In order to further regulate the exercise of discretion in administrative penalty for ecological environment, improve the capacity and level of law-based administration of the ecological environment departments and effectively prevent corruption in law enforcement, the standards statement is hereby formulated in accordance with regulations such as the Guiding Opinions on Further Regulating Applicable Discretion in Administrative Penalty for Environment (Huan Zhi Fa [2019] No. 42) issued by the Ministry of Ecology and Environment and the Guiding Opinions on the Regulation and Implementation of Administrative Penalty Discretion Standards (Jing Zheng Fa Zhi Fa [2015] No. 16) issued by the former Legal Affairs Office of the People's Government of Beijing Municipality, and based on the exercise of discretion in administrative penalties commonly used in the law enforcement for ecological environment in Beijing.

Ⅰ. Fundamental Principles and Requirements

The regulation and exercise of discretion in administrative penalty must be conducive to environmental supervision, and follow the principles of being lawful and rational, fair and impartial, reasonable, educational, and being applicable.

The exercise of discretion in administrative penalty shall be based on the purpose of law, take into account and assess all relevant factors of the violations such as the fact, nature, circumstances and degree of danger to society, and avoid the interference of irrelevant factors. The applicable laws, regulations and rules for similar administrative violations with basically the same facts, nature, circumstances and degree of danger to society, shall be clarified, and discretionary decision shall be made, as appropriate, on whether an offender shall be given a penalty, the type and range of the penalty,  so as to align the regulatory basis and the type and range of penalty applied to the same types of cases with similar circumstances.

II. Special Circumstances for the Exercise of Discretion

(i) Circumstances under which heavier penalties may be imposed

1. Being punished for similar environmental violations three times and above within two years;

2. Excessive emission of air pollutants during periods of heavy air pollution warnings;

3. Threats, abuse, beatings, intimidation or retaliation against law enforcement officers during the investigation and handling of cases;

4. Environmental violations causing environmental pollution in two or more administrative regions;

5. Environmental violations causing adverse social repercussions; and

6. Other circumstances under which heavier penalties shall be imposed.

(ii) Circumstances under which the penalty shall be mitigated or reduced

1. Taking the initiative to eliminate or mitigate the harmful consequences resulting from the environmental violation;

2. Committing environmental violations under coercion;

3. Performing meritoriously in cooperation with ecology and environment departments to investigate and handle environmental violations;

4. Other cases in which the administrative penalty shall be mitigated or reduced in accordance with law.

(iii) Circumstances under which no penalty shall be imposed (list)

1. No administrative penalties shall be imposed on violations under any of the following circumstances where minor violation is corrected in time and causes no harmful consequences.

(1) The construction project is located outside the environmentally sensitive areas listed in Article 3 (a) and (b) of the Classification Catalogue for Environmental Impact Assessment of Construction Projects, involves alteration, expansion and technological transformation, but fails to obtain the approval of environmental impact assessment (EIA) authorities pursuant to the law, whether being still under construction, or completed yet not put into production or use, provided that it immediately stops or restores the site after the on-site inspection by law enforcement officers;

(2) The project has not completed environmental protection acceptance procedures but the acceptance is completed and the acceptance report is disclosed within 3 months from the date of the on-site inspection by law enforcement officers, though it has obtained EIA approval and the pollution prevention and control facilities have been set up in accordance with the reply of EIA authorities and are in normal operation;

(3) Gas boilers with a total capacity ranging from 1 t/h (exclusive) to 10 t/h (inclusive) have been put into use without obtaining EIA approval and completing the acceptance procedures, provided that the procedures of EIA approval and acceptance are completed and the acceptance report is disclosed within 3 months from the date of the on-site inspection by law enforcement officers;

(4) The constructor has not filed pursuant to the law the environmental impact registration form of the construction project but completes the filing within 5 working days from the date of on-site inspection by law enforcement officers;

(5) The environmental information of the project is not disclosed in time or the content is untrue or inaccurate, but rectification is made as required within 5 working days from the date of inspection (excluding frauds of contents to be disclosed);

(6) Loss of self-monitoring data is limited to less than 10% (except for toxic and hazardous pollutants as well as dioxins under special monitoring as required);

(7) An enterprise, public institution or other producer or business operator fails to fill in the required pollutant discharge registration form but completes it within 5 working days from the date of on-site inspection by law enforcement officers;

