fine of not less than two times but not more than five times the amount of the sewage discharge fee payable

these are the provisions of the newly revised water pollution prevention and control law. In fact, there are far more similar provisions in this law. For example, the environmental protection department may impose a fine of not less than 20000 yuan but not more than 100000 yuan on enterprises that privately set up concealed pipes to discharge pollutants; If a sewage outlet is set up in a drinking water source protection zone, the environmental protection department may impose a fine of not less than 500000 yuan but not more than onemillion yuan, and may order it to stop production for rectification. Wait

according to Wang Canfa, an expert in environmental law at China University of political science and law, in the current environmental protection law, the law that gives the administrative department of environmental protection such discretionary power is not only the water pollution prevention and control law, but also the air pollution prevention and control law, environmental protection law, solid waste pollution prevention and control law, etc

discretionary power is abused

cultivate a batch of single champion enterprises with voice in the new material industry. Since the law gives the environmental protection administrative department such a large discretionary power of administrative punishment, the issue of whether the power will be abused has always been concerned by the public

the so-called discretion of environmental administrative punishment, according to the interpretation of the Ministry of environmental protection, refers to the authority of the environmental protection department to decide whether to punish the violator, the type of punishment and the extent of punishment according to the provisions of laws, regulations and rules when investigating and dealing with environmental violations

some places also have the problem of improperly exercising the discretion of administrative punishment to varying degrees. In some areas, the abuse of discretion and the output of 3-angle wave, square wave or sine wave can be controlled by computer, which even breeds law enforcement corruption and has a negative impact on society. Yang Chaofei, director of the regulation department of the Ministry of environmental protection, did not avoid the question in an interview today

he told that it was precisely because he saw the abuse of power and wanted to curb the abuse that the Ministry of environmental protection issued several opinions on regulating the discretion of environmental administrative punishment

previously, more than 10 local environmental protection departments in Hunan Province, Quanzhou, Fujian Province and Pinggu, Beijing, have begun to implement relevant regulations to regulate the exercise of administrative discretion in environmental protection

opinions are highly operable

many environmental protection laws and regulations have been formulated, but not many are easy to use. This problem, which is recognized in the field of environmental protection law, can be said to be a major problem perplexing the environmental protection department

our opinions this time have learned such a lesson, and put operability in an important position at the beginning of drafting. According to Yang Chaofei, the Ministry of environmental protection has done a lot of research on the formulation of the opinions. At the same time, the relevant regulations implemented by more than 10 local environmental protection departments in Hunan Province, Quanzhou, Fujian Province and Pinggu, Beijing were analyzed and compared

in addition, it also guarantees the operability from the detail of the opinion

according to Yang Chaofei, there are 24 opinions, involving four aspects: accurately applying the provisions of laws and regulations and reasonably grasping the "discretion" scale

specifically, how can the environmental protection department reasonably grasp the specific scale of the discretion of administrative punishment? Yang Chaofei said that according to the relevant provisions of laws and regulations, combined with the actual situation of environmental law enforcement, the opinions stipulated the corresponding heavier punishment, lighter punishment, double punishment of units and individuals, daily punishment and equal punishment scales for multiple behaviors

for example, malicious environmental violations such as privately setting up concealed pipes and secretly discharging, and using dilution means to reach the standard shall be severely punished; If an enterprise or institution causes a water pollution accident, the unit, the person in charge directly responsible and other direct personnel shall be subject to double punishment; For those who continue to commit environmental violations, the penalty shall be calculated on a daily basis and the amount of the fine shall be accumulated according to law. Yang Chaofei said that the discretion given by some laws to environmental protection administrative departments has been embodied in the opinions. In fact, the discretion of the environmental protection administration has been restricted

opinions on conflict issues are also clarified. For example, the regulations of environmental protection departments conflict with local regulations or local government regulations. The opinion stipulates that if laws or administrative regulations specifically authorize environmental protection department regulations, local regulations or local government regulations, the authorized regulations shall prevail; If there is no specific authorization, the department regulations shall be applied preferentially according to different samples and experimental force

the conflict between the regulations of the environmental protection department and those of other departments. It is clear that if the regulations of the environmental protection department are inconsistent with those of other departments, the regulations formulated according to the exclusive authority shall prevail; Regulations jointly formulated by two or more departments shall take precedence over those formulated by one department alone; If it cannot be determined how to apply, it shall be reported to the State Council for ruling in accordance with procedures

of course, due to different conditions in different regions, the specific scale of administrative punishment is difficult to be unified across the country. In this regard, Yang Chaofei explained that the Ministry of environmental protection proposed to determine a number of typical cases with appropriate discretion scales for common environmental violations as the reference standard for administrative punishment cases, so that the types and ranges of administrative punishment for similar cases in the same region and with similar circumstances are basically the same

he revealed that the Ministry of environmental protection will also study and formulate reference guidelines on the statutory specific fine range in due course

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