Compensation for damage for violation of environmental legislation
Civil cases concerning environmental protection for damages for violations of environmental legislation.
- recovery of damage caused to the environment by lawsuits filed by authorized bodies and prosecutors as a result of excessive emissions into the environment and special use of natural resources without permits.
Special attention is paid to the practical application of regulatory legal acts regulating the procedure for economic assessment of damage caused to the environment by direct and indirect methods.;
- failure to comply with the established procedure for ensuring public participation in decision-making on environmental aspects of business projects;
- appealing against actions (omissions) of state bodies The institution of compensation for environmental damage is one of the central ones in environmental law.
In recent years, it has become increasingly important due to the need to ensure the sustainable development of society, prevent and eliminate the consequences of negative environmental impacts.
Thus, the growth of production in the main types of economic activity in 2014 was accompanied by an increase in emissions of pollutants into the atmosphere from stationary sources in manufacturing industries.
Kazakhstan has a well-developed mining and processing industry, and in recent years the growth rates of these industries have been increasing.
Large industrial facilities are being built and put into operation, which leads to increased air pollution and environmental degradation in Kazakhstan as a whole. Over the years, more than twenty billion tons of waste have accumulated in the republic, about a third of which are toxic.
The main part of this waste is the result of the mining and mining processing industry, ferrous metallurgy, petrochemistry, and the production of building materials. Despite the fact that large companies and the government are developing programs to combat air pollution, the environment in Kazakhstan leaves much to be desired.
A big problem is the utilization of associated and natural gases in the production of hydrocarbons. When burning associated gas on flares, nitrogen oxides, sulfur dioxide, and soot are released into the atmosphere. The most harmful industries are lead–zinc in the Ust-Kamenogorsk region, lead-phosphate in Shymkent, the phosphorus industry in Taraz, and chrome enterprises in Aktobe. The atmospheric air is most polluted over the East Kazakhstan, Karaganda, Pavlodar regions, and Atyrau region.
In the cities of Kazakhstan, the main contribution to air pollution is made by road transport. The poor quality of the fuel used and the lack of filters for cleaning exhaust gases, the poor condition of the rolling stock of car farms, the increase in the number of cars in cities, leads to the fact that a huge amount of carbon monoxide, lead, etc. is released into the atmosphere.
The level of atmospheric air pollution by harmful emissions has been increased in fifteen cities of the republic. Among these cities are Zyryanovsk, Aktau, Temirtau, Taraz, Petropavlovsk, Almaty.
The high level of air pollution in cities is a consequence of outdated production technologies, inefficient sewage treatment plants, and the poor quality of the fuel used. The main pollutants are dust, sulfur dioxide, nitrogen dioxide, hydrocarbons, phenol, lead, hydrogen sulfide, hydrogen chloride, ammonia, etc. Each of these substances has its own negative effect on health. Dust, for example, causes diseases of the respiratory tract, liver, and blood.
The most dusty cities in Kazakhstan are Aktau, Atyrau, Zhezkazgan, Semipalatinsk, Ust-Kamenogorsk. High carbon monoxide content is observed in cities such as Almaty, Aktobe, Karaganda, Kostanay, Petropavlovsk, Pavlodar, Semipalatinsk and some others.
Currently, the factor of economic efficiency of any activity aimed at improving the environment and rationalizing the use of natural resources is becoming increasingly important, for which new waste-free, low-waste, resource-saving technologies, modern sewage treatment plants, etc. are being introduced.
However, as judicial practice shows, our legislation lacks a flexible mechanism for paying for pollution, preferential taxation of activities related to environmental protection, that is, the so-called "green" taxes that exist in developed European countries, support for entrepreneurial and innovative activities aimed at protecting the environment, and other mechanisms that encourage entrepreneurs to reduce the amount of waste generated, emissions and discharges into the environment and the desire to involve production waste in reuse.
The incentive measures provided for in the Environmental Code of the Republic of Kazakhstan remain unclaimed due to the lack of necessary norms in legislation establishing specific ways of their implementation.
Grounds for the return of claims.
The return of the statement of claim is provided for in Articles 15a of the CPC RK.
The judge returns the statement of claim if:
1) the plaintiff has not complied with the procedure for preliminary pre-trial dispute resolution established by the contract or the legislation of the Republic of Kazakhstan for this category of cases and the possibility of applying this procedure has not been lost;
2) the case is beyond the jurisdiction of this court;
3) the application was submitted by an incompetent person;
4) the application is signed by a person who does not have the authority to sign it.;
5) in the proceedings of the same or another court or arbitration or arbitration court, there is a case on a dispute between the same parties, on the same subject and on the same grounds;
5-1) an agreement has been concluded between the parties in accordance with the law on the transfer of this dispute to arbitration or an arbitration court, unless otherwise provided by legislative acts of the Republic of Kazakhstan.;
6) the body authorized to manage communal property has applied to the court for recognition of the right of communal ownership of an immovable thing before the expiration of one year from the date of registration of this thing by the body carrying out state registration of the right to immovable property, with the exception of the case specified in the second part of paragraph 3 of Article 242 of the Civil Code of the Republic of Kazakhstan;
7) this was stated by the plaintiff.
On the return of the application, the judge issues a reasoned ruling in which he indicates which court the applicant should apply to if the case is beyond the jurisdiction of this court, or how to eliminate the circumstances preventing the initiation of the case. The ruling on the return of the statement of claim must be issued within five days from the date of its receipt by the court and handed over or sent to the applicant with all the documents attached to the application.
The return of the application does not prevent the plaintiff from filing a lawsuit against the same defendant again, on the same subject and on the same grounds, if they eliminate the violation.
A private complaint or protest may be filed against the judge's decision to return the application. In general, the practice of returning claims is correct, and no violations of the law have been identified.
