The “Measures of Administrative Penalty for Ecological Environment” will be implemented from July 1, 2023

In view of the new problems arisen in the environmental law enforcement in the past 10 years, and the implementation of the newly revised “Administrative Penalty Law” on July 15, 2021, the General Office of the Ministry of Ecology and Environment revised the “Measures of Administrative Penalty for Environment” (hereinafter referred to as the “Old Measures”) and publicly solicited opinions in August 2022. On May 8, 2023, the Ministry of Ecology and Environment issued the revised ” Measures of Administrative Penalty for Ecological Environment” (hereinafter referred to as the “New Measures”), which will be implemented from July 1, 2023. Here are some highlights that enterprises should pay attention to by comparing the Old Measures.

1. Refine the types of penalties

In addition to the types in the Old Measures, the New Measures has added four types, which are, 1) circulation of a notice of criticism; 2) downgrading of qualification and grades; 3) restriction on the conduct of production and operation activities, ordering for suspension of production and operation, ordering for closedown, restriction or prohibition on practice; and 4) order on removal in a time limit. The item (3) and item (4) are not new, because they have been mentioned in Article 12 of the Old Measures under the explanation regarding the order to make correction. The item (1) and item (2) are newly added items, and are mainly rooted from the administrative of credit, which is a key administrative point of the Chinese government.

2. Refine and revise the elements of administrative enforcement procedures

The New Measures modify the filing deadline from 7 working days to 15 days, and in special circumstances, it can be extended to another 15 days; and the time limit for taking corresponding measures to register and preserve evidence in advance has been changed from 7 working days to 7 days. In addition, the New Measures further prescribe the details of the notification and hearing procedures, such as stipulating six circumstances in which the hearing procedure should be organized; clarify the procedures for organizing hearings; and add legal review and collective discussion procedures.

3. Add circumstances of no administrative penalty, lighter or mitigated administrative penalty

The Old Measures only stipulate one circumstance of no administrative penalty, that is, the illegal act is minor, the offender corrects in time, and causes no harmful ecological environmental consequences. The New Measures add two circumstances, which are, 1) an offender violates the law for the first time with minor harmful consequences and makes corrections in a timely manner; and 2) a party concerned has sufficient evidence to prove that he has no subjective fault.

Regarding the lighter or mitigated administrative penalty, the New Measures add five circumstances, which are, 1) the offender has taken initiative to eliminate or reduce the harmful consequences of the illicit ecological and environmental act; 2) the offender is coerced or induced by another person to commit the illegal ecological and environmental act; 3) the offender voluntarily confesses an illegal ecological and environmental act that is not yet known to the administrative organ; 4) the offender has performed meritorious service in cooperating with administrative organ to investigate illegal ecological and environmental acts; and 5) other circumstances under which a lighter or mitigated administrative penalty shall be imposed as provided for by laws, regulations or rules.