Invalidation of the results of preventive control and supervision of damage compensation
No. 6001-22-00-6ap/1935 (2) dated 05/16/2023
Plaintiff: K LLP
Respondent: Russian State Institution "Department of Ecology of the Committee for Environmental Regulation and Control of the Ministry of Ecology, Geology and Natural Resources of the Republic of Kazakhstan"
The subject of the dispute: on invalidation of the results of preventive control and supervision, invalidation and cancellation of paragraphs 6, 12 of the regulation of 10/27/2021; invalidation and cancellation of the regulations on compensation for damage No. 01-05-9/2432 and No. 01-05-9/243 of 11/22/2021
Review of the defendant's cassation complaint
PLOT:
According to the regional prosecutor's office, on the basis of the act on the appointment of an audit dated October 04, 2021, from October 7 to October 27, 2021, the Department conducted an unscheduled audit of the partnership's compliance with environmental legislation from November 1, 2018 to October 27, 2021.
The act on the appointment of an audit by the subject (object) of the audit indicates the location of the partnership, where it carries out its activities - it is a production base at the address: region, district, city, Industrial zone.
The defendant also checked the storage tank-evaporator located in site N.
Based on the results of the audit, an order was sent to the partnership on the elimination of violations dated 10/27/2021 (hereinafter referred to as the Order on the elimination of violations)without drawing up an act on the results of the inspection, as allowed by paragraph 1 of Article 152-1 of the PC based on the results of preventive control and supervision by visiting the subject (object) of control and supervision.
Paragraph 6 of this regulation states that since 2019, the partnership has been discharging wastewater into an evaporator pond without permission to release it into the environment. According to the certificate dated 10/25/2021, the total volume of wastewater discharge was: in 2019 - 10517 m3, in 2020 - 27,824 m3, in 2021 - 22098 m3. This volume of wastewater is generated by washing vats, fermenters, yeast and during disinfection (washing equipment). The assessment of the degree of risk is rough.
In paragraph 12 of the regulation on the elimination of violations, it is stated that the plaintiff is allowed to discharge wastewater without prior treatment into the reservoir reservoir cards (water test reports dated 10/18/2021).The risk assessment is significant.
Judicial acts:
1st instance: the claim is partially satisfied. The regulations of 11/22/2021 were declared illegal and cancelled:
No.01-05-9/2432 on compensation for damage for the discharge of pollutants into the environment without an emission permit for 2020 in the total amount of 44278 063 tenge,
No.01-05-9/2433 on compensation for economic damage for the discharge of sewage without a permit for emissions into the environment for 2019 and from January 1 to June 31, 2021 in the amount of 41,065,030 tenge.
The rest of the claim was denied.
Appeal: the decision remains unchanged.
Cassation: judicial acts have been changed. Regarding the satisfaction of the claim, the judicial acts were canceled, and the claim was returned in the specified part. The rest of the judicial acts remained in force.
Conclusions:
Regarding the rejection of the claim for the recognition of illegal and cancellation of paragraphs 6, 12 of the decree dated 10/27/2021, invalidation of the results of preventive control and supervision at the Pond storage evaporator facility, the judicial acts have not been appealed by the plaintiff.
Resolving the dispute and recognizing as illegal the orders for compensation of damage dated 11/22/2022, the local courts proceeded from the fact that the Environmental Code of the Republic of Kazakhstan dated 01/22/2021 (hereinafter - EC), in force at the time of the issuance of the contested administrative acts, unregulated the Department's right to issue orders for compensation of damage, which indicates that the defendant exceeded his powers.
The indicated conclusions of the local courts comply with the requirements of the EC, however, the board did not agree with the consideration of the declared claims by the courts on the merits for the following reasons.
Thus, the concept and features of an administrative act and the judicial jurisdiction of disputes are determined by the provisions of the APPC.
According to the second part of Article 102 of the APPC, the courts have jurisdiction in administrative proceedings over disputes arising from public law relations provided for in the APPC.
The subject of the claim is an act that denies implementation, restricts, terminates the rights of a participant in an administrative procedure or imposes certain duties on him, as well as otherwise worsens his situation.
The damages orders challenged by the plaintiff are not administrative acts in accordance with the first part of Article 4 of the CPC, adopted in public relations, and do not impose any obligations on the plaintiff. These regulations are of a claim-based nature, providing an opportunity for the nature user to voluntarily compensate for damage caused to the environment.
In accordance with paragraph 4 of Article 136 of the EC, the authorized body in the field of environmental protection applies to the court with claims for the elimination of environmental damage to individuals and legal entities that could be held liable in accordance with this article.
It follows from this rule that after the Department's powers are put into effect, they are implemented solely through filing a lawsuit in court for compensation for damage caused to the surrounding environment, during which the plaintiff has the right to provide arguments and evidence against the claims.
Local courts have essentially considered the claims for the appeal of orders for damages that are not subject to resolution in administrative proceedings, which entails the cancellation of judicial acts in the specified part and the return of the claim to its submitter on the basis of subparagraph 11) of the second part of Article 138 of the CPC.
Attention!
Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.
For more information, please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085.
Attorney at Law Almaty Lawyer Legal Services Legal Advice Civil Criminal Administrative Cases Disputes Protection Arbitration Law Firm Kazakhstan Law Office Court Cases
