Sui Huan Gui Zi [2023] No. 4

All sections/offices, sub-bureaus, monitoring stations and directly affiliated units,

　　As part of the effort to optimize the business environment, further standardize administrative coercion over ecological environment, ensure legal and appropriate administrative coercion over ecological environment, safeguard public interests and social order, and protect legitimate rights and interests of citizens, legal persons and other organizations, according to the Environmental ProtectionLaw of the People’s Republic of China, the Administrative Coercion Law of the People’s Republic of China, the Measures for Competent Environmental Protection Departmentson Sealing up and Seizure, and the Opinions of the General Office of the State Council on Further Standardizing the Formulation and Management of Administrative Coercion Discretion Benchmark(Guo Ban Fa [2022] No. 27), this bureau formulates the Regulations of Guangzhou Municipality on Standardizing Administrative Coercion Discretion over Ecological Environmentbased on the actual needs of Guangzhou. As it has been examined and approved of by Guangzhou Justice Bureau, it is hereby printed and distributed. Please comply with and implement it. If there is any problems during the implementation process, please report to (the law enforcement department of) this bureau directly.

Guangzhou Municipal Ecological Environment Bureau

February 10, 2023

Regulations of Guangzhou Municipality on Standardizing Administrative Coercion Discretion over Ecological Environment

　　Article 1 In order to optimize the business environment, further standardize the exercise of administrative coercion over ecological environment, ensure legal and appropriate administrative coercion over ecological environment, safeguard public interests and social order, and protect legitimate rights and interests of citizens, legal persons and other organizations (hereinafter referred to as “the offender/offenders”), according to the Environmental Protection Law of the People’s Republic of China, the Administrative Coercion Law of the People’s Republic of China, the Measures for Competent Environmental Protection Departmentson Sealing up and Seizure, and the Opinions of the General Office of the State Council on Further Standardizing the Formulation and Management of Administrative Coercion Discretion Benchmark(Guo Ban Fa [2022] No. 27), these Regulations are formulated based on the actual needs of Guangzhou in administrative law enforcement for ecological environment.

　　Article 2 These Regulations should apply to administrative coercion over ecological environment exercised by Guangzhou’s ecological environment administrative department within Guangzhou’s administrative area.

　　Article 3 Administrative coercion over ecological environment includes administrative coercive measures for ecological environment and administrative coercive execution for ecological environment.

　　“Administrative coercive measures for ecological environment” mentioned in these Regulations refer to temporary control carried out by the competent ecological environment department during administrative management over the equipment, facilities, sites, articles and tools of the offender according to law in order to stop illegal acts, prevent damage to evidence, avoid hazards, and control risks, etc., mainly including sealing up, seizure and other administrative coercive measures stipulated in laws and regulations.

　　“Administrative coercive execution for ecological environment” mentioned in these Regulations refer to the act of the competent ecological environment department or the people’s court, as applied by the competent ecological environment department, to coerce the offender who fails to perform an administrative decision to perform its obligations according to law, mainly including performing an administrative decision on behalf of the offender, coercive demolition and fines.

　　Article 4 The exercise of administrative coercion over ecological environment should follow the principles of legality, appropriateness and balance of education and coercion.

　　Article 5 Before exercising administrative coercive measures for ecological environment, law enforcement personnel should conduct a comprehensive, objective and impartial investigation and inspection according to law, collect evidence that can prove that the offender’s discharge of pollutants in violation of laws and regulations has caused or is likely to cause serious pollution, or that relevant evidence may be lost, concealed or illegally transferred, or evidence of the offender’s refusal to perform the administrative decision after violating the order of ecological environment administration.

　　Evidence collected should comply with the Administrative Procedure Law of the People’s Republic of China, the Interpretations of the Supreme People’s Court on the Application of the Administrative Procedure Law of the People’s Republic of Chinaand the Regulations of the Supreme People’s Court on Some Issues Concerning Evidence in Administrative Litigation.

　　The offender should accept and cooperate with the investigation according to law, truthfully answer questions raised in inquiries, report relevant information and provide relevant materials, and should not refuse or obstruct the investigation or resort to fraud by any means.

　　Article 6 The offender should have the right to make a statement and the right to defend against administrative coercion over ecological environment carried out by the competent ecological environment department; the right to apply for administrative reconsideration or bring an administrative lawsuit according to law; and the right to demand compensation according to law if the offender suffers damage as a result of administrative coercion over ecological environment carried out by the competent ecological environment department in violation of law.

