Should illegal noise emissions be punished on a daily basis?

Should illegal noise emissions be subject to continuous daily penalties? Changzhou City in Jiangsu Province has initiated continuous daily penalties against the companies involved, while Guangdong Province has explicitly stated that continuous daily penalties should not apply. Do these two drastically different approaches comply with relevant laws and regulations? Can illegal noise emissions be subject to continuous daily penalties? To address these questions, reporters interviewed relevant legal experts.

Local Opinions on "Different Judgments for Similar Cases"

The answer in Changzhou, Jiangsu Province, is yes, if illegal noise emissions are subject to continuous daily penalties.

During the investigation, law enforcement officers discovered that the noise primarily originated from the operation of the exhaust gas treatment facilities' fans and cooling towers in the extrusion workshop. Monitoring revealed that daytime noise levels at the factory boundary exceeded the standard. Enforcement officers immediately issued a decision ordering the company to cease and rectify the excessive industrial noise emissions.

However, the factory failed to rectify the situation after receiving the penalty decision. The report stated that subsequent inspections by law enforcement officers revealed that daytime noise levels at the same factory boundary still exceeded the standards. In response to the factory's "failure to correct its mistake," the Changzhou Municipal Bureau of Ecology and Environment's Economic Development Zone Branch immediately initiated a daily continuous penalty procedure. Subsequently, the factory's management accelerated rectification efforts and quickly achieved compliance.

On the interactive communication section of the official website of the Guangdong Provincial Department of Ecology and Environment, at the end of last year, a netizen inquired about whether to apply the daily penalty if the noise test results exceeded the standard and the retest results still exceeded the standard.

The official response from the Guangdong Provincial Department of Ecology and Environment stated that the "Noise Pollution Prevention and Control Law" has a clear definition of noise pollution: Noise pollution as referred to in this law means the phenomenon of generating noise that exceeds the noise emission standards or fails to take prevention and control measures in accordance with the law, and that interferes with the normal life, work and study of others.

In addition, the official response also emphasized the provisions of the Environmental Protection Law regarding daily continuous penalties: Article 59, Paragraph 1 stipulates that if an enterprise, institution or other producer or operator illegally discharges pollutants, is fined, ordered to rectify the situation, and refuses to do so, the administrative agency that made the penalty decision may, from the day following the date of the order to rectify, impose daily continuous penalties based on the original penalty amount.

Based on the text, noise pollution is a phenomenon, while the pollutants emitted by the targets of daily continuous penalties are... In contrast, the official response from the Guangdong Provincial Department of Ecology and Environment concluded that: it is clear that noise pollution is a phenomenon, not a pollutant, and therefore daily continuous penalties should not apply.

Accumulated impact is not a necessary condition for daily penalty calculation.

Literal interpretation is an important method of legal interpretation, but Feng Jia, a professor at the School of Civil, Commercial and Economic Law of Gansu University of Political Science and Law, believes that the Guangdong Provincial Department of Ecology and Environment's response mechanically applies the law without respecting the original legislative intent, which may lead to errors in the application of the law.

Feng Jia explained that before 2014, many companies preferred to accept environmental penalties rather than actively address their pollution problems. This was because, under the laws at the time, relevant departments could only impose a one-time fine for illegal discharges, meaning the cost of violating the law was often lower than the illegal profits gained from continued pollution.

Subsequently, the Environmental Protection Law was revised, and the daily continuous penalty system was introduced into my country's environmental legal system. The purpose was to increase the cost of environmental violations, deter enterprises that illegally discharge pollutants, and encourage them to actively correct their illegal discharge behavior. "From the original legislative intent, the daily continuous penalty mainly targets the characteristics of continuous discharge and continuous illegal profit-making in illegal discharge behavior, regardless of whether the discharged substance is a substance or a phenomenon," said Feng Jia.

Furthermore, Feng Jia believes that the use of the term "pollutant" in the provisions of the Environmental Protection Law regarding daily continuous penalties is influenced by legislative language habits: "In environmental science, environmental pollution mainly takes two forms, including material pollution and energy pollution. However, in legislation, there is no strict distinction, and the term 'pollutant' is generally used uniformly."

In past environmental cases where daily continuous penalties were applied, air pollution, water pollution, and soil pollution cases were the most common. Continuous pollution causes cumulative damage to the natural environment, easily leading the public to believe that daily continuous penalties require a cumulative impact. However, Lu Qingbin, director of the Environmental Compliance Center at Guangdong Yueqilan Law Firm, told reporters that this impression is actually a misconception.

“Generally speaking, the characteristic of continuous or persistent behavior is a necessary condition for applying daily continuous penalties, but the characteristic of cumulative impact is not. Although noise has the characteristics of immediacy and instantaneity, if noise is continuously emitted illegally, considering its harmfulness, it can also be subject to daily continuous penalties,” said Lu Qingbin.

The existence of relevant local regulations does not affect the penalty.

In recent years, the overall quality of my country's acoustic environment has improved, but local noise complaints and reports remain high. According to data from the "China Noise Pollution Prevention and Control Report (2023)," in 2022, cities at the prefecture level and above across the country received approximately 4.503 million noise complaints and reports from various channels and departments. Among these, complaints and reports about social noise were the most numerous, followed by construction noise.

Last year, the enforcement team of the Huangpu District Ecological Environment Bureau of Shanghai filed a case against the noise pollution caused by the air conditioning equipment of Liyuan Building. After the incident, the company involved failed to make effective rectifications, and the Huangpu District Ecological Environment Bureau immediately initiated a daily continuous penalty procedure and imposed a penalty of RMB 144,000.

Lu Qingbin explained that, in terms of nature, construction noise, transportation noise, social noise and industrial noise are no different. All of them must comply with environmental laws and regulations and management systems, and can be subject to daily penalties. Therefore, the penalty imposed by the Huangpu District Ecological Environment Bureau of Shanghai is justified.

In fact, Article 59, Paragraph 3 of the Environmental Protection Law stipulates that local regulations may, based on the actual needs of environmental protection, add the types of illegal acts subject to daily continuous penalties as specified in Paragraph 1. Currently, Ningbo, Shenzhen, and other places have also clarified the relevant circumstances for applying daily continuous penalties to illegal noise emissions in their local legislation.

However, Feng Jia told reporters that the legal basis for applying daily continuous penalties to noise emissions is Article 59, Paragraph 1 of the Environmental Protection Law, not Paragraph 3. Therefore, regardless of local regulations, it does not affect the application of daily continuous penalties to illegal noise emissions.

An administrative judgment issued by the Beijing Fourth Intermediate People's Court in 2020 also supports this view. In this case, Hebei Zhongkai Company illegally emitted noise and refused to rectify the situation. The Jizhou District Ecological Environment Bureau of Tianjin issued a "Decision on Daily Continuous Penalty" against it. Because Tianjin's local regulations at the time did not stipulate the application of daily continuous penalties for illegal noise emissions, Hebei Zhongkai Company filed an administrative lawsuit.

The Beijing Fourth Intermediate People's Court held that even if local regulations did not expand the types of illegal acts to which daily continuous penalties apply, it did not affect the inclusion of environmental noise pollution as a type of violation subject to such penalties, and the issuance of the "Decision on Daily Continuous Penalties" was legally justified.

Lu Qingbin cautioned that while this wouldn't affect penalties, local legislation is crucial for the standardization and normalization of law enforcement. He suggested that local governments should promptly legislate on the application of continuous penalties for illegal noise emissions, revise and improve relevant local regulations, and further refine implementation standards and procedures.

Article source: China Environment APP