20 march 2009

Ecological Inspection of subsoil users, offences and responsibility: questions of practice

We would like to mention three above-stated aspects.

Practically each company carrying out subsoil use operations, periodically collides with ecological inspection. Therefore it is necessary for all entrepreneurs to know the legislations requirements of carrying out of inspection and measures of reaction to their results.

It will allow them to choose the most useful tactics: first of all, before the inspection not to admit fulfillment of the most widespread offences (due to supervising bodies are usually aimed at their revealing); secondly, to resist to infringements of the rights and to create all conditions that subsequently it will be possible to challenge illegal actions of inspectors and to protect itself from unreasonable application of the legal responsibility and other measures of compulsory character.
   
    1. Ecological inspections

First of all, we would like to note, that the best tactic in any case is prevention of offences, especially which in short terms on the eve of forthcoming inspection is impossible to eliminate. To such offences, in particular concern realization of emissions in an environment without the permission, this attracts usage on the company civil charges for damage to an environment, and also imposing of the administrative penalty. Whilst, reception of the ecological permission takes a lot of time: according to item 3 of article 74 of Ecological code of RК, the application for delivery of the permission for emission is considered within four months. Besides among the documents applied on the application, the code (items 2 and 3 of article 72) names the conclusion of the state ecological inspection on projects of specifications of emission. The development of these projects can take long time besides the state ecological inspection can proceed on 3 months.

Therefore the companies often failed to meet the extended deadline and applications for delivery of permissions for emissions submit less than 4 months prior to the termination of validity of the old permission. And as busy departments of ecology give out permissions ahead of schedule very seldom, the companies are compelled to operate some time without permissions, for what they subsequently are subject both to administrative, and to civil responsibility.

    2. Types of Offences

During ecological inspections it become visible the absence of a plan of measures on preservation of the environment which is usually qualified on item 1 of article 240 of Code of RК On administrative offences (CAO RK) as infringement of ecological requirements. Development of such plan is obligatory for reception of permissions to the emissions which are carried out on objects 1, 2 and 3 categories (article 72 of Ecological code of RК). The Plan of measures on preservation of the environment is a subject to the coordination with the body which is giving out the permission to emission then it becomes an integral part of the permission (see the form of the permission to emission in an environment approved by the Decree of Minister of preservation of the environment of RК dated March, 30, 2007 №94-п).

Absence of the specified plan is qualified under article 240 of CAO RK, and attracts imposing the penalty on officials of the companies-subsoil users at a rate of up to 20 monthly calculated index, and on the companies at a rate of damage to an environment (from that follows, that the penalty under given article on legal entity is imposed when the offence has entailed causing damage to an environment). Thus as follows from item 2 of article 28 CAO RK, imposing of the penalty on the company does not relieve from the responsibility the guilty official.

In many cases the company does not know about wrongful character of the behavior - sometimes until the moment of revealing of an offence during inspection. And one of the reasons of such lack of information becomes frequent inconsistency and separation of the ecological requirements fixed in various normative legal acts, normative and technical documents.

So, according to article 5 of Law of RК dated 13.12.05 “On obligatory ecological insurance”, the legal responsibility of individuals and (or) the legal entities who are carrying out ecologically dangerous kinds of activity is a subject to obligatory ecological insurance. Further in this article specified that the list of ecologically dangerous kinds of activities is established by the Government. However by item 2 of article 107 of Ecological code of RК it is established that ecologically dangerous kinds of activity are defined by the current Code and the Government of Republic Kazakhstan. And if in the List of ecologically dangerous kinds of activity, that approved by governmental Decree from June, 27, 2007, names far not all operations on subsoil use (for example, investigation of minerals is not specified) on sense of item 1 of article 220 of the Ecological code, to ecologically dangerous kinds of activities concern operations on subsoil use in a whole. Therefore the companies which carry on exploration and have not concluded contracts on obligatory ecological insurance (and also their officials), can be involved in the administrative responsibility on item 2 of article 175 of CAO RK. And the penalty imposed under this article on officials, can reach up to 100 monthly calculated index.
  
    3. The responsibility

It is necessary to note, that for ecological offences the wide range of the legal responsibility is applied: from administrative and civil to criminal.

