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The law on strengthening administrative liability for environmental offences has taken effect

27.06.2019
13 min read
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Pepeliaev Group advises that on 17 June 2019 amendments took effect that have been made to the Russian Code of Administrative Offences by Federal Law No. 141-FZ[1]. They include changing the text and supplementing articles 8.2[1] and 8.4[1] with new provisions as well as introducing new heads of administrative offences (8.51 and 8.411) in the area of handling production and consumption waste. 

The new version of and additions to article 8.2 of the Russian Code of Administrative Offences

The old version of the article contained one ‘general’ head that stipulated liability for a failure to comply with both environmental and sanitary and epidemiological requirements when production and consumption waste, substances that damage the ozone layer, or any other hazardous substances are collected, accumulated, used, neutralised, transported, placed or otherwise treated.
 
In the new version, article 8.2 contains 12 parts and concerns violations only of ecological requirements when waste is being handled[2]. 

Part 1 provides for liability for a failure to meet the requirements in the sphere of environmental protection when production and consumption waste is collected, accumulated, transported, processed, disposed of or neutralised (except for the cases stipulated in article 8.23[3] of the Code). Liability is imposed in the form of an administrative fine of RUB 20,000 to 30,000 on companies’ officers, RUB 30,000 to 50,000 on parties carrying out business activity without a legal entity being established, and RUB 100,000 to 250,000 on legal entities, or an administrative suspension of activities for up to 90 days. 

Part 2 provides for liability for a violation stipulated by part 1 that is committed repeatedly within a year. Liability is imposed in the form of an administrative fine
of RUB 30,000 to 40,000 on companies’ officers, RUB 50,000 to 70,000 on parties carrying out business activity without a legal entity being established, and RUB 250,000 to 400,000 on legal entities, or an administrative suspension of activities for up to 90 days. 

Part 3 provides for liability for actions stipulated by part 1 that have caused people’s death or personal injury or environmental damage, or that have resulted in an epidemics or epizootic outbreaks, if such actions do not have any signs of a criminal offence. Liability is imposed in the form of an administrative fine of RUB 40,000 to 50,000 on companies’ officers, RUB 70,000 to 80,000 on parties carrying out business activity without a legal entity being established, and RUB 400,000 to 500,000 on legal entities, or an administrative suspension of activities for up to 90 days. 

Part 4 provides for liability for a failure to meet requirements in the sphere of environmental protection when production and consumption waste is placed (except for the cases stipulated in article 8.23[3] of the Code). Liability is imposed in the form of an administrative fine of RUB 20,000 to 40,000 on companies’ officers, RUB 40,000 to 50,000 on parties carrying out business activity without a legal entity being established, and RUB 300,000 to 400,000 on legal entities, or an administrative suspension of activities for up to 90 days. 

Part 5 provides for liability for the violation stipulated by part 4 that is committed repeatedly within a year. Liability is imposed in the form of an administrative fine of RUB 40,000 to 50,000 on companies’ officers, RUB 50,000 to 60,000 on parties carrying out business activity without a legal entity being established, and RUB 500,000 to 600,000 on legal entities, or an administrative suspension of activities for up to 90 days.

Part 6 provides for liability for actions stipulated by part 4 that have caused people’s death or personal injury or environmental damage or have resulted in an epidemic or epizootic outbreaks, if such actions do not have any signs of a criminal offence. Liability is imposed in the form of an administrative fine of RUB 50,000 to 60,000 on companies’ officers, RUB 60,000 to 70,000 on parties carrying out business activity without a legal entity being established, and RUB 600,000 to 700,000 on legal entities, or an administrative suspension of activities for up to 90 days.

Part 7 provides for liability for a failure to perform an obligation to develop draft standards for waste being created and draft limits for the waste to be placed and to submit such drafts for them to be approved by a competent authority. Liability is imposed in the form of an administrative fine of RUB 20,000 to 40,000 on companies’ officers, RUB 40,000 to 60,000 on parties carrying out business activity without a legal entity being established, and RUB 200,000 to 300,000 on legal entities.

