On the recognition of illegal and cancellation of the regulation on the elimination of violations, the Department of Ecology of the Regional Committee for Environmental Regulation and Control
No.6001-23-00-6ap/357 dated 1.08.2023
Plaintiff: JSC "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 of the illegal and cancellation of the order on the elimination of violations dated June 6, 2022.
Review of the plaintiff's cassation appeal.
PLOT: In the period from April 22 to June 6, 2022, the Department carried out preventive control and supervision of the Company with a visit to the subject (object) of control and supervision. The main activity of the Company is to provide drinking-quality water to the city and suburban settlements, as well as receiving, transporting, and treating household and industrial wastewater from the population and industrial enterprises of the city.
According to the sanitary and epidemiological conclusion of October 08, 2009, the Company belongs to the subject of the 1st category of danger. The basis of preventive control and supervision is a list of objects of preventive control with a visit to the subject (object) of control in the field of environmental protection for the 1st half of 2022, approved by the Order of the Minister of Ecology, Geology and Natural Resources of the Republic of Kazakhstan dated December 10, 2021 (hereinafter referred to as the Order).
Act on the appointment of preventive control and supervision with visits to 143 subjects (objects) of control and supervision No. 35 dated April 21, 2022 (hereinafter referred to as the Act).
The period under review is January 1, 2020 – May 17, 2022. Based on the results of preventive control and supervision, the Department has issued an order.
According to the order, the control body identified 13 "gross" and 2 "significant" violations in terms of risk, the order contains recommendations and possible actions to eliminate the identified violations, and a deadline has been set for their elimination.
In addition, based on the results of preventive control and supervision of the Company, 18 protocols on administrative offenses for violations in the field of environmental protection have been drawn up.
The Company appealed to the court with the above-mentioned claim, justifying the claims with the following arguments:
1) the time of issuing the order for the appointment of an inspection does not correspond to the period of preventive control, an additional act on extending the terms of preventive control was issued earlier than the act on the appointment of preventive control;
2) the preventive control was carried out with gross violations, the defendant did not notify about the start of the inspection, the act on changing the composition of the inspection persons and the additional act on extending the deadline were not registered with the legal statistics authorities.;
3) the defendant unlawfully drew up protocols on administrative offenses;
4) the water sampling procedure is violated;
5) the instruction indicates violations not at the place of preventive control; 6) the instruction incorrectly indicates violations related to waste collection and incineration, in fact, fallen leaves were burned after the clean-up day.
Judicial acts:
1st instance: the claim is partially satisfied.
It was decided: to declare illegal and cancel the order on the elimination of violations dated June 6, 2022 No. 35/07624 - 01 regarding: - item 2 on KNS – 11 (sewage pumping station), "spetsstroy"; - item 1 on KNS -1, located onKunaeva 65; - point 1 according to KNS -13, located in the city, 41 siding; - R.Su item 6 on sewage treatment plants of Akbulak Joint Stock Company.
The rest of the claim was denied.
Appeal: the decision of the court of first instance has been changed. The claim was denied. Cassation: the decision of the appeal has been changed, the court's decision has been upheld.
Conclusions: The Court of First Instance motivated its decision to partially satisfy the claim by the fact that the requirements of Article 321 of the Environmental Code of the Republic of Kazakhstan apply to specialized organizations engaged in organized waste collection from individuals and legal entities, and the Company is not such a specialized organization.
The Court of Appeal, canceling the court's decision regarding the satisfaction of the claim and making a new decision to dismiss the claim in this part, proceeded from the type of activity of the Company and, taking into account the presence of hazardous waste (sludge from wastewater treatment), as well as the classification of the Company as a hazard category 1 entity, recognized the presence of the plaintiff's violation of environmental legislation, in particular Article 321 of the EC, since the plaintiff is obliged to carry out separate collection of waste generated in the course of its activities.
These conclusions of the Court of appeal are erroneous. In accordance with the first and second parts of Article 72 of the CPC, an administrative body or official is obliged to take measures for a comprehensive, complete examination of the circumstances and objective investigation of the facts relevant to the proper consideration of an administrative case.
The procedure and limits for investigating the factual circumstances of an administrative case are determined by an administrative body or official, taking into account the opinions of participants in the administrative procedure.
The courts have established that preventive control was carried out strictly within the framework of the Business Code, no gross violations were committed, and there are no legal grounds for revoking the entire regulation.
The Judicial Board agrees with the legal conclusions of the local courts in this part and the courts have given them a proper legal assessment. The arguments in this part were the subject of consideration in the court of appeal.
At the same time, the judicial board does not agree with the conclusions of the appellate instance regarding the exclusion of a number of violations and the imputation of violations of the norms of Article 321 of the EC to the Society, as these do not correspond to the actual circumstances of the case and the current legislation.
According to the regulation: paragraph 2 of the CNS – 11, paragraph 1 of the CNS -1, paragraph 1 of the CNS -13, paragraph 6 of the CBS of JSC "A" indicates a violation by the control entity of the requirements of Article 321 of the EC on the prohibition of mixing waste. It follows from the content of Article 321 of the EC that waste collection refers to the organized collection of waste from individuals and legal entities by specialized organizations in order to further direct such waste to recovery or disposal.
Waste collection operations may include auxiliary operations for sorting and accumulating waste during the collection process. Persons carrying out waste collection operations are required to ensure separate waste collection in accordance with the requirements of this Code.
Separate waste collection refers to the collection of waste separately by type or group in order to simplify further specialized waste management. Separate collection is carried out according to the following fractions:
1) "dry" (paper, cardboard, metal, plastic and glass);
2) "wet" (food waste, organic matter, etc.). Mixing of waste subjected to separate collection is prohibited at all further stages.
As stated in Article 321 of the EC, separate waste collection refers to the collection of waste separately by type or group in order to simplify further specialized waste management. However, the Society receives household and industrial wastewater from the population and industrial enterprises of the city already in a mixed state.
Accordingly, Article 321 of the EC is not applicable to the Company. This is also confirmed by paragraph 5 of the Order of the Acting Minister of Ecology, Geology and Natural Resources of the Republic of Kazakhstan dated December 2, 2021 No. 482 "On Approval of Requirements for separate waste collection, including types or groups (totality of types) of waste subject to mandatory separate collection, taking into account technical, economic and environmental expediency""on the fact that waste subjected to separate collection is not mixed at all stages of waste management.
In the case of the Company, waste was mixed, respectively, the requirement and norm of Article 321 of the EC are not consistent, such conclusions are also confirmed by the norms of Article 317 of the EC. According to paragraph 2 of this article, wastewater is not considered waste.
Thus, the court of first instance came to the correct conclusion that the injunction regarding imputing violations of Article 321 of the EC to the Society is illegal.
At the same time, the judicial board does not agree with the reasoning of the court of first instance that the Company is not a specialized organization.
The rest of the claims of the administrative claim are not supported, as they are based on circumstances inconsistent with the case file.
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