(8) The entity submits the implementation report of the pollutant discharge permit within 10 working days of the prescribed time limit;

(9) The entity transfers solid waste out of a province, autonomous region or municipality for storage or treatment without approval, or for recycling without reporting to relevant administrations for record, but applies within five working days and meets the conditions of acceptance provided that the amount of solid waste is not more than 1 ton;

(10) For an entity engaged in such operation activities as the production, sale, use, collecting, recycling or disposal of ozone-depleting substances (ODS) including hydrochlorofluorocarbons (HCFCs), it completes the record-filing within 5 working days from the date of on-site inspection by law enforcement officers;

(11) The entity uses unregistered non-road mobile machinery in Beijing, but completes the information coding registration within 10 working days from the date of on-site inspection by law enforcement officers;

(12) The entity that has formulated response plans for environmental emergencies pursuant to relevant regulations fails to submit the plans to relevant administrations for filing or to disclose relevant information of environmental accidents in accordance with the regulations, but rectification is made within 5 working days from the date of inspection.

(13) The pollutant-discharging entity that has actually discharged pollutants before the implementation of the Regulation on the Administration of Pollutant Discharge Permits on March 1, 2021 fails to apply for a discharge permit before the date of on-site inspection by law enforcement officers, but applies for the permit within 1 month from the date of inspection.

(14) The entity fails to conduct comparison monitoring using online monitoring equipment but rectification is made within 1 month;

(15) The entity has committed other minor violations corrected in a timely manner without harmful consequences.

2. Administrative penalty may not be imposed if the entity commits the following violations for the first time (i.e. no record of the same violation against the entity concerned in the administrative penalty and administrative inspection systems at the municipal and district levels, and the entity concerned confirms it as the first violation), and the harmful consequences are minor and corrected in time:

(1) Where the entity excessively discharges water pollutants (excluding chromaticity) or air pollutants (excluding foul emissions and emissions from motor vehicles and non-road mobile machinery) except for the Category-I pollutants, toxic and hazardous substances, radioactive substances, heavy metals or persistent organic pollutants, only one pollutant exceeds the emission standard by less than 10%, and rectification is made within 10 working days; the pH value exceeds the standard by less than ±0.5, and rectification is made within 10 working days; for gas stations, the gas-to-liquid ratio exceeds the standard by less than ±0.05, and rectification is made within 3 working days;

(2) The entity does not set up identification marks of hazardous waste as required but rectification is made within 5 working days; or the hazardous waste is not stored in a standard manner but its quantity is less than 0.1 tons during the on-site inspection and rectification is made within 2 working days;

(3) Where an industrial enterprise fails to store material piles in a sealed space, install a tight cover not lower than the height of the piles or take effective covering measures to prevent and control dust pollution, provided that the total size of the piles is less than 10 cubic meters, the stockpiling time is no longer than 3 days and rectification is made on the spot;

(4) Where an auto repair service piles undamaged waste lead-acid batteries of less than 1 ton without authorization and rectification is made within 5 working days;

(5) Where the entity has committed, for the first time, other violations with minor harmful consequences and rectification is made in a timely manner.

3. If the entity concerned has evidence sufficient to prove that there is no subjective fault, no administrative penalty shall be imposed.Other provisions in laws and administrative regulations shall prevail if available.

Where no administrative penalty is imposed on an entity for its illegal act, the entity shall be required by the administrative organ to sign a letter of commitment for guidance and education purposes.

III. Statement of Standards for the Exercise of Discretion in Administrative Penalty

A statement of standards for the exercise of discretion in administrative penalties (see annex for details) for similar common environmental violations such as violations of the construction project management system, water pollutant management system, air pollutant management system, radioactive pollution prevention and control system, solid (hazardous) waste pollution prevention and control system, and pollutant discharge permit system has been formulated in accordance with the types and ranges of administrative penalties set by relevant ecological and environmental protection regulations and based on the EIA result of the construction project, the nature and emission status of pollutants, the impact on the environment and other violation circumstances.

IV. Rules for Discretion  for Consecutive Daily Penalties

In accordance with the provisions under Article 59 of the Environmental Protection Law of the People's Republic of China, for an enterprise, public institution or other producer or business operator that is fined due to illegal discharge of pollutants and ordered to make correction refuses to make such correction, the administrative organ that makes the punishment decision pursuant to the law may impose the fine thereon consecutively on a daily basis from the second day of the date of ordered correction.