In particular, by the definition of the specialized interdistrict economic court of the Pavlodar region, the statement of claim of the NGO "World of Ecology" to the Pavlodar regional branch of the Kazakhavtodor RSE for the recognition of public hearings, the protocol of public hearings dated December 05, 2014, the program of environmental protection measures for 2015-2018 and the permit for emission into the environment dated March 11, 2015 illegal, returned.
The reason for the return of the statement of claim was the fact that the judge's ruling of June 05, 2015, left the statement without motion, since the statement of claim did not contain information about the defendant.
In the submitted application, the defendant indicated the Pavlodar regional branch of the Kazakhavtodor RSE, whereas paragraph 1 of Article 48 of the CPC of the Republic of Kazakhstan stipulates that the defendants are legal entities.
In this regard, this statement of claim, according to paragraph 2 of Article 155 of the Civil Procedure Code of the Republic of Kazakhstan, is considered not filed and, by the judge's ruling, is subject to return to the applicant with all the documents attached to it.
Also, by the ruling of the Specialized Interdistrict Economic Court for the Zhambyl region dated August 25, 2015, the claim of the Russian State Institution "Department of Ecology for the Zhambyl region of the Committee for Environmental Regulation, Control and State Inspection in the Oil and Gas Complex of the Ministry of Energy of the Republic of Kazakhstan was returned to Pak S.I. a statement of claim has been returned to Pak S.I. about the termination of activities in the NEIA of the Russian State Institution "Department of Ecology for the Zhambyl region of the Committee for Environmental Regulation, Control and State Inspection in the Oil and Gas Complex of the Ministry of Energy of the Republic of Kazakhstan" due to the fact that from the representative of the plaintiff – the head of the Department M.Konisbekov received an application for the return of the statement of claim.
Jurisdiction
Article 30 of the Civil Procedure Code of the Republic of Kazakhstan stipulates that specialized inter-district economic courts consider civil cases on property and non-property disputes, the parties to which are citizens engaged in business activities without forming a legal entity, legal entities, corporate disputes, as well as civil cases on the restructuring of financial organizations and organizations belonging to a banking conglomerate in as a parent organization and non-financial organizations, in the following cases:, provided for by the laws of the Republic of Kazakhstan.
A claim in these civil cases, with the exception of cases on the restructuring of financial organizations and organizations that are part of a banking conglomerate as a parent organization and are not financial organizations, may be filed if the plaintiff complies with the pre-trial dispute settlement procedure provided for in the contract or legislation of the Republic of Kazakhstan.
A claim in these civil cases, with the exception of cases on the restructuring of financial organizations and organizations that are part of a banking conglomerate as a parent organization and are not financial organizations, may be filed if the plaintiff complies with the pre-trial dispute settlement procedure provided for in the contract or legislation of the Republic of Kazakhstan.
(Subject to the amendments introduced by the Law of the Republic of Kazakhstan dated November 17, 2014 "On Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan on the further administration of justice and reduction of bureaucratic procedures"). According to part 3 of Article 32 of the Civil Procedure Code of the Republic of Kazakhstan, a claim arising from the activities of a branch or representative office of a legal entity may also be filed at the location of the branch or representative office.
On the basis of these norms, cases of this category are subject to the jurisdiction of specialized inter-district economic courts. By the ruling of the Yessil District Court of Astana dated January 19, 2015, the claim of the RSU "Department of Ecology for the city of Astana of the Committee for Environmental Regulation, Control and State Inspection in the Oil and Gas Complex of the Ministry of Energy of the Republic of Kazakhstan" was returned to Abdirov A.D., Beisembaev B.M. on compensation for damages, the court indicated that the plaintiff indicated the location addresses of the defendants – Astana, 71 (111) Zhenis ave., sq.48, and ul.Tlendieva, 15, building 4, 97 block. These addresses belong to the territory of the Saryarkinsky district of Astana. Since the defendants do not reside in the jurisdiction of the court, the court returned the statement of claim with a recommendation to apply to the Saryarkinsky District Court of Astana at the place of residence of the defendants.
On the practice of civil cases being considered by courts in absentia
Cases of this category are considered according to the rules of claim proceedings provided for in Chapter 24 of the CPC.
Also, the courts, when resolving cases of this category, are guided by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated July 11, 2003 No. 5 "On judicial decision" and March 20, 2003 No. 2 "On the application by courts of certain norms of civil procedural legislation". The exhaustive grounds for considering the case in absentia are given in Article 260 of the CPC.
The quality of drafting procedural documents
A judicial act must have a clear structure, be stylistically and grammatically correct. Therefore, when making a decision, judges are obliged not only to comply with the requirements of procedural legislation on the legality, validity and reasonableness of a judicial act, but also to be responsible for the presentation and execution, since competent presentation and proper execution of procedural documents is an indicator of a judge's high professional culture, respect for participants in court proceedings and other persons.
Judicial acts of the courts of the Republic of Kazakhstan are subject to registration taking into account the provisions of the Code of Civil Procedure, as well as the regulatory decree of the Supreme Court of the Republic of Kazakhstan No. 5 dated July 11, 2003 "On Judicial Decision" (with amendments and additions made by regulatory resolutions of the Supreme Court of the Republic of Kazakhstan No. 6 dated June 29, 2006 and No. 2 dated January 12, 2009). Judicial acts are produced by computer method.
When summarizing the 2014 period, it was pointed out that judges, when drafting judicial acts, did not always comply with the legal requirements for the content of the decision, and there were cases of careless drafting, sometimes with obvious spelling and grammatical errors, which reduced the legal value of the procedural document.
According to Part 3 of Article 221 of the CPC, the introductory part of the decision specifies: the date and place of the decision; the name of the court that issued the decision; the composition of the court; the secretary of the court session; the parties; other persons participating in the case and representatives; the subject of the dispute or the stated claim. In the introductory part of the decision, based on the established judicial practice, it is necessary to indicate information about documents certifying the powers of representatives (power of attorney, warrant) with the date of issue.