So, article 277 of Criminal code of RК provides the responsibility for infringement of ecological requirements at use of natural resources, operation of objects of the industry and in a number of other cases. Subjects of a crime the persons responsible for observance of these requirements, but not provided their performance admit. The responsibility comes in those cases if infringement of ecological requirements has entailed essential environmental contamination, causing of damage to person’s health, mass destruction of an animal or flora and other heavy consequences. Thus the permission of given article provides punishment in the form of imprisonment till five years with deprivation of the right to have certain posts or to be engaged in the certain activity till three years or without those.

However implication of the criminal liability is possible only after verdict of court, and only in the event that bodies of preliminary investigation will prove presence of structure of a crime in actions accused.

The administrative charge is due in cases when in actions of the offender there is a structure of an administrative offence and there is no structure of penal act.

Causing the damage to an environment is the basis of applying to subsoil user the civil liability under article 917 of Civil code of RК. Usually it occurs in cases of realization of emissions without the permission or to excess of the limits specified in the permission, pollution of soil or reservoirs of mineral oil, emergency damages of dangerous cargoes at their transportation.

Besides in legislation of RК other measures which is direct to the legal responsibility are stipulated also are not carried, but punishment as a matter of fact are characterized.

So, Code of RК “On taxes and other obligatory payments in the budget” stipulates payments for emissions in an environment, and if emissions are carried out without the permission or over the limits established by the permission the payment for them increases in 10 times. And payment in the budget of payments for emission in the 10-fold size, does not release subsoil user neither from civil liability nor from the administrative responsibility for unauthorized or above permitted standard emission.

According to item 2 of article 77 of Ecological code of RК, action of the permission to emissions in an environment can be suspended by the body which has given out it (Ministry of preservation of the environment or its territorial body) for the term of three months for infringement natural users the conditions of natural use specified in the permission, ecological requirements and the norms established by the ecological legislation of Republic Kazakhstan. In cases of termination  of action of the permission natural user is compelled or to continue realization of emission without the permission and to bear for it administrative and civil liability and also to execute the tax obligation in the 10-fold size, or to suspend emission, and operation of the corresponding process equipment that leads to decrease in the income and is created with risk of infringement of obligations to the third parties. According to subitem 2 of item 3 of article 77 Ecological codes of RК, in cases of non elimination when infringements on which action of the permission has been suspended, this permission can be cancelled. However for cancellation of the permission preliminary stay of its action is not obligatory, since according to subitem 1 of item 3 of article 77 of the Ecological code, the permission can be cancelled for regular (more than 3 times during validity of the permission) infringements of conditions of natural use, norms of the ecological legislation of Republic Kazakhstan.

At last, infringements of ecological requirements at carrying out subsoil use operations can lead to stay of these operations or to cancellation of the contract on subsoil use.
       
    4. Protection of the subsoil use rights during the ecological control and application of the legal responsibility.

Now we shall point to protection by the companies of the rights against wrongful actions of inspectors which can be accomplished both during inspection and after its end.

Practice shows, that one of the most widespread offences of the natural users rights is illegal definition of the sum of the damage, caused to an environment and revealed during inspection. Calculation of the sum of damage to an environment which carries the name of an economic estimation of damage, is carried out according to Rules of an economic estimation of damage to an environment, approved by governmental decree of RК dated 27.06.07 (further – Rules).

The ecological code provides direct and indirect methods of an estimation of damage, but the indirect method is most often applied. It consists that the sum of damage is defined depending on actual volume of the emission made in an environment without the ecological permission or over limits, established in the permission. This volume is multiplied by the tenfold size of the rate of a payment for emission and on two raising factors - rate ecological danger and factor of ecological risk (see appendixes 1 and 2 to Rules).

Carrying out of an economic estimation is often accompanied by disputes on its legitimacy. And in overwhelming majority of cases these disputes are conducted concerning correctness of calculation of actual volume of emissions. According to Rules, the actual volume of emissions is defined by results of tool measuring, or settlement by according to approved in the order established by the legislation a technique of definition of specifications of emission in an environment (item 8 of Rules). And consequently it is necessary for each company to know the legislative requirements shown both to carrying out of tool measuring, and to the order of definition of volumes of emission settlement.

As if to definition of volumes of emission settlement Rules send to a technique of definition of specifications of emission in an environment. However this sending, in our opinion is wrongful.

