On the recognition as illegal and cancellation of the act on the results of the inspection and regulations
No. 6001-23-00-6ap/499 dated 07/20/2023
Plaintiff: LLP "A"
Respondent: Russian State Institution "Department of Ecology of the region 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 the recognition as illegal and cancellation of the act on the results of the audit and the order No. 33 dated June 30, 2022 (hereinafter referred to as the act, the order).
Review of the defendant's cassation appeal.
PLOT: Based on the results of the preventive control of the Partnership for the period December 2, 2021 - December 24, 2021, the Department issued an order on the elimination of violations No. 36 on December 24, 2021.
7 violations of environmental legislation were identified, including the provision of false information on the qualitative and quantitative characteristics of emissions, pollutants and stationary sources (emissions of pollutants from grain dryers of the conveyor type "Mig 48", installed in the PO "im. Bykovsky", S. Afanasyevka, named after him. Petrova, S. Krivoshchekovo, as well as equipment for storage and preparation of liquid fertilizers are not indicated in the declaration of exposure).
According to this paragraph, it is prescribed to submit a declaration on the impact on the 139 environment, taking into account emissions from all actual sources of pollution, by March 24, 2022. On March 16, 2022, the LLP received an environmental impact statement for 2021 from the authorized body.
The control audit of the Department dated April 4, 2022, established that the previously identified violations on the part of the LLP had been eliminated, and an act on the results of the audit No. 11 was drawn up.
On June 15, 2022, the Department received a collective appeal from the villagers to verify: the legitimate activities of the LLP in terms of the production of liquid fertilizers, pesticides, herbicides on the territory of the MTM village; documents in the field of environmental protection; the use of these drugs. The applicants referred to the fact that the activities of the LLP pose a threat to the health of the villagers and the environment.
On the same day, the Department sent a notification to the LLP about an unscheduled inspection from June 17 to June 30, 2022 on the issue of compliance with the requirements of environmental legislation during transportation, storage and application of plant protection products, mineral fertilizers and other preparations used in the activity.
The act on the appointment of an audit of the LLP, located at the address: region, district, village, No. 33 dated June 16, 2022, was registered with the state institution "Management of the Committee on Legal Statistics and Special Accounts of the Prosecutor General's Office of the Republic of Kazakhstan region".
According to the results of the inspection, two violations were identified in paragraphs 24, 31 of the checklist, namely: - failure to comply with the requirements of the legislation of the Republic of Kazakhstan on mandatory state environmental expertise; - violation of environmental standards during storage of liquid fertilizers.
The department has drawn up an act and issued an order. The regulation in paragraph 1 states the prevention of the operation of facilities for the storage of liquid fertilizers without a positive conclusion of the state environmental assessment; in paragraph 2 - the prevention of the storage of liquid fertilizers in violation of the requirements of the Environmental Code of the Republic of Kazakhstan and the Technical Regulations "Requirements for the safety of fertilizers."
According to the inspection report dated June 30, 2022, soft tanks in the amount of three units were purchased by LLP for storing liquid fertilizers in the village on the basis of an agreement dated April 13, 2021 (Agrotank MR-NT 250U equipment, a soft tank with a volume of 250 m3 is designed for storing liquid fertilizers, the material is made of high-strength technical fabric based on 100 polyester, heat resistance from 30 to 70 C, service life of more than 10 years).
In June 2022, the LLP acquired nitrogen liquid fertilizers of the KAS-32 brand, filling NVA from LLP. An administrative offense report No. 23 dated June 30, 2022 was drawn up against the plaintiff under part 1 of Article 324 of the Code 140 of the Republic of Kazakhstan "On Administrative Offenses" for violating environmental requirements when storing liquid fertilizers. On July 5, 2022, the plaintiff filed an administrative lawsuit with the court, stating that the defendant had gone beyond the residents' appeal.
The LLP carries out only temporary storage of liquid fertilizers; 235 tons of 600 kg of liquid fertilizers were delivered to the facility in the village from June 20 to June 25, 2022, that is, their number at the same time did not exceed 40 tons. Based on the declaration, the LLP has 3 environmental impact categories. During the inspection, the inspector came to the erroneous conclusion that there were no pallets.
Judicial acts:
1st instance: the claim was denied.
Appeal: the decision of the court of first instance has been changed. Regarding the refusal to satisfy the claim of the Partnership for recognition as illegal and cancellation of paragraphs 2 of the act and the prescription, the decision was canceled with a new decision. Paragraphs 2 of the act and the regulations were declared illegal and repealed. Cassation: judicial acts have been changed.
Regarding the requirements to declare illegal and repeal paragraph 2 of the act, the judicial acts were canceled and the claim was returned.
Regarding the recognition of paragraph 2 of the order as illegal, the decision of the appellate instance was overturned, while the court decision remained in force.
The rest of the resolution remains in force.
Conclusions: Regarding the consideration of the merits of the claim on the illegality of the act on the results of the audit, the board comes to the following conclusion.
The act on the results of the audit challenged by the plaintiff is not an administrative act adopted in public relations, does not impose any obligations on the plaintiff; it is an interim act preceding the issuance of an order to eliminate violations. The Board concluded that the local courts had essentially considered the claim regarding the appeal of the act on the results of the audit, which could not be resolved in separate administrative proceedings, which entailed the cancellation of judicial acts in this 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.