　　Article 7 Where the offender discharges pollutants in violation of laws and regulations, under any of the following circumstances, the competent ecological environment department may seal up or seize the equipment, facilities, sites, articles or tools that contribute to the discharge of pollutants:

　　7.1 discharge, dump or dispose of wastes containing pathogens of infectious diseases, hazardous wastes, pollutants containing heavy metals, persistent organic pollutants or other toxic substances or other harmful substances in violation of law;

　　7.2 discharge, dump or dispose of pollutants in violation of laws and regulations in the primary protection area of a drinking water source or the core area of a nature reserve;

　　7.3 discharge or dump chemical, pharmaceutical, petrochemical, printing, dyeing, electroplating, papermaking or tanning industrial sludge in violation of laws and regulations;

　　7.4 discharge atmospheric pollutants in violation of laws and regulations, which cause or may cause serious atmospheric pollution, or the loss or concealment of relevant evidence;

　　7.5 discharge toxic or harmful substances in violation of laws and regulations, which cause or may cause serious soil pollution, or the loss or concealment of relevant evidence;

　　7.6 collect, store, transport, use or dispose of solid wastes in violation of law, which cause or may cause serious environmental pollution, or the loss, concealment or illegal transfer of evidence;

　　7.7 discharge noise to cause serious pollution and refuse to make corrections after being ordered to do so;

　　7.8 illegally produce, sell, use, import or export ozone-depleting substances;

　　7.9 circumstances stipulated in Article 39(4) of the Management Regulations on Medical Wastes;

　　7.10 other illegal discharges of pollutants that cause or may cause serious pollution prescribed in laws and regulations.

　　Under the circumstance specified in 7.6 of the preceding paragraph, the competent ecological environment department may seal up or seize the solid wastes illegally collected, stored, transported, used or disposed of by the offender. Under the circumstance specified in 7.8 of the preceding paragraph, the competent ecological environment department may seal up or seize the ozone-depleting substances and their raw materials and products that are illegally produced, sold, used, imported or exported.

　　Article 8 Where the offender discharges pollutants in violation of relevant laws and regulations, under any of the following circumstances, the competent ecological environment department should seal up or seize the equipment, facilities, sites, articles or tools that contribute to the discharge of pollutants, or the solid wastes that are illegally collected, stored, transported, used or disposed of:

　　8.1 discharge pollutants in violation of laws and regulations through hidden pipes, seepage wells, seepage pits, cracks, karst caves or perfusion, or tampered or falsified monitoring data, or abnormal operation of pollution control facilities to evade supervision;

　　8.2 fail to stop production or discharge as required after the occurrence of a large, serious or especially serious environmental emergency, and continue to discharge pollutants in violation of laws and regulations;

　　8.3 circumstances that cause “serious environmental pollution” specified in judicial interpretations on environmental pollution crimes issued by the Supreme People’s Court and the Supreme People’s Procuratorate;

　　8.4 other circumstances that have caused serious pollution.

　　Article 9 Sealing up and seizure should be conducted according to the statutory authority, scope, terms and procedures.

　　Before sealing up or seizure, the competent ecological environment department should, based on evidence collected through investigation, comprehensively analyze the facts, nature, circumstances and degree of social harm of the illegal act that harms ecological environment, and comprehensively determine whether the illegal act has caused or may cause environmental pollution, or whether relevant evidence is likely to be lost, concealed or illegally transferred.

　　Objects to be sealed up or seized should be limited to equipment, facilities, sites, articles and tools that cause the discharge of pollutants or are related to the illegal act. Where the administrative purpose can be achieved by non-coercive means, no sealing up or seizure should be conducted.

　　Where the circumstance of illegal pollution discharge is significantly minor or there is no obvious social harm, sealing up or seizure may not apply; where it is necessary to apply sealing up or seizure, the impact on the offender’s normal production and business activities should be minimized.

　　The procedures for sealing up and seizure include investigation and evidence collection, examination and approval, decision, service, execution and termination. The competent ecological environment department should conduct sealing up and seizure according to the Administrative Coercion Law of the People’s Republic of Chinaand the Measures for Competent Environmental Protection Departmentson Sealing up and Seizure.

　　Article 10 When a radiation accident occurs or there is evidence to prove that a radiation accident may occur, the competent ecological environment department should have the right to take the following temporary control measures:

　　10.1 order to stop operations that cause or may cause the radiation accident;

　　10.2 organize and control the accident site.