The fine prescribed in the preceding paragraph shall be enforced pursuant to the provisions of relevant laws and regulations regarding the determination of fines based on the operating cost of pollution prevention and control facilities, direct loss caused by violations or illegal gains of violations, etc.

Local regulations may, based on actual needs of ecological and environmental protection, increase the types of violations to be subject to the consecutive daily fine as stipulated in the first paragraph.

In accordance with the provisions under Article 123 of the Law on the Prevention of Air Pollution of People's Republic of China, if an enterprise, public institution or other producer or business operator that is fined due to any of the following acts and is ordered to make correction refuses to make such correction, the administrative organ that makes the punishment decision pursuant to the law may impose the fine thereon consecutively on a daily basis from the second day of the date of ordered correction.

1. Discharging air pollutants without obtaining a pollutant discharge permit in accordance with law;

2. Discharging air pollutants in excess of air pollutant emission standards or in excess of the total emission control quota of major air pollutants;

3. Discharging air pollutants by evading regulation;

4. Failing to take effective measures to prevent dust pollution during the construction process or storage of dust-generating materials.

In accordance with the provisions under Article 5 of the Measures on Consecutive Daily Penalties for Competent Environmental Protection Administrations, for a pollutant-discharging entity that is fined due to any of the following acts and is ordered to make correction refuses to make such correction, the ecological and environmental administration that makes the punishment decision pursuant to the law may impose the fine thereon consecutively on a daily basis.

1. Discharging pollutants in excess of national or local pollutant emission standards or in excess of the total emission control quota of major pollutants;

2. Discharging pollutants in ways intended to evade supervision, such as through underground pipelines, seepage well or seepage pit, through perfusion, by tampering with or fabricating monitoring data or through the improper operation of pollution prevention and control facilities;

3. Discharging pollutants prohibited by laws and regulations;

4. Illegally dumping hazardous waste;

5. Other illegal pollutant discharges prescribed by laws and regulations.

If the competent ecology and environment administration finds, upon examination, that a pollutant-discharging entity has discharged pollutants in violation of the law, it shall conduct an investigation and collect evidence, and make a decision on the administrative penalty in accordance with law.

The decision to impose a consecutive daily penalty shall be made after an administrative penalty is imposed as prescribed in the preceding paragraph.

Special circumstances:

Consecutive daily penalties may not be imposed on acts of discharging pollutants in excess of pollutant emission standards in any of the following circumstances:

1. For a project that is related to the people's livelihood and cannot be ordered to suspend or restrict production, it discharges pollutants in excess of pollutant emission standards again during the correction period;

2. The total number of the types of excessive pollutants is reduced by 50% and above compared to the previous data, and an excessive pollutant sees a 50% and above reduction in the excess compared with the previous data, or any new excessive pollutant is not more than 50% higher than the standard;

3. The previously monitored excessive pollutants have decreased to meet the standards , and any new excessive pollutant is not more than 50% higher than the standard;

4. Any new excessive pollutant is not more than 10% higher than the standard.

During the retest by the ecology and environment departments, the factors being monitored shall cover all the factors of the last test.

V. Provisions on Applicability

1. The case investigation and handling personnel of ecology and environment law-enforcement departments shall clearly state the basis of discretion when presenting their preliminary handling opinions or proposed handling opinions in the "Form of Cases Transferred for Review after Completion of Investigation" and "Form of Cases Submitted for Approval".

2. This statement lists the discretion in penalties for common environmental violations in Beijing. Environmental violations not included in the statement shall be subject to discretion based on the comparison with similar cases in established discretion statements.

3. For extremely serious environmental violations, the decision may be made through collective discussions such as work meetings chaired by the director-general to raise the penalty categories within the scope of laws and regulations and the range prescribed in this statement.

4. Where the administrative penalty decisions are confirmed as illegal or revoked after administrative reconsideration or administrative litigation due to the failure of relevant personnel to comply with the standards herein stated, the personnel shall be held responsible pursuant to relevant provisions.

Annex: Administrative Penalty Discretion Standards for Ecological Environment (Omitted)