But at the same time, the judges of Atyrau region in the operative part of the decision do not indicate the bank details, accounts and where the awarded amounts of damages should be transferred. This category of cases is particularly difficult, judges check and examine the evidence presented by the parties, and they are given a legal assessment in the reasoning part of the decision.
In general, the decisions comply with the requirements of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan No. 5 dated July 11, 2003 "On Judicial decision".
Subjects of environmental pollution, environmental protection facilities
The plaintiffs in cases of compensation for damage caused to the environment are territorial divisions of state bodies performing environmental protection functions, business entities, as well as public associations and citizens.
Any legal and natural persons, state and non-state, national and foreign, can act as subjects of pollution (harm-makers).
The sources of pollution are objects from which harmful substances are discharged or otherwise released into the environment. The methods of environmental pollution are:
1) business activities carried out in violation of established rules and regulations;
2) other illegal activities not related to environmental management;
3) accidents and catastrophes;
4) importation of environmentally hazardous goods and substances into the country;
The object of an environmental offense is both natural resources (soil, subsoil, water, forests and other vegetation, wildlife) and natural objects that are not related to natural resources (specially protected natural territories, atmospheric air, animals and plants listed in the Red Book, etc.). In addition, objects of environmental offenses This may include climate and other natural ecological systems, management relations in the field of environmental management, property rights and other rights to natural resources, etc.
During the generalization, it was found that mostly lawsuits are brought by state bodies represented by territorial departments of ecology.
The Russian State Institution "Department of Ecology for Atyrau region of the Committee for Environmental Regulation, Control and State Inspection in the Oil and Gas Complex of the Ministry of Energy of the Republic of Kazakhstan" filed a lawsuit against Tengizchevroil LLP to recover the amount of environmental damage in the amount of 34,131,297,879 tenge.
The claim was dismissed by the decision of the specialized inter-district Economic Court of Atyrau region dated April 01, 2015. As can be seen from the case file, the plaintiff filed a lawsuit with the court, arguing that due to the issuance of a new permit dated June 10, 2010, the previously issued permit dated December 01, 2009 will be cancelled.
The permit dated June 10, 2010 provides for limits on emissions of pollutants in volumes not exceeding 12,708,91042 tons/year, for the disposal (storage) of production and consumption waste in volumes not exceeding 7,882,482 tons/year, and limits on the discharge of pollutants have not been issued. This environmental permit is valid until December 31, 2010.
Also, from January 01 to January 15, 2011, emissions were carried out without an environmental permit. The court found that Tengizchevroil LLP carried out emissions into the environment on the basis of a permit dated December 01, 2009, issued by the Committee for Environmental Regulation and Control of the Ministry of Environmental Protection of the Republic of Kazakhstan with a validity period from December 01, 2009 to December 31, 2011.
At the same time, due to production needs (increased oil production, inevitable combustion, commissioning at installation 800, operation of RPN T1-T8 tanks, commissioning of new and upgraded equipment), on June 10, 2010, the Partnership received a permit for emissions into the environment on the basis of a permit issued by the Environmental Committee. regulation and control by the Ministry of Environmental Protection of the Republic of Kazakhstan with a validity period from June 10, 2010 to December 31, 2010 for an additional amount of emissions.
Also on April 15, 2011, the Partnership received a permit for emissions into the environment on the basis of a permit issued by the Committee for Environmental Regulation and Control of the Ministry of Environmental Protection of the Republic of Kazakhstan with a validity period from April 15, 2011 to December 31, 2011. The court considers the plaintiff's argument that, in connection with the issuance of a new permit, the previously issued permit is automatically revoked to be unfounded on the basis of the following.
Subparagraph 4) of paragraph 3 of Article 77 of the EC, which was in force at the time of receipt on December 01, 2009 and June 10, 2010, provides that the authorities that issued the permit for emissions into the environment may revoke it after registration and issuance of a new permit for emissions into the environment. The Law of the Republic of Kazakhstan dated January 10, 2011 amended paragraphs 2 and 3 of Article 77 of the EC. In paragraph 2, the words "may be suspended" were replaced by the word "suspended", in paragraph 3, the words "may cancel it" were replaced by the words "take measures provided for by the laws of the Republic of Kazakhstan to cancel it".
However, the court found that the authority that issued the permit for emissions into the environment had not issued a written notice of cancellation of the current permit. Thus, the authorized state body represented by the Committee for Environmental Regulation and Control, having granted Tengizchevroil LLP a permit exclusively for additional emissions in 2010, decided not to revoke the previously valid permit.
However, the court found that the authority that issued the permit for emissions into the environment had not issued a written notice of cancellation of the current permit. Thus, the authorized state body represented by the Committee for Environmental Regulation and Control, having granted Tengizchevroil LLP a permit exclusively for additional emissions in 2010, decided not to revoke the previously valid permit.
This fact is also confirmed by the act of a planned audit of the activities of Tengizchevroil LLP on compliance with the requirements of the environmental legislation of the Republic of Kazakhstan, conducted by the Department of Ecology of Atyrau region for the period from March 15, 2010 to January 05, 2011.
Based on the results of the audit, an act was drawn up on January 05, 2011. The inspection report states that in 2010 the company carried out environmental management in accordance with the following permits for emissions into the environment: the permit dated December 01, 2009 grants the right to discharge pollutants in volumes not exceeding 344.18 tons/year.
There are several permits for emissions into the environment for the disposal of production and consumption waste: a permit dated December 01, 2009, issued by the Committee for Environmental Regulation and Control with a validity period from December 01, 2009 to December 31, 2011, granting the right to dispose (store) production and consumption waste in volumes not exceeding 262,504,084 tons; A permit dated June 10, 2010, issued by the Committee for Environmental Regulation and Control with a validity period from June 10, 2010 to December 31, 2010, granting the right to dispose of (store) production and consumption waste in volumes not exceeding 7,882,482 tons.
