By Wu Qing King & Wood Mallesons’ Commercial & Regulatory group
金杜律师事务所作为Thomson Reuters环境法板块中国地区唯一合作律所，2016、2017、2018连续三年为其提供 “Environmental law and practice in China: overview”（下称“Q&A Guide”）。Q&A Guide是一份专门针对中国环境法律的指引，提供了对中国环境法律的高度概览，并且介绍了主要的环境实务问题，包括大气和水污染物排放，环境影响评价，固体废物和危险废物，土壤污染，以及交易中的环境问题等。金杜律师事务所每年都会结合最新出台的环境法律及环境监管趋势等内容，对Q&A Guide作出更新。目前2017/2018年度的Q&A Guide已更新，将以专题形式定期在金杜说法平台进行推送，旨在为企业提供对中国环境法律体系及实务的全方位指引。
What is the regulatory regime for water pollution (whether part of an integrated regime or separate)?
The main laws on prevention and control of water pollution include the:
- Environmental Protection Law.
- Water Pollution Prevention and Control Law.
- Marine Environment Protection Law.
- Other administrative regulations and local regulations regarding water pollution prevention and control.
The Environmental Protection Law provides basic principles and regimes, while the Water Pollution Prevention and Control Law provides specific rules on water pollution prevention and control.
The government of each province, autonomous region and cities with subordinate districts can formulate the local regulations regarding water pollution prevention and control based on their practical demands. Generally, municipal emission standards regarding discharge of key water pollutants are stricter than those at the national level.
The State Council has reviewed and passed a revised draft of the Water Pollution Prevention and Control Law.
Permits and regulator
The environmental protection authorities issue two types of permits:
- Environmental protection acceptance (approval of the environmental impact assessment (EIA) and construction project completion).
- Emission permit to discharge water pollutants.
The following activities are prohibited:
- Discharging waste water into water bodies without a pollutant discharge permit.
- Setting up outfall in drinking water source reserves.
- Building, renovating or enlarging any construction projects irrelevant to water supply facilities or to water source protection in a Grade I drinking water source reserve.
- Breeding in cages, traveling, swimming, fishing or conducting any other activities that may pollute drinking waters in any Grade I drinking water source reserves.
- Building, reconstructing or enlarging any construction projects discharging pollutants into a Grade II drinking water source reserve.
- Discharging oil, acid, alkaline or highly toxic waste liquids into waters.
- Discharging or dumping soluble highly toxic waste residues containing mercury, cadmium, arsenic, chromium, lead, cyanide or yellow phosphorus into waters, or directly burying them underground.
- Discharging or dumping radioactive solid waste or waste water containing highly and medium radioactive substances into waters.
- Discharging or dumping industrial solid waste, urban refuse and other castoffs into waters.
- Stockpiling or storing solid wastes and other pollutants at bench land and bank slopes below the highest water level of rivers, lakes, canals, channels and reservoirs.
- Using any seepage well, sink, fissure or dissolved cavern to discharge or dump waste water containing pathogenic pollutants, sewage containing pathogen and other castoffs.
Where enterprises, public institutions and other operators conduct illegal actions in violation of PRC laws and cause water pollution, the environmental protection authorities or other departments with environmental protection supervision and administration functions (such as maritime authorities or fisheries authorities) will:
- Order the violators to stop the illegal act.
- Take measures for treatment within a certain time limit to clear up the pollution.
- Impose a fine against the violators.
If the violators fail to take measures for treatment within the time limit, the environmental protection authorities can appoint an entity capable of carrying out the treatment to do so, with the necessary expenses being paid by the violators.
In addition, a party who suffers damage due to the water pollution can bring a claim for the violator to eliminate the damage and pay compensation.
Certain social organisations (for example, some active environmental NGOs in China such as China Biodiversity Conservation and Green Development Foundation, Friends of Nature, All-China Environment Federation and China Environmental Protection Foundation) can:
- File environmental public interest lawsuits against actions polluting the environment, causing ecological damage and harming the public interest.
- Require the polluters to cease the infringing act, remove obstacles, eliminate dangers, restore to the original status and compensate for losses.
Departments entitled to impose administrative penalties include environmental protection authorities, maritime authorities and fisheries authorities. Penalties for unauthorised water pollution include:
- order to make corrections;
- order to restrict production;
- order to stop production and make renovations;
- order to stop or close the business;
2.Administrative detention. If any of the following apply, the environmental protection authorities can transfer the case to the public security authority, which detains the person directly in charge and other persons directly responsible:
- the wrongdoer refuses to comply with an order requiring it to cease construction of a construction project which has not undergone environmental impact assessment as legally required;
- the wrongdoer refuses to comply with an order requiring it to cease illegal discharge of pollutants without a pollutant discharge licence; and
- the wrongdoer illegally discharges pollutants by installing underground pipelines, using seepage wells or pits, conducting perfusion, or altering or forging monitoring data, through the abnormal operation of pollution prevention and control installations, or by other means to avoid supervision.
3.Criminal liabilities. Whoever, in violation of the state provisions, discharges, dumps or disposes of any of the following, causing serious environmental pollution, is criminally liable:
- radioactive waste;
- waste containing pathogens of any infectious disease;
- poisonous substances or any other hazardous substance.