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China: Detention to Be Applied for Discharging Pollutants

(Sept. 25, 2008) On August 6, 2008, China's Ministry of Environmental Protection posted on its official website a notice to circulate the Opinion on Application of Administrative Detention for Discharging Illegal Pollutants, issued by the Legislative Affairs Office of the Standing Committee of the National People's Congress (NPC Opinion). (Huan Fa [2008] No. 62, (in Chinese) (last visited Aug. 20, 2008).) According to the NPC Opinion, people found responsible for the illegal discharge of dangerous chemicals into bodies of water may face up to 15 days' detention. (Fa Gong Wei Fu [2008] No. 5, (in Chinese) (last visited Aug. 20, 2008).)

The newly revised Law on Prevention of Water Pollution entered into force on June 1, 2008. The revised Law raised the upper limit on enterprises' payments of penalties to 30 percent of the direct loss caused by major or exceptionally serious water pollution accidents, and senior company executives may have up to half of their annual salary docked if they are found responsible for an accident (see 3 W.L.B. 2008). However, the penalties provided by the Law were considered too “soft” to frighten the polluters; the regulators found they were in need of “hard weapons.” (Interpretation: The Profound Meaning of Introducing Administrative Detention into Environmental Law Violation for the First Time, FAZHI RIBAO [LEGAL DAILY], Aug. 13, 2008 (in Chinese), available at

The NPC Opinion was issued on May 23, 2008. The decision to impose detention on water polluters is based on two provisions of the Law on Public Security Administration Penalties: 1) article 30 provides that persons who misuse dangerous substances may face up to 15 days' detention; and 2) article 18 provides that the directly liable person-in-charge of an entity that violates public security administration and other directly liable persons are subject to public security administration penalties. The Law on Prevention of Water Pollution also contains the general provision that any entity or individual who commits a violation against public security administration will be subject to public security administration penalties (art. 90). The NPC Opinion concludes that “discharging poisonous, radioactive, and erosive substances or spreading disease pathogens into water bodies may violate the public security administration, and the directly liable person-in-charge or another directly liable person of the polluting entity may face detention by the public security organs.” (NPC Opinion, supra, translated by the author.) Because the NPC Opinion does not provide the amount of pollutants discharged or the scale of resultant damage from the discharge that will incur a penalty, regulators believe that any amount of pollutants discharged into water bodies, regardless of the result, may subject the liable person to detention. (LEGAL DAILY, supra.)