The inspection report also states that the company carries out emissions into the environment on the basis of a permit for environmental management dated December 01, 2009, issued by the Committee for Environmental Regulation and Control of the Ministry of Environmental Protection of the Republic of Kazakhstan. The permit grants the right to emit pollutants in volumes not exceeding 56,588.7 tons/year in 2010 and 57,964.76 tons/year in 2011.
The Partnership also additionally received an environmental emission permit dated June 10, 2010, dated December 01, 2009, issued by the Committee for Environmental Regulation and Control of the Ministry of Environmental Protection of the Republic of Kazakhstan, with the right to emit pollutants into the environment in volumes not exceeding 12,708,910,042 tons/year in 2010. In addition, the Department of Ecology of Atyrau region conducted a scheduled audit of the activities of Tengizchevroil LLP in compliance with the environmental legislation of the Republic of Kazakhstan for the period from January 06, 2011 to November 18, 2011.
Based on the results of the audit, an act was drawn up on November 07, 2011.
The inspection report stated that in 2011 the company carried out environmental management in accordance with the following environmental emission regulations: permit dated December 01, 2009, grants the right to discharge pollutants in volumes not exceeding 7,033,3663 tons/year, permit dated April 15, 2011, grants the right to discharge pollutants in volumes, not exceeding 4,256,7552 tons/year. The above-mentioned verification acts have not been canceled by anyone and are valid.
Thus, during routine inspections, the Department of Ecology confirms that Tengizchevroil LLP has all the necessary permits for emissions in 2010 and 2011, thereby confirming the validity of obtaining additional permits to the main permit. An analysis of the state environmental assessment report dated March 19, 2010, issued permits dated December 01, 2009, and June 10, 2010 concluded that the permit dated June 10, 2010 was issued in addition to the main permit.
Current legislation does not prohibit the issuance of permits for additional amounts of emissions into the environment. Also, during the trial, the defendant filed an application for the application of the limitation period. The Department of Ecology of Atyrau region should have known about the violation of environmental legislation during the audit of the activities of Tengizchevroil LLP on compliance with the requirements of environmental legislation of the Republic of Kazakhstan, conducted on January 05, 2011 and November 07, 2011.
The court applied the limitation period. The decision was appealed to the Board of Appeal and cassation and remained unchanged. The State Institution "Department of Ecology for the Akmola region of the Committee for Environmental Regulation, Control and State Inspection in the Oil and Gas Complex of the Ministry of Energy of the Republic of Kazakhstan" (hereinafter referred to as the Department) filed a lawsuit against Gormolzavod LLP for damages in the amount of 4,160,407 tenge, stating the following.
In order to comply with the submission of the Prosecutor's Office of the Akmola region dated March 05, 2014, the Department conducted a desk check for compliance with environmental legislation in the activities of Gormolzavod LLP.
According to the results of the desk inspection by the Department, it was established that the company operated from January 01 to May 22, 2012 without obtaining a permit to emit into the environment. According to the submitted declaration, Gormolzavod LLP made payments for environmental emissions tenfold over the period of the 1st and 2nd quarters of 2012, in accordance with the procedure established by clause 3 of Article 492, clause 10 of Article 495 of the Tax Code.
The plaintiff also points out that according to paragraph 5 of Article 101 of the Environmental Code of the Republic of Kazakhstan, the fulfillment of tax obligations to pay for emissions into the environment does not exempt the nature user from compensation for damage caused to the environment. As a result of carrying out activities without a permit for emissions into the environment, Gormolzavod LLP caused environmental damage by releasing pollutants into the atmosphere.
According to the calculation of economic damage to the environment, damage was caused in the amount of 4,160,407 tenge. It follows from the case file that the permit for emission into the environment was obtained by the Gormolzavod partnership on May 22, 2012. The plaintiff, in accordance with the Resolution of the Government of the Republic of Kazakhstan "On approval of the Rules for establishing economic assessment of damage from environmental pollution" and Resolution of the Government of the Republic of Kazakhstan No. 24 dated January 26, 2010 "On Amendments and additions ..." calculated damage in the amount of 4,160,407 tenge, which is derived according to the formula specified in the said resolution.
The court has verified the calculations that are correct. The defendant's arguments regarding the Department's failure to comply with the one-month deadline for determining the assessment of economic damage do not affect the substance of the dispute, since the specified period is not preemptive.
By the decision of the specialized interdistrict economic court of Akmola region dated January 15, 2015, the claim was satisfied, Gormolzavod LLP was recovered to the state revenue in compensation for damage 4,160,407 tenge.
Emissions into the environment
Within the meaning of the sub-paragraphs 43), 44), 71), 89) paragraph 1 of Article 1 of the Environmental Code, a natural or legal person who uses natural resources and/or releases them into the environment is a nature user. Emissions into the environment are emissions, discharges of pollutants, the placement of production and consumption waste in the environment, harmful physical effects, the placement and storage of sulfur in the environment in an open form. Limits on emissions into the environment - the regulatory amount of emissions into the environment, is established by the authorized body for a certain period of time. An environmental permit is a document certifying the right of individuals and legal entities to carry out emissions into the environment.
In accordance with article 69 of the Environmental Code, nature users who carry out emissions into the environment are required to obtain a permit for emissions into the environment, with the exception of pollutants from mobile sources. A permit for emissions into the environment is issued to a nature user in accordance with his application in accordance with the procedure established by the Environmental Code. Natural resource users are required to comply with the conditions specified in the permit for emissions into the environment, and are responsible for their non-compliance in accordance with the laws of the Republic of Kazakhstan.
Currently, there is no unified approach in judicial practice to resolve cases related to claims for recovery of damage caused to the environment in connection with the implementation of excess emissions into the environment and special use of natural resources without permits.
In some cases, when resolving such disputes, the courts proceed from the fact that permits are issued for the right to carry out emissions, discharges of pollutants, disposal of production and consumption waste in the environment, harmful physical effects, placement and storage of sulfur in the environment in an open form (emission). Therefore, exceeding such emissions indicates harm to the environment. At the same time, information about excess emissions is confirmed by official statistical information from a special nature user and is not denied by him.
