On the cancellation of the regulation on the elimination of violations of the Department of Ecology
No. 6001-24-00-6ap/2796 dated April 03, 2025
Plaintiff: LLP "V" (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)
The subject of the dispute: the cancellation of the regulation on the elimination of violations dated September 28, 2022
Review of the defendant's cassation complaint PLOT:
Based on a statement from a resident of the city of X. On August 16, 2022, the Department initiated an unscheduled inspection of LLP "B" in accordance with subparagraph 3) paragraph 3 of Article 144 of the PC.
The inspection, conducted from September 1 to September 28, 2022 (with an extension of the deadline), revealed violations of environmental legislation, which became the basis for drawing up an act and sending an order to eliminate violations.
The order concerned the storage of waste outside specialized sites, the lack of an environmental permit and the negative impact on the environment. As a justification, the Department indicated that slurries and cakes are industrial waste and require a permit to be released into the environment. The Partnership's complaint to the Environmental Regulation Committee dated November 29, 2022, was dismissed.
Judicial acts:
1st instance: the claim was denied.
Appeal: the decision of the court of first instance remains unchanged.
Cassation: judicial acts of local courts have been annulled with the referral of the case for a new judicial review to the court of appeal.
Subsequently, the appeal ruling satisfied the claim.
The order to eliminate violations dated September 28, 2022 has been canceled.
Conclusions: according to paragraph 2 of Article 39 of the Environmental Code of the Republic of Kazakhstan (hereinafter - EC), the legislator refers only permissible discharges and emissions to emission standards. Waste is not mentioned in this category.
Paragraph 1 of Article 317 of the EC defines waste as any substances, materials or objects formed during production, performance of work, provision of services or in the process of consumption (including goods that have lost their consumer properties), which their owner explicitly recognizes as waste or must send for disposal or restoration due to the requirements the law or intends to subject or subject to removal or restoration operations.
That is, the EC defines waste as any substances, materials or objects formed as a result of production processes, works, services or consumption, which the owner explicitly recognizes as waste or is obliged to send for disposal or restoration by virtue of the law.
Paragraph 1 of Article 357 of the EC provides that the processing of solid minerals includes mechanical, physical, biological, thermal or chemical processes or combinations thereof applied to solid minerals in order to extract useful components from them, including by resizing (crushing, crushing), classification (sorting), separation and leaching, enrichment, and recycling of previously disposed mining waste, but does not include melting, thermal processing processes (except limestone roasting) and metallurgical processes.
The above means that the EC provides for the possibility of recycling previously disposed mining waste. This makes it possible to effectively use such waste in further production processes.
Meanwhile, it has been reliably established that the sludge and cakes formed during the processing plant's activities are not waste, but belong to the mineral raw materials used in the production process. This is confirmed by the technological regulations of LLP "V", the expert opinion dated December 19, 2022 and the environmental study of the Chamber of Environmental Auditors from
September 22, 2023. Slurries and cakes are used to stabilize the quality of the extracted ore and are processed as part of the source ore, which excludes their classification as waste.
In addition, the Department committed procedural violations. The inspection report and the order were signed by only one of the seven inspectors, which contradicts the requirements of the legislation. Also, the hearing procedure provided for in article 73 of the CPC was not carried out, which deprived the Partnership of the right to express its position and eliminate violations on its own. The Department did not conduct an expert examination to confirm the status of the waste, and the soil test report dated September 15, 2022 did not prove that the sludge and cakes are waste.
These procedural violations themselves are independent grounds for declaring the contested order invalid.
Consequently, the conclusion of the court of appeal on the satisfaction of the claim corresponds to the factual circumstances of the administrative case.
Given the absence of new arguments in the cassation appeal, the judicial board considered that there were no grounds for reviewing the contested judicial act.
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