　　If the competent ecological environment department adopts the above temporary control measures, it should comply with the general provisions of the procedure for executing administrative coercive measures specified in the Administrative Coercion Law of the People’s Republic of China.

　　Article 11 If the competent ecological environment department has made an administrative decision according to law, requiring the offender to perform such obligations as eliminating environmental pollution and obstruction, eliminating impacts of environmental pollution and restoring the environment, but the offender fails to perform such obligations within the time limit and still fails to perform them after being urged to do so, the consequences of which have caused or will cause environmental pollution or ecological damage, the competent ecological environment department may perform such obligations on behalf of the offender or authorize a third party who has no interest to perform such obligations.

　　Article 12 If the offender violates relevant laws and regulations under any of the following circumstances, the competent ecological environment department should perform the offender’s obligations on behalf of the offender according to law, with expenses incurred borne by the offender:

　　12.1 discharge oil, acid liquid or alkali liquid into a water body and fail to take control measures within the time limit after being ordered to do so to eliminate pollution within the time limit; 

　　12.2 discharge highly toxic waste liquid into a water body, or discharge or dump into a water body or directly bury into the ground soluble highly toxic waste residue containing mercury, cadmium, arsenic, chromium, lead, cyanide, yellow phosphorus, etc. and fail to take control measures within the time limit after being ordered to do so to eliminate pollution within the time limit;

　　12.3 clean vehicles or containers that have been loaded with oil or toxic pollutants in a water body and fail to take control measures within the time limit after being ordered to do so to eliminate pollution within the time limit;

　　12.4 discharge or dump industrial waste residues, urban refuse or other wastes into a water body, or pile up or store solid wastes or other pollutants on a beach and bank slope below the highest water level of a river, lake, canal, channel or reservoir and fail to take control measures within the time limit after being ordered to do so to eliminate pollution within the time limit;

　　12.5 discharge or dump radioactive solid wastes or waste water containing highly or moderately radioactive substances into a water body and fail to take control measures within the time limit after being ordered to do so to eliminate pollution within the time limit;

　　12.6 discharge, dump, dispose of or pile up highly toxic articles, oil, acid, alkali, or radioactive solid wastes within the protection area of a drinking water source, or discharge waste water containing highly or moderately radioactive substances and fail to take control measures within the time limit after being ordered to do so to eliminate pollution within the time limit;

　　12.7 discharge waste water containing low-level radioactive substances, thermal waste water or sewage containing pathogens into a water body in violation of relevant state regulations or standards and fail to take control measures within the time limit after being ordered to do so to eliminate pollution within the time limit;

　　12.8 discharge, dump, dispose of or pile up industrial waste residues, household wastes, medical wastes or other wastes within the protection area of a drinking water source, or discharge waste water containing low-level radioactive substances in violation of relevant state regulations and standards and fail to take control measures within the time limit after being ordered to do so to eliminate pollution within the time limit;

　　12.9 transport or store sewage or other wastes without taking anti-leakage measures, or discharge seepage underground through seepage wells, seepage pits, cracks and karst caves and fail to take control measures within the time limit after being ordered to do so to eliminate pollution within the time limit;

　　12.10 fail to take anti-leakage measures, etc., or construct a groundwater quality monitoring well and fail to take control measures within the time limit after being ordered to do so to eliminate pollution within the time limit;

　　12.11 fail to use double-layer tanks or take other effective measures such as constructing anti-leakage ponds, or fail to carry out anti-leakage monitoring as for underground oil tanks of a gas station, etc. and fail to take control measures within the time limit after being ordered to do so to eliminate pollution within the time limit;

　　12.12 cause a water pollution accident but fail to take control measures as required after being ordered to do so to eliminate pollution within the time limit or lack of control capacity;

　　12.13 fail to dispose of hazardous wastes generated according to regulations and fail to make corrections after being ordered to do so;

　　12.14 fail to investigate the soil pollution status according to regulations, or fail to assess the risk of soil pollution according to regulations, or fail to take risk control measures according to regulations, or fail to take recovery measures according to regulations, or fail to authorize a relevant organization to assess the effect of risk control and recovery after completing risk control and recovery, and fail to make corrections after being ordered to do so;

　　12.15 use heavy metal pollutants or other toxic and harmful substances as backfill or filling materials and fail to take control measures within the time limit after being ordered to do so to eliminate pollution within the time limit;

