On challenging the order to eliminate violations of environmental legislation
No. 6001-24-00-6ap/1524 dated January 23, 2025
Plaintiff: LLP "P" (hereinafter referred to as the Partnership)
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" (hereinafter referred to as the Department)
Subject of dispute: on challenging paragraph 3 of the regulation on the elimination of violations of environmental legislation dated June 5, 2023 (hereinafter referred to as the regulation)
Review of the plaintiff's cassation appeal. PLOT:
Based on the act on the appointment of an audit dated May 22, 2023, the Department appointed an unscheduled audit of the Partnership's activities.
The legal basis for the appointment of an unscheduled inspection is specified in paragraph 4) of paragraph 5 of Article 144 of the Business Code of the Republic of Kazakhstan, that is, the instruction of the prosecutor's office on specific facts of causing or threatening harm to life, human health, the environment and the legitimate interests of individuals and legal entities.
In fact, the reason for the appointment of an unscheduled inspection was the submission of the regional Prosecutor's Office dated May 4, 2023, addressed to the head of the Department on the elimination of violations of the rule of law. The regional Prosecutor's Office suggested that the Department conduct an inspection of the activities of subsurface users who do not have permits for emissions into the environment, and allowed the release of pollutants into the environment in excess of the established limits.
The water test Protocol dated June 1, 2023 conducted studies of water samples taken from wastewater discharged by the inspection subject to filtration fields.
According to this protocol, exceedances of the MPD were recorded for all the monitored indicators.
On June 5, 2023, an act on the results of the audit was issued and an order was issued to eliminate the identified violations, which were sent to the subject of the audit.
According to the order dated June 5, 2023, the plaintiff is ordered to:
1) install wastewater metering devices for wastewater discharges no later than June 15, 2023; 2) obtain a state environmental assessment report on the maximum permissible discharge project by August 30, 2023; 3) obtain a permit for emissions into the environment, immediately establish the cause and take measures to prevent discharges into the environment. Wednesday without an environmental permit, due until August 30, 2023.
On August 8, 2023, the plaintiff filed a complaint against the order with the Russian State University
"Committee for Environmental Regulation and Control of the Ministry of Ecology, Geology, and Natural Resources of the Republic of Kazakhstan" in a pre-trial appeal.
The plaintiff's complaint was reviewed by the committee and a response was sent on August 31, 2023, refusing to cancel the act on the results of the inspection and the order, after which, within the prescribed one-month period, the plaintiff filed an administrative lawsuit with the court.
Judicial acts:
1st instance: the claim was denied.
Appeal: the decision of the court of first instance remains unchanged.
Cassation: the judicial acts of the local courts in this case are upheld.
Conclusions: the courts have established that the contested order prescribes the Partnership:
install metering devices for wastewater discharge no later than June 15, 2023;
to receive the conclusion of the state environmental expertise on the maximum permissible discharge project by August 30, 2023;
to obtain a permit for emissions into the environment, immediately establish the cause and take measures to prevent discharges into the environment without an environmental permit, the deadline is August 30, 2023.
The dispute between the subject of the inspection and the authorized body arose only in terms of the detected amount of phosphate 13.8 mg/dm3, and therefore challenged paragraph 3 of the regulation.
The local courts, rejecting the claim, indicated that:
There are no violations during the wastewater sampling procedure during the unscheduled inspection.;
The partnership has not provided evidence of a violation of the requirements for sampling, the act of selection was signed by the plaintiff's representative, and no comments on packaging or sealing were presented.
According to the test report dated June 1, 2023, there were recorded exceedances of MPD in all tested parameters, including phosphates by 13.8 mg/dm3.
The plaintiff did not dispute the excess of the MPD in all verifiable indicators, except for phosphate.
In accordance with Article 152 of the Entrepreneurial Code of the Republic of Kazakhstan (hereinafter referred to as the PC), based on the results of the audit, an official of the control and supervision body draws up an act on the results of the audit and an order to eliminate the violations identified, in cases of their detection.
There have been no gross violations of the requirements of the PC (Article 156 of the PC), in case of which the verification is declared invalid.
The fourth part of Article 155 of the CPC stipulates that the court refuses to satisfy the claim if, upon its consideration, it finds that the contested action (inaction) has been committed, the decision was made in accordance with the competence and legislation of the Republic of Kazakhstan.
In the context of the above, the judicial board concluded that the contested administrative act (order) adopted by the Department meets the requirements of legality and validity established for the administrative act by Article 79 of the CPC.
In the context of the above, it follows that the conclusions of the local courts on the denial of the claim are legitimate and justified.
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