Regarding the requirements for declaring paragraph 2 of the regulation illegal. In resolving the dispute and satisfying the claim in this part, the appellate instance, guided by the norms of articles 152 and 152-1 of the Business Code, proceeded from the fact that paragraph 2 of the regulation was not motivated, the act on the results of the audit did not describe the violations identified; there was no justification. The Board pointed out that the agricultural tanks intended for storing liquid fertilizers were empty at the time of the inspection, and the presence of pallets was not required at that time. The cassation Board did not agree with the above conclusions of the appellate instance, as they do not correspond to the case file and contradict the norms of substantive law.
According to paragraph 1 of Article 248 of the Environmental Code, when transporting, storing and applying fertilizers, 141 legal entities are required to comply with their rules of transportation, storage and application and to take measures to ensure the prevention of diseases and deaths of animals.
By virtue of paragraph 33 of the Technical Regulations "Requirements for the safety of fertilizers", approved by Order of the Minister of Agriculture of the Republic of Kazakhstan dated April 29, 2020 No. 143 (hereinafter referred to as the Technical Regulations), when storing containers with liquid fertilizers, technical measures and means are provided to localize the entire volume of the spilled product in the event of an emergency destruction of the container (moisture-proof rooms, waterproof pallets).
From the certificate of inspection results, the inspection report, and the Partnership are instructed not to allow the storage of liquid fertilizers in violation of the requirements of the Environmental Code and Technical Regulations.
Take measures to eliminate violations by July 11, 2022. The fact of storage of liquid fertilizers KAS-32 on the territory of the village in the tanks of agrotank MR-NT 205 during 2022 in the amount of 381 tons 600 kg is confirmed both by the explanations of the representative of the plaintiff T., and by photos and videos during the inspection.
Thus, from the explanatory notes of plaintiff T.'s representative dated June 22 and 27, 2022, it follows that the soft tanks are placed on a hard and flat surface, which are made of crushed stone, fine sand and cement. According to T.'s explanations in the protocol on administrative offenses dated June 30, 2022, agrotanks are manufactured at the factory, they cannot make any changes to the design.
There have been no spills or leaks during their use. At the same time, there is no evidence of the plaintiff's purchase, possession or use of waterproof pallets at the time of the inspection in the case file.
The photos of agrotank MR-NT 205 U tanks presented by the plaintiff using waterproof pallets are dated only on November 29, 2022, that is, 5 months after the inspection. Taking into account the mandatory requirements of the Technical Regulations, taking into account the classification of fertilizers CAS-32 as agrochemicals, and the presence of Maly Tarangul fishing lake near the agrochemicals storage facility (according to local residents), which pose a threat to the ecological system and the health of citizens in the event of their bottling and leakage, the board concludes that the Department's order is lawful at the time of its issuance.. The subsequent elimination of the identified violations by the plaintiff does not entail the cancellation of the order.
Thus, from the explanatory notes of plaintiff T.'s representative dated June 22 and 27, 2022, it follows that the soft tanks are placed on a hard and flat surface, which are made of crushed stone, fine sand and cement. According to T.'s explanations in the protocol on administrative offenses dated June 30, 2022, agrotanks are manufactured at the factory, they cannot make any changes to the design.
There have been no spills or leaks during their use. At the same time, there is no evidence of the plaintiff's purchase, possession or use of waterproof pallets at the time of the inspection in the case file.
The photos of agrotank MR-NT 205 U tanks presented by the plaintiff using waterproof pallets are dated only on November 29, 2022, that is, 5 months after the inspection. Taking into account the mandatory requirements of the Technical Regulations, taking into account the classification of fertilizers CAS-32 as agrochemicals, and the presence of Maly Tarangul fishing lake near the agrochemicals storage facility (according to local residents), which pose a threat to the ecological system and the health of citizens in the event of their bottling and leakage, the board concludes that the Department's order is lawful at the time of its issuance.. The subsequent elimination of the identified violations by the plaintiff does not entail the cancellation of the order.
The conclusions of the appellate instance on the inconsistency of the act and the regulation with the requirements of the Business Code cannot be taken into account. It was established that the act and the order were formed in electronic form in accordance with the form approved by the Rules for Registration of Acts on the appointment of 142 additional acts on extending the terms of inspection and preventive control and supervision with a visit to the subject (object) of control and supervision and their cancellation, notifications of suspension, resumption, extension of the terms of inspection and preventive control and supervision with a visit the subject (object) of control and supervision, changes in the composition of participants and the submission of information accounting documents on inspection and preventive control and supervision with a visit to the subject (object) of control and supervision and their results, approved by Order of the Acting Prosecutor General of the Republic of Kazakhstan No. 162 dated December 25, 2020.
In order to comply with the requirements of Articles 79 and 80 of the CPC, upon completion of the audit, a certificate of the audit results was drawn up, which details the facts and circumstances of violations with references to the norms of the Environmental Code and Technical Regulations, which was reviewed by the plaintiff's representative on June 30, 2022.
Moreover, article 156 of the Business Code contains an exhaustive list of gross violations that lead to the cancellation of the audit results. The Department did not allow such violations in the case under consideration.
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