In other cases, the courts conclude that the establishment of facts of unauthorized use of natural resources without permits or excessive emissions into the environment is not sufficient to conclude that environmental damage has been caused, expert opinions on the infliction of such harm are necessary. For example, by the decision of the Specialized Interdistrict Economic Court of South Kazakhstan Region dated November 05, 2014, the claim of the RSU "Department of Ecology of South Kazakhstan Region" was partially satisfied. It was decided to collect from JSC "3-Energoortalyk" to the state revenue in the amount of 28,886,792 tenge. The rest of the claim was dismissed.
The court found that the plaintiff of the Russian State Institution "Department of Ecology of South Kazakhstan Region" (hereinafter referred to as the Department) appealed to the defendant JSC "3- Energoortalyk" for compensation of the amount of damage caused to the environment as a result of unauthorized release of pollutants into the atmosphere for the period from January 01 to February 02, 2014 for a total amount of 181,829 061 tenge.
The plaintiff motivated the claims by the fact that between May 05 and May 28, 2014, the Department conducted a scheduled inspection of compliance with the requirements of the environmental legislation of the Republic of Kazakhstan by the defendant JSC 3–Energoortalyk, as a result of which it was established that the enterprise did not have a permit for emissions into the environment for sources of pollutants into the atmosphere for the specified period.
According to the calculations of the Department's specialists, the environmental damage caused by the unauthorized release amounted to 181,829,061 tenge, which the plaintiff requested to recover from the defendant. Meanwhile, the decision of the Appellate Judicial Board for Civil and Administrative Cases of the South Kazakhstan Regional Court dated April 13, 2015 was amended by the decision of the Specialized Interdistrict Economic Court of South Kazakhstan Region dated November 05, 2014.:
The court's decision regarding the refusal to satisfy claims for recovery of the amount of damage caused to the environment should be reversed and a new decision should be adopted in this part. To recover from the defendant JSC 3-Energoortalyk in favor of the state the amount of damage caused to the environment as a result of unauthorized release of pollutants into the atmosphere without permits for emissions into the environment, for the period from January 01 to February 02, 2014, in the amount of 152,942,269 tenge, as well as a state duty in the amount of 4,558 268 tenge, a total of 157,530,537 tenge. The rest of the court's decision should remain unchanged.
The reason for changing the court's decision was the fact that the court of first instance made an unreasonable conclusion about the need to apply a direct method of economic damage assessment when making calculations, since an indirect method of economic damage assessment is used for cases of atmospheric air pollution, the direct method is not applicable in this case.
Thus, the board finds the court's conclusions in this part unjustified, which in fact led to an underestimation of the amount of damage caused to the environment as a result of the unauthorized release of pollutants into the atmosphere.
The board also considers the conclusions of the court of first instance that a direct calculation method should be applied, made in accordance with the Methodology, since according to section 1 "General information" of the Methodology, it is intended for approximate calculations of the amount of harmful substances released into the atmosphere by unorganized sources of industrial enterprises, while the amount of damage caused to the environment environment as a result of unauthorized release of pollutants into the atmosphere by the defendant, It was calculated by the plaintiff due to the lack of permission from JSC 3-Energoortalyk for emissions into the environment.
Taking into account the listed circumstances of the case, the board considers that the calculation of the economic assessment of damage made by the plaintiff is correct and is subject to application, respectively, the amount of damage is subject to compensation from the defendant in full, and the amount of damage recovered by the court of first instance is subject to additional assessment based on the calculation of the plaintiff, compiled using the indirect method.
Appeal against decisions and actions (inaction) of state bodies adopted (committed) in the field of environmental protection
Applications for the action (inaction) of a state body or a local government body are considered by the courts in accordance with Chapter 27 of the CPC, if the decision is made, the action (inaction) was committed in the resulting administrative and legal relations in the exercise of managerial functions.
A citizen and a legal entity have the right to challenge a decision, action (or omission) of a government agency or official directly in court. A preliminary appeal to higher authorities and organizations, to an official, is not a prerequisite for submitting an application to the court and its acceptance by the court for consideration and resolution on the merits (art. 278 of the CPC).
In accordance with Article 280 of the CPC, a citizen and a legal entity have the right to file an application with the court within three months from the day they became aware of the violation of their rights, freedoms and legally protected interests. Missing the three-month deadline for filing an application is not a reason for the court to refuse to accept the application. The reasons for missing the deadline are clarified at a court hearing when considering the application on its merits and may be one of the grounds for refusing to satisfy the application.
In accordance with paragraph two of Article 17 of the Law of the Republic of Kazakhstan "On Administrative Procedures" and part 1 of Article 280 of the CPC, the applicant has the right to appeal a decision, action (inaction) within three months from the day when the applicant became aware of the violation of his subjective rights, freedoms or legitimate interests. By virtue of paragraph 18 of the Normative Resolution of the Supreme Court dated December 24, 2010 No. 20 "On certain issues of the application by courts of the norms of Chapter 27 of the Civil Procedure Code of the Republic of Kazakhstan", missing without valid reasons the deadline for filing an application in accordance with part two of Article 280 of the CPC is an independent basis for the court of first instance to decide to dismiss the application.
In this regard, the courts should carefully check when an applicant has become aware of a violation of his subjective rights, freedoms or legitimate interests. It is equally important to find out whether the contested action (inaction) of a government agency or official has harmful effects on the environment at the time of consideration of the application, regardless of when it was adopted. We believe that the court cannot refuse to satisfy an application on the grounds of missing the deadline for filing an application in accordance with the second part of Article 280 of the CPC on formal grounds if violations and harmful consequences in the environment continue as a result of actions (omissions) of a person.