The matter is that the Technique of definition of specifications of emission in an environment, approved by the Decree of Minister of preservation of the environment of Republic Kazakhstan dated May, 21, 2007 №158-п, includes only rules of updating of volumes of emissions, dumps or accommodations of waste so that their receipt in an environment did not lead to excess of specifications of maximum permissible concentration of polluting substances in atmospheric air, a reservoir. However this technique does not establish rules of calculation of actual emission which are formed during those or other technological processes. Such rules are established in set of other methodical documents, and in practice if there is no opportunity to make tool measuring, they are used. Therefore to the Companies which are carrying out emission in an environment, it is necessary thoroughly the nobility, both existing requirements to tool measuring, and techniques on which the volumes of emission formed during concrete technological processes pay off. It allows checking up correctness of definition of the sum of damage as a whole.

Another most often article put by inspectors into practice 243 of CAO RK says: “Excess of specifications of emission in an environment, established in the ecological permission, or absence of the ecological permission if these actions have no attributes of penal act entails imposing the penalty on officials, individual businessmen, the legal entities, a small subjects or average business, at a rate from twenty to fifty monthly calculated indexes, on the legal entities, being subjects of large business, - at a rate of one thousand percent of the rate of a payment for emission in an environment for the exceeded volume of emission.”

This permission, in contradiction to many other things, is absolutely certain, i.e. it does not include the least and greatest possible size of the penalty, and defines it unequivocally: in the form of the sum estimated by precisely established rule. Hence, at purpose of the penalty the inspector should adhere strictly to the rule of definition of the size of this sum fixed in article 243 of CAO, that is the size of the penalty is equal to one thousand percent of the rate of a payment for emission in an environment for the exceeded volume of emission. It means that the sum of the penalty is equal to the rate of a payment for a concrete kind of the emission, increased on one thousand percent and on actual volume of issue of the given kind. By the Decision of Maslikhat of corresponding area the rates established of a payment for the certain kinds of emission. In cases of realization of several kinds of emission the sum of the penalty by each kind is a subject to an establishment, then the received results develop, therefore there is a total sum of the penalty.
 
Meanwhile, practice shows, that both ecological inspectors, and judges of specialized administrative courts in each separate region differently apply same article of CAO, differently define the order of calculation of the penalty. Lawyers of GRATA law firm proved in court and state bodies of Public Prosecutors, that at calculation of the penalty stipulated by the permission of article 243 of CAO, it is necessary to proceed only from three parameters: the rate of a payment for emission in an environment, the exceeded volume of emission and one thousand percent of the rate of a payment for emission, no more that.

Our legal position was supported also by Committee of ecological regulation and the control of the Ministry of preservation of the environment over the missive in which it has specified, that the size of the administrative penalty for fulfillment of the administrative offence stipulated by article 243 of CAO, for subjects of large business makes one thousand percent of the rate of a payment for emission in an environment for the exceeded volume of emission.

Besides attraction of the legal entity to the administrative responsibility under article 243 of CAO, there is also a risk of attraction to the responsibility official persons of the company. In this case the inspector bears two decisions on art.243 of CAO concerning the legal person and concerning the official. Attraction to the administrative responsibility and the legal person and the official one decision is impossible.

We pay your attention that the moment of delivery of a copy of the decision to the persons involved in the administrative responsibility, has especially great value as since this moment 10-day's term for submission of the complaint in a higher body or in court is estimated. Practice shows, that the companies-subsoil users, in view of many objective and subjective reasons, pass those 10 days during which the appeal of the decision of the ecological inspector is possible. As a result, after 10 days from the moment of its delivery to the offender, the decision enters validity, and the mullions-strong penalties imposed by the inspector, are a subject to obligatory execution and compulsory collecting from the company-subsoil user.

That similar situations did not arise, it is necessary to be vigilant both during inspection and after its termination. It is important also to not be afraid to go to court behind protection of the broken right. In practice subsoil users and their representatives, in which GRATA law firm successfully defended legitimate rights in judicial session therefore decisions about imposing administrative penalties were cancelled, and manufacture on affairs about administrative offences stopped, including behind absence of structure of an administrative offence.

Best Regards,

Leyla Makhmetova
Head of Environmental Law Department

Tel.: +7 (727) 2 445-777
Fax: +7 (727) 2 445-776
Mob.: +7 (701) 221-90-16
lmakhmetova@gratanet.com

Assel Bekturganova
Lawyer

Tel.: +7 (727) 2 445-777
Fax: +7 (727) 2 445-776
Mob.: +7 (701) 757-14-19
abekturganova@gratanet.com