　　12.16 fail to dispose of radioactive solid wastes the offender generates according to the Law of the People’s Republic of China on the Prevention and Control of Radioactive Pollutionand fail to make corrections within the time limit after being ordered to do so within the time limit;

　　12.17 fail to dispose of waste radioactive sources according to regulations, or fail to decommission sites that use Class I, II and III radioactive sources, sites that produce radioactive isotopes, and radiological installations that produce radioactive contamination after their operations terminate, and fail to make corrections within the time limit after being ordered to do so within the time limit;

　　12.18 An nuclear installation operating organization sends waste radioactive sources to an organization without a corresponding license for storage or disposal, or sends other radioactive solid wastes to an organization without a corresponding license for disposal or unauthorized disposal, but fails to take control measures within the time limit after being ordered to do so to eliminate pollution within the time limit and fails to take control measures even after being urged to do so;

　　12.19 A nuclear technology utilization organization sends waste radioactive sources or other solid radioactive wastes to an organization without the corresponding license for storage or disposal or unauthorized disposal, but fails to take control measures within the time limit after being ordered to do so to eliminate pollution within the time limit and fails to take control measures even after being urged to do so;

　　12.20 A storage organization of radioactive solid wastes sends waste radioactive sources or other radioactive solid wastes to an organization without the corresponding license for disposal or unauthorized disposal but fails to take control measures within the time limit after being ordered to do so to eliminate pollution within the time limit and fails to take control measures even after being urged to do so;

　　12.21 Other circumstances where administrative coercive performance on behalf of the offender for ecological environment should apply stipulated in laws and regulations.

　　Article 13 Performing the offender’s obligations on behalf of the offender should be conducted according to the statutory authority, scope, terms and procedures.

　　Before performing the offender’s obligations on behalf of the offender, the competent ecological environment department should, based on evidence collected through investigation, determine whether the offender has actually violated the order of ecological environment administration. If the offender has actually violated the order of ecological environment administration, it should promptly issue an administrative decision, ordering the offender to perform such obligations as eliminating environmental pollution and obstruction, eliminating impacts of environmental pollution and restoring the environment. If the offender fails to perform such obligations within the time limit and still fails to perform such obligations after being urged to do so, the competent ecological environment department should, in light of the circumstance of the offender’s failure to perform such obligations, determine that the offender’s failure to perform such obligations has caused or will cause environmental pollution or ecological damage.

　　The competent ecological environment department should perform the offender’s obligations on behalf of the offender according to law and should not resort to violence, intimidation or other illegal means.

　　The procedures for performing the offender’s obligations on behalf of the offender include investigation and evidence collection, issuing a decision to order the offender to perform obligations, issuing a decision to urge the offender to perform obligations, issuing a decision to perform the offender’s obligations on behalf of the offender, informing the offender before performing the offender’s obligations on behalf of the offender, service and execution. The competent ecological environment department should perform the offender’s obligations on behalf of the offender according to the Administrative Coercion Law of the People’s Republic of China.

　　Article 14 If it is necessary to immediately remove spills, obstructions or pollutants on roads, river courses, waterways or public places but the offender is unable to do so, the competent ecological environment department may decide to immediately perform the offender’s obligations on behalf of the offender, with expenses incurred borne by the offender. If the offender is not present, the competent ecological environment department should notify the offender immediately afterward and handle the matter according to law.

　　Article 15 The competent ecological environment department should, according to law, force demolition if the offender violates relevant regulations and falls into any of the following circumstances:

　　15.1 set up a sewage discharge outlet outside the protection area of a drinking water source in violation of laws, administrative regulations and the provisions of the competent ecological environment department under the State Council, and fail to demolish it within the time limit after being ordered to do so within the time limit;

　　15.2 build, rebuild or expand a sewage discharge outlet in a river or lake without the consent of the competent ecological environment department or the supervisory and administrative ecological environment organ in the river basin and fail to demolish it within the time limit after being ordered to do so within the time limit;

　　15.3 build or expand a decentralized heating boiler burning coal, heavy oil, residue oil and biomass in the area covered by the urban central heating network, or fail to demolish the heating boiler that has been built but can not meet discharge standards.

　　In the event of the circumstances specified in 15.1 and 15.2 of the preceding paragraph, demolition expenses should be borne by the offender.

　　The competent ecological environment department should carry out demolition according to the general provisions of the procedure for the administrative organ to exercise administrative coercion specified in the Administrative Coercion Law of the People’s Republic of China.