In this regard, it should be remembered that, by virtue of article 7 of the Environmental Code, land, subsoil, surface and groundwater, atmospheric air, forests and other vegetation, wildlife, the gene pool of living organisms, natural ecological systems, climate and the ozone layer of the Earth are subject to protection from destruction, degradation, damage, pollution and other harmful effects., and specially protected natural territories and objects of the state nature reserve fund are subject to special protection. For example, Nova Zinc LLP (hereinafter referred to as the Partnership) applied to the court with the above–mentioned application to the State Institution "Committee for Environmental Regulation and Control of the Ministry of Environmental Protection of the Republic of Kazakhstan" (hereinafter referred to as the Committee) on the recognition of the illegal refusal to issue a permit for emissions into the environment for the second half of 2013, and the obligation to issue a permit. By the decision of the specialized Inter-district Economic Court of Astana dated February 11, 2014, the applicant's claims were partially satisfied.
The Court found illegal the refusal of the Committee to issue a permit for emissions into the environment for the second half of 2013 dated September 18, 2013. The court ordered the defendant to eliminate the violation of the applicant's rights and legally protected interests. He refused to satisfy the applicant's claims to impose on the defendant the obligation to issue a permit for the second half of 2013 for emissions into the environment for maximum permissible emissions, maximum permissible discharges, enrichment tailings and overburden in accordance with the conclusion of the state environmental assessment.
By the resolution of the Appellate Judicial Board for Civil and Administrative Cases of the Astana City Court dated April 11, 2014, the said decision of the court of first instance was changed. Regarding the satisfaction of the application for declaring illegal the refusal of the Committee to issue a permit for emissions into the environment for the second half of 2013 dated September 18, 2013 and the obligation to eliminate the violation of the rights and legally protected interests of the Partnership was canceled, in this part a new decision was made to reject the application of the Partnership. The rest of the court's decision remains unchanged.
By the decision of the Cassation Judicial Board of the Astana City Court dated July 16, 2014, the decision of the Appellate Judicial Board for Civil and Administrative Cases of the Astana City Court dated April 11, 2014 remained unchanged.
By the resolution of the Supervisory Board of the Supreme Court of the Republic of Kazakhstan dated March 04, 2015, the resolution of the Appellate Judicial Board for Civil and Administrative Cases of the Astana City Court dated April 11, 2014, and the resolution of the Cassation Judicial Board of the Astana City Court dated July 16, 2014 on this case should be amended.
To cancel the judicial acts regarding the amendment of the decision of the specialized interdistrict Economic Court of Astana dated February 11, 2014, with the latter remaining in force. The grounds for changing the judicial acts of appeal and cassation were the fact that the Partnership operates on the basis of a contract for mining lead and zinc ores at the Akzhalskoye deposit in the Shetsky district of the Karaganda region dated July 27, 1998. According to the conclusion dated November 24, 2010, the Committee agreed on Draft Waste disposal Standards for the Partnership for the period 2011 - 2015.
This conclusion determines that the waste: overburden is formed as a result of extraction of polymetallic ore, during excavation of rock mass from a quarry. The overburden rocks are exported and stored at rock dumps forming a single complex; the tailings of enrichment are lead–zinc ore from the quarry, fed into the receiving hopper of the concentrator, where the crushing, ore separation, crushing and enrichment are carried out, followed by the extraction of lead and zinc concentrates.
The waste from the enrichment plant is the tailings of the enrichment, which are stored at the tailings dump. The overburden rock and enrichment tailings are classified as technogenic mineral formations (hereinafter referred to as TMOS). Annex 1 to the conclusion provides for limits on waste disposal until 2015, including on TMO. The latest environmental emission permit indicates that the Partnership was granted an environmental emission permit in the period from January 1, 2011 to July 8, 2013.
By letter dated September 2, 2013, the Partnership applied once again for an environmental emission permit for the 2nd half of 2013. By letter dated September 18, 2013, the Committee refused to issue a permit for emissions into the environment for the 2nd half of 2013, indicating the need to provide a contract for the processing of man-made mineral formations in accordance with Article 286 of the Environmental Code of the Republic of Kazakhstan (hereinafter referred to as the Code) or classify TMOS in accordance with the requirements of Chapter 42 of the Code. In satisfying the Partnership's application, the court of first instance concluded that the Committee's requirement that a subsurface use contract be concluded for tailings processing was unlawful, since the applicant did not recycle these wastes due to economic inexpediency.
Only in the case of extraction of other minerals from these TMO, the owner is obliged to conduct a state examination of the subsoil to place them on the state balance sheet and conclude a contract with the competent authority. By changing the decision of the court of first instance and rejecting the Partnership's application, the courts of appeal and cassation concluded that, by virtue of the requirements of Article 286 of the Code, as of the date of filing the application, the applicant had to submit a contract or classify these formations as waste, respectively, according to the degree of danger, what was not done to them. These conclusions of the courts of appeal and cassation instances do not correspond to the actual circumstances of the case and contradict the norms of substantive law.
In accordance with paragraph 3 of Article 12 of the Code, the exercise of the right of special nature use by nature users who emit emissions into the environment is allowed in the presence of environmental permits, with the exception of emissions from mobile sources.
According to paragraphs 1, 2 of Article 51 of the Code, the conclusion of the state environmental assessment is issued based on the results of its conduct. The state environmental assessment is mandatory and should precede the adoption of legal, organizational and economic decisions regarding the use of natural resources and the impact on the environment and public health. The implementation of the project is prohibited without a positive conclusion of the state environmental assessment.
The positive conclusion of the state environmental assessment contains conclusions on the admissibility and possibility of making a decision on the implementation of the environmental assessment object. In accordance with article 76 of the Code, permits for emissions into the environment are issued for a period until changes in the technologies used and environmental management conditions specified in the current permit, but not more than five years. By virtue of article 286 of the Code, industrial and consumer waste is classified into hazardous and non-hazardous according to the degree of danger.
This chapter does not apply to man-made mineral formations for which contracts have been concluded for the extraction of minerals from them, formed during the exploration, extraction and processing of minerals, the treatment of which is regulated by the legislation of the Republic of Kazakhstan on subsoil and subsoil use, as well as to surface effusive and intrusive sedimentary rocks of different ages (overburden rocks), radioactive waste.
