Environmental Protection Series No. 5: Countermeasures to Environmental Administrative Punishment m88 bonus Hearing Strategies

With the visit of the Central Government’s Environmental Compliance Inspection Committee (“Inspection Committee”) to Shanghai, Fujian, Hainan, Chongqing, Gansu, Qinghai m88 bonus two other central enterprises from July 10 to 15 this year, the environmental protection bureau (“EPB”) has launched the second round of the “Environmental Protection Storm”. As of September 5 this year, the Inspection Committee has ordered 8,507 enterprises to take corrective actions, investigated 2,942 enterprises m88 bonus imposed a total penalty amount of around RMB 189 million. Following the large penalty amounts, the number of corporate hearings m88 bonus appeals hm88 bonusled by the EPB has significantly increased. In this context, we will briefly introduce the key risks m88 bonus issues in dealing with environmental administrative cases from a corporate perspective.

I. Preparation – Enterprises should revisit the EPB’s past inspection results m88 bonus correction orders

In the context of the second round of the “Environmental Protection Storm”, the EPB investigates environmental violations in a stricter way m88 bonus imposes large penalties in light of enterprises’ past environmental issues. Therefore, in addition to daily environmental compliance, enterprises should specifically revisit the correction suggestions m88 bonus requirements raised by the EPB during on-site investigations, m88 bonus preserve in writing the correction statements m88 bonus correspondence with the EPB, in order to mitigate the risk of the correction being deemed a “superficial correction”, a “pretend correction” or a “perfunctory correction” m88 bonus therefore be penalized or be otherwise administratively punished. Enterprises should also be aware of m88 bonus actively deal with internal personnel disputes m88 bonus environmental claims from neighboring regions, in order to address m88 bonus eliminate potential risks in connection with any potential complaints or claims.

II. Learning from Experience – Enterprises should take prompt countermeasures to m88 bonus proposed penalty notifications (including m88 bonus hearing notifications)

As our last article “Environmental Protection Series 4 – Challenges m88 bonus Countermeasures regarding Environmental Compliance Inspections” discussed, enterprises should submit hearing application m88 bonus appeal letters in accordance with the relevant procedural m88 bonus timeline requirements. Different approaches m88 bonus countermeasures undertaken by enterprises to the penalty notifications may result in different penalties. For instance, say Company A m88 bonus Company B have different practical experience. After receiving the proposed penalty notification, Company A takes an omission approach without applying for a hearing or submitting an appeal letter. On the contrary, Company B pays strict attention when it receives the proposed penalty notification m88 bonus immediately applies for a hearing. The legal representative of Company B also makes an appointment with the EPB in the upcoming days m88 bonus presents various facts m88 bonus arguments, which are documented by the EPB in the appeal record. However, in this appeal record, the inexperienced legal representative discloses facts that are not completely accurate.

On the other hm88 bonus, let’s say Company A misses the opportunity of a hearing m88 bonus appeal by taking an omission, which would be deemed as a waste of a remedy opportunity from a legal perspective, despite the fact that Company A may still defend itself in an administrative review with superior EPBs or bring the dispute to the courts; in terms of Company B, the misrepresentation of Company B brings about unnecessary complications to its defense in the hearing. Therefore, it is advisable for enterprises that once they become aware of an administrative case, they should consider engaging professional environmental lawyers to discuss countermeasures m88 bonus strategies as well as prepare the appeal letter, participate in the hearing, taking into account their past experience, the likely penalty amount m88 bonus the difficulties of the case.

Besides the above proposed penalty m88 bonus/or hearing notifications, enterprises should also pay attention to the “Decision regarding the Correction Order of Violation Acts” issued by the EPB together with the notifications. In the event that the Decision specifies a time limit for correcting the violating acts but enterprises fail to correct such acts, daily accumulative penalties may be triggered m88 bonus may lead to a large fine. Given this, if there are acts by enterprises which violate laws, enterprises should prepare for the appeal m88 bonus hearing, m88 bonus, cease or correct the suspected violation acts immediately after receiving the Decision m88 bonus report the written correction statement to the EPB.

III. Attending m88 bonus Hearing by m88 bonus EPB – Key points for enterprises to participate in m88 bonus hearing procedures

Enterprises may usually appoint one or two representatives to participate in the hearing m88 bonus expression on behalf of enterprises, while other participants in the hearing are not allowed to make any statements. According to our practical experience, a suggested representative combination would consist of a senior officer of the enterprise (who is familiar with the operation of the enterprise) m88 bonus an environmental lawyer. The senior officer m88 bonus lawyer would focus on the statement of facts m88 bonus the application of laws respectively. Prior to the hearing, enterprises should determine the defense strategy of the hearing, i.e. to determine the combination m88 bonus tradeoff between questioning the facts, challenging the law applications, m88 bonus apply for a non-imposition, exemption or reduction of penalties. The key point for the hearing is to make statements strictly following the defense strategy, m88 bonus answer unexpected questions by investigators m88 bonus moderators of the hearing in accordance with the principles of accuracy, truthfulness, relevance m88 bonus conciseness, in order to achieve an outcome of non-imposition of penalties (or exemption or reduction of penalties) on a reasonable basis. If enterprises m88 bonus their environmental lawyers fully cooperate, it is not uncommon that they would finally achieve an outcome of non-imposition of penalties or a significant reduction in the penalty amount.

IV. Casting an anchor – Enterprises should improve their environmental compliance awareness m88 bonus risk control ability

Even if enterprises have achieved positive results of avoiding penalties or an exemption for or reduction of penalties, it does not mean that enterprises are able to rest easy. Enterprises are advised to conduct regular self-inspections (including engaging professional third-party environmental consultants or environmental lawyers where necessary) to identify compliance risks. For instance, enterprises should verify that their environmental compliance policy m88 bonus management guidance of operations are comprehensive, that such compliance policies m88 bonus management guidance are effectively implemented, that their senior officers m88 bonus employees maintain environmental compliance awareness, m88 bonus that they have established a comprehensive reaction mechanism against the EPB’s environmental investigations. In addition, it is also suggested that enterprises introduce regular environmental compliance trainings for their senior officers m88 bonus employees.

V. Conclusion m88 bonus further suggestions

In summary, under the background of the “Pollution Control Battles” m88 bonus the strengthening of environmental administrative investigations, enterprises should actively self-inspect from an environmental compliance perspective to identify m88 bonus timely deal with any potential compliance risk identified. They should determine if they need support from professional environmental lawyers as soon as possible, m88 bonus protect their legal rights m88 bonus interests through proper procedures m88 bonus effective defense. In the long run, enterprises should be able to successfully survive future inspection rounds of the “Environmental Protection Storm”, as long as they pay close attention to their environmental compliance m88 bonus improve their compliance management ability.