　　Article 16 Where the competent ecological environment department applies to a people’s court for coercive execution of an administrative decision, the following conditions should be met:

　　16.1 The administrative decision has entered into force and has enforceable elements;

　　16.2 The offender does not apply for administrative reconsideration or bring an administrative lawsuit within the statutory time limit, nor does it implement the administrative decision;

　　16.3 The offender is the obligor specified in the administrative decision;

　　16.4 The offender has been urged to perform the decision but fails to perform it within the time limit for performance;

　　16.5 A written application is submitted within 3 months from the date of expiration of the statutory time limit.

　　The statutory time limit prescribed in 16.5 of the preceding paragraph should be:

　　16.5.1 6 months from the date of service of the administrative decision, if the offender has not applied for administrative reconsideration and has not filed an administrative lawsuit;

　　16.5.2 15 days from the date of service of the reconsideration decision to uphold the administrative decision, if the offender has not filed an administrative lawsuit.

　　If delayed or installment fine payment is approved by the competent ecological environment department, the statutory time limit for applying to the people’s court for coercive execution should be calculated from the date when the delayed or installment fine payment period ends.

　　Article 17 If the offender brings a lawsuit against an administrative decision and refuses to perform a judgment, ruling or conciliation letter after being urged to do so, the competent ecological environment department may apply to the people’s court of first instance for the enforcement of the legally effective administrative judgment, ruling or conciliation letter according to 16.1 of these Regulations. The time limit for applying to the people’s court for enforcement should be two years, counted from the date when the administrative judgment document or the conciliation letter takes effect. The application time limit should be counted from:

　　17.1 the 16^thday after service of the written judgment if the offender does not file an appeal after the administrative judgment of first instance rejecting the offender’s litigation claims is made;

　　17.2 the 11^thday after service of the written ruling if the offender does not file an appeal after the administrative ruling of first instance rejecting the suit brought by the offender is made;

　　17.3 the date of service of the administrative conciliation letter;

　　17.4 the date of service of the administrative judgment document of second instance upholding the administrative decision.

　　Article 18 Where the competent ecological environment department applies to the people’s court for coercive enforcement of an administrative decision or a legally effective administrative judgment, ruling or conciliation letter, it should comply with the Administrative Coercion Law of the People’s Republic of China, the Administrative Procedure Law of the People’s Republic of Chinaand the Administrative Reconsideration Law of the People’s Republic of China.

　　Article 19 Where the competent ecological environment department has decided to impose an administrative fine for ecological environment according to law but the offender fails to perform it within the time limit, the competent ecological environment department may impose an additional fine of 3% of the amount of the fine on a daily basis according to the Administrative Coercion Law of the People’s Republic of China and the Law of the People’s Republic of China on Administrative Penalties. The amount of the additional fine should not exceed the amount of the fine.

　　If the offender still fails to perform the fine decision after being urged, nor does the offender apply for administrative reconsideration or bring an administrative lawsuit within the statutory time limit, the competent ecological environment department should apply to the people’s court for coercive enforcement of the fine and the decision to impose an additional fine in accordance with 16. and 18. of these Regulations.

　　Article 20 The competent ecological environment department should keep uninterrupted audio-visual records of the whole process of sealing up or seizing equipment, facilities, sites, articles, tools and other on-site law enforcement activities and sites that directly affect the offender’s personal freedom, life and health and major property rights and interests.

　　The competent ecological environment department should make audio and video records of the administrative law enforcement process that may cause disputes, such as service of lien and service of announcement, when exercising administrative coercion over ecological environment.

　　Article 21 The competent ecological environment department should publicize the result of administrative coercion in accordance with the Measures of Guangdong Province for Publicizing Administrative Law Enforcementand other relevant provisions, except those involving minors, state secrets, trade secrets or personal privacy, or those which may endanger state security, public security, economic security and social stability or affect the investigation and handling of a series of cases after disclosure.

　　Article 22 Where administrative coercion over ecological environment is carried out in violation of law, and losses are caused to the offender, compensation should be made according to law, and the administrative responsibility of the relevant enforcement agency and its staff should be investigated; If the case constitutes a crime, it should be transferred to a judicial organ and investigated for criminal responsibility according to law.

　　Article 23 These Regulations should come into force as of the date of printing and distributing and be valid for 5 years.

　　Disclosure: Active Disclosure

　　Office of Guangzhou Municipal Ecological Environment Bureau    February 16, 2023