The court of first instance correctly concluded that the conclusion of a contract for subsurface use is not required for the processing of tailings, since the tailings of enrichment, according to the conclusion of the state environmental assessment, belong to man-made mineral formations, and it is not required for the recycling of these TMO to extract the components provided for in the contract; the tailings of enrichment are the property of the Partnership and are not processed, no minerals other than those stipulated in the contract are extracted from them.
By virtue of the above, the Committee's refusal to issue a permit for emissions into the environment dated September 18, 2013 is illegal.
These significant violations committed by the courts of appeal and cassation instances led to an incorrect resolution of the dispute, which, in accordance with Part 3 of Article 387 of the CPC and paragraph 30 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated March 20, 2003 No. 2 "On the application by courts of certain norms of civil procedure legislation" is the basis for a supervisory review of the the legal force of judicial acts. Given that the case does not require the collection and additional verification of evidence, the circumstances of the dispute have been fully established, however, the courts of appeal and cassation instances made an error in evaluating evidence, interpreting and applying substantive law, the supervisory judicial board believes that the decisions of the courts of appeal and cassation instances should be annulled, while upholding the decision of the court of first instance.
Disputes related to the suspension and prohibition of the activities of nature users for violations of environmental protection legislation
According to subparagraph 7) of paragraph 1 of Article 117 of the Environmental Code, officials exercising state environmental control have the right to file lawsuits with the court for the restriction, suspension and prohibition of economic and other activities carried out in violation of the legislation of the Republic of Kazakhstan.
By virtue of paragraph 2 of Article 918 of the Civil Code, if the damage caused is a consequence of the operation of an enterprise, facility, or other industrial activity that continues to cause harm or threatens new harm, the court has the right to oblige the defendant, in addition to compensation for harm, to cease the relevant activity.
Thus, by a decision of the Specialized Interdistrict Economic Court of Kostanay region dated May 14, 2015, the court suspended the operation of 12 landfills located in the Auliekolsky district of Kostanay region: village of Chernigov, village of Kosagal, village named after K. Turgumbayev, village Kazanbasy, village Baganaly, village Sulukol, village Pervomaiskoe, village Koktal, village Moskalevskoye, village Timofeyevka, Dievka village, Novoselovka village, until the elimination of violations of environmental legislation.
The reason for the suspension was the fact that, according to the inspection report of the Department of Ecology of Kostanay Region and an unscheduled inspection by the environmental Prosecutor, Junior Adviser to Justice N.Kasymbekov, Specialized Environmental Prosecutor's Office of Kostanay region dated February 12, 2015, violations of environmental legislation were identified by Auliekol-Service LLP dated March 19, 2015. legislation, namely the lack of a permit for emissions into the environment at 12 landfills of solid household waste.
The case materials established that the company issued a Permit for emissions into the environment dated August 19, 2013, valid from August 19, 2013 to December 31, 2016, as of today, 15 settlement landfills are listed on the company's balance sheet, which are located on the territory of the Auliekolsky district. Of the 15 landfills, only 3 landfills have permission to emit into the environment. Auliekol, Novonezhinka, Oktyabrskoye villages, for the remaining 12 settlement polygons: Chernigov village, Kosagal village, K. Turgumbaev village, Kazanbasy village, Baganaly village, Sulukol village, Pervomaiske village. Koktal, Moskalevskoye village, Timofeyevka village, Dievka village, Novoselovka village, there is no permit for emissions into the environment.
However, the contract for the removal and disposal of solid household waste is concluded for all 15 landfills. At the hearing, it was reliably established that the defendant does not have a permit to emit solid household waste into the environment at 12 landfills. According to the certificate of Auliekol – Service LLP, 12 landfills were used to dispose of production and consumption waste at 12 landfills without a permit for emissions into the environment. The court session found that for the absence of a permit for emissions into the environment, the company was charged damage for unauthorized disposal of waste in the environment in the amount of 2,947,397 tenge.
When satisfying a claim for suspension of activity, the court must set a time limit in the decision during which the defendant is obliged to eliminate violations of the requirements of the law, and indicate the reasons for the establishment of this particular period of suspension.
At the same time, it is necessary to take into account the real possibility of the defendant to proceed with the elimination of the identified violations, the availability of funds and materials, the time during which the circumstances leading to the suspension of activities can be eliminated, while if a specific time limit is set, the court must indicate in the decision the reasons for the establishment of this particular period of suspension.
For example, the Department of Ecology in the Akmola region of the Committee for Environmental Regulation and Control of the Ministry of Environment and Water Resources of the Republic of Kazakhstan filed a lawsuit against the Arkalyk Interdistrict Road Maintenance Enterprise to suspend the operation of facilities.
It follows from the case file that on July 29, 2015, the state environmental inspector Untabaev O.M. conducted an unscheduled inspection of the Arkalyk Interdistrict Road Maintenance Enterprise. As a result of the verification of compliance with environmental legislation, it was established that the defendant operates a household stove located at the address: Amangeldinsky district, on the site of Amantogai village without a permit for emissions into the environment. Based on the results of the audit, a protocol on an administrative offense against a legal entity dated July 29, 2015 was drawn up.
The court considers it established that the defendant operated a household oven located at the address: Amangeldinsky district, on the site of Amantogai village, which is a violation of art.68 of the Environmental Code of the Republic of Kazakhstan. At the time of consideration of the case, the defendant had not submitted an environmental permit for emission into the environment.
Thus, assessing the evidence collected in the case, the court considers it necessary to satisfy the plaintiff's stated claims.
The recoverable amounts of compensation for environmental damage are transferred to the state budget.
According to paragraph 6 of Article 322 of the Environmental Code, the recoverable amounts of damage compensation are transferred to the state budget. In accordance with the Order of the Minister of Finance of the Republic of Kazakhstan dated April 23, 2010 No. 183 "On approval of the table of distribution of budget revenues between budget levels and the Cash control Account of the National Fund of the Republic of Kazakhstan", funds received from natural resource users on damage compensation claims, with the exception of income from organizations in the oil sector, as well as funds from the sale of confiscated implements hunting and fishing, illegally obtained products are subject to transfer to the republican budget.
At the same time, funds received from natural resource users on claims for damages by organizations in the oil sector are subject to transfer to the National Fund of the Republic of Kazakhstan. In accordance with paragraph 3 of Article 22 of the Budget Code of the Republic of Kazakhstan, organizations in the oil sector include legal entities engaged in the production and (or) sale of crude oil and gas condensate, as well as those who have concluded contracts for the exploration of crude oil and gas condensate.
The list of oil sector organizations for the next financial year is approved by December 20 of the current financial year jointly by the central authorized body for budget execution and the state body responsible for state regulation in the field of oil operations, conclusion and execution of contracts. In this regard, the courts should be guided by the above-mentioned norms when deciding which budget and according to which budget classification the amounts of monetary penalties for violations of legislation in the field of environmental protection are to be credited. Meanwhile, the study showed that the courts resolve this issue in different ways.
Thus, some courts, satisfying claims for damages, in the operative part of the decision indicate the recovery of the amount of damage to the state revenue and indicate the details of the tax authorities at the location of the emission source for recovery.
Other courts recover damages to the national budget. For example, such decisions were made in cases of claims of the State Enterprise "Sh" against Kaspiyzhyl su Arnasy (SMES of the Mangystau region), Some courts in decisions to recover damages to the state's income do not indicate the relevant details in the operative part of the decision. For example, such decisions were made on claims for damages by the Department of Ecology to Irgiz Tas-Kum LLP (Aktobe region), the Department of Ecology for Karaganda region to Bassel Groop LLS LLP, and on all claims by the Department of Ecology to Tengizchevroil (Atyrau region).
Regulatory framework
The main regulatory legal acts regulating disputes on environmental issues are: the Constitution of the Republic of Kazakhstan, the Environmental Code of the Republic of Kazakhstan dated January 09, 2007, the Civil Code of the Republic of Kazakhstan, the Land Code of the Republic of Kazakhstan, the Water Code of the Republic of Kazakhstan, the Law of the Republic of Kazakhstan "On Subsoil and Subsoil Use" dated June 24, 2010, the Law of the Republic of Kazakhstan "On Specially Protected Natural territories" dated July 07, 2006.
The courts also apply international treaties in the field of environmental protection, ratified by Kazakhstan, including the norms of the Convention on Access to Information, Public Participation in Decision–making and Access to Justice in Environmental Matters (hereinafter referred to as the Aarhus Convention), ratified by the Law of the Republic of Kazakhstan dated October 23, 2000.
Generally recognized environmental principles and directions of international cooperation are defined by the Stockholm Declaration on the Environment (1972), the World Charter of Nature (1982), the Declaration on Environment and Development (Rio de Janeiro, 1992), the "Agenda for the 21st Century" (Rio de Janeiro, 1992), the declarations of the Millennium Summit (New York, 2000), the World Summit on Sustainable Development (Johannesburg, 2002)[2] and other international acts. These acts have great international authority and are implemented both in international conventions and in the national law of many States, including the Republic of Kazakhstan (hereinafter referred to as the "ROK").
Kazakhstan is a member and an active participant in various international commissions and processes aimed at developing and implementing international agreements on environmental protection and sustainable development at the global and regional levels. Among them are the United Nations Commission on Sustainable Development; the Interstate Commission on Sustainable Development of Central Asian Countries; the regional Eurasian network of the World Council of Entrepreneurs for Sustainable Development; the Interstate Council for Hydrometeorology of the CIS; the processes "Environment for Europe" and "Environment and sustainable development for Asia". Cooperation is developing with the United Nations Development Program, the World Wildlife Fund (WWF) and other international organizations.
In total, it is estimated that over 60 international treaties of the Republic of Kazakhstan directly or indirectly affect the field of environmental protection (including issues of emissions into the environment, protection of the ozone layer from greenhouse gas emissions, prevention of pollution from ships, trade and transportation of hazardous chemicals, industrial safety at hazardous production facilities and prevention of accidents, transboundary impacts and others.)
The Code of the Republic of Kazakhstan dated January 9, 2007 No. 212-III "Environmental Code of the Republic of Kazakhstan" (hereinafter referred to as the "Environmental Code" or "EC") establishes the priority of international treaties ratified by the Republic of Kazakhstan over the provisions of the Code (paragraph 2 of art. 2 EC).
Regulatory acts were issued, such as: "On approval of the List of environmentally hazardous types of economic and other activities" (Order of the Minister of Energy of the Republic of Kazakhstan dated January 21, 2015 No. 27. Registered with the Ministry of Justice of the Republic of Kazakhstan on February 20, 2015 No. 10301); "On approval of qualification requirements for a licensed type of activity in the field of environmental protection environment and the list of documents confirming compliance with them" (Order of the Minister of Energy of the Republic of Kazakhstan dated January 14, 2015 No. 6. Registered with the Ministry of Justice of the Republic of Kazakhstan on February 26, 2015, No. 10333).
On Amendments and Additions to the Resolution of the Government of the Republic of Kazakhstan dated June 27, 2007 No. 535 "On Approval of the Rules for Economic Assessment of Damage from Environmental Pollution, Resolution of the Government of the Republic of Kazakhstan dated April 22, 2015 No. 252
In addition, the courts, when resolving cases of this category, are guided by the regulatory rulings of the Supreme Court of the Republic of Kazakhstan "On the practice of courts applying legislation on environmental protection" No. 16 dated December 22, 2000, "On certain issues of courts applying the norms of Chapter 27 of the Civil Procedure Code of the Republic of Kazakhstan" No. 20 dated December 24, 2010.
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