Part 8 provides for liability for production and consumer waste being placed in excess of the approved limits. Liability is imposed in the form of an administrative fine of RUB 20,000 to 40,000 on companies’ officers, RUB 40,000 to 60,000 on parties carrying out business activity without a legal entity being established, and RUB 200,000 to 350,000 on legal entities,
or an administrative suspension of activities for up to 90 days.

Part 9 provides for liability for non-performance of the obligation to classify production and consumer waste of classes I-V as a certain hazard class in order to confirm such classification or to draw up waste passport for waste of hazard classes I-IV. Liability is imposed in the form of an administrative fine of RUB 20,000 to 40,000 on companies’ officers, RUB 40,000 to 60,000 on parties carrying out business activity without a legal entity being established, and RUB 200,000 to 350,000 on legal entities.

Part 10 provides for liability for a default on the obligation to keep account of handling production and consumer waste. Liability is imposed in the form of an administrative fine
of RUB 20,000 to 40,000 on companies’ officers, RUB 40,000 to 60,000 on parties carrying out business activity without a legal entity being established, and RUB 200,000 to 350,000 on legal entities.

Part 11 provides for liability for a failure to perform the obligation to monitor the condition and pollution level of the environment at facilities where waste is placed and within their environmental impact limits. Liability is imposed in the form of an administrative fine of RUB 20,000 to 40,000 on companies’ officers, RUB 40,000 to 60,000 on parties carrying out business activity without a legal entity being established, and RUB 200,000 to 350,000 and on legal entities.

Part 12 provides for liability for a default on the obligation to take inventory of waste placement facilities, such liability being in the form of an administrative fine
of RUB 20,000 to 40,000 on companies’ officers, RUB 40,000 to 60,000 on parties carrying out business activity without a legal entity being established, and RUB 200,000 to 350,000 on legal entities.


Комментарий ПГ
As compared with the draft law, in the version that has been adopted, liability has become stricter for the violation of requirements for handling waste. Thus, for instance, the draft law
  • established the sanction of an administrative suspension of activities for up to 90 days only for repeated offences relating to waste handling activities and for inflicted damage, or other serious consequences;
  • did not provide for liability for a failure to confirm that waste was assigned to hazard class V. Liability arose only in respect of the failure to draw up passports for I-IV hazard class waste. In this case the fine was from RUB 70,000 to 100,000 for legal entities whereas in the version that has been adopted the fine has been increased threefold (it is from RUB 200,000 to RUB 300,000).

The application of the sanction where activities are suspended raises the question of whether such measure will be applied in respect of waste handling activities or in respect of the company's production activities.

An increased fine for breaching the legislation regarding an environmental expert review (article 8.4 of the Russian Code of Administrative Offences)

Part 1 (non-compliance with the requirements for an environmental expert review and the implementation of a project without a positive report from an environmental expert review) provides for a fine of RUB 10,000 to 20,000 on companies’ officers and RUB 100,000 to 250,000 on legal entities.

Part 2 (carrying out operations that do not correspond to documentation which received a positive report from an environmental expert review) provides for a fine of RUB 10,000 to 20,000 on companies’ officers and RUB 100,000 to 250,000 on legal entities.
Additions to article 8.7 of the Russian Code of Administrative Offences

Part 3 provides for liability for the non-performance of the obligation to follow up on the condition of a facility where waste is placed or to perform activities aimed at the recovery (reclamation and conservation) of damaged lands after the waste placement facility has finished its operations. Liability is imposed in the form of an administrative fine
of RUB 15,000 to 25,000 on companies’ officers, RUB 25,000 to 50,000 on parties carrying out business activity without a legal entity being established, and RUB 70,000 to 150,000 on legal entities.

Part 4 provides for liability for applying hard household waste for the reclamation of lands and open pits. Liability is imposed in the form of an administrative fine
of RUB 20,000 to 30,000 on companies’ officers, RUB 30,000 to 50,000 on parties carrying out business activity without a legal entity being established, and RUB 100,000 to 250,000 on legal entities, or an administrative suspension of activities for up to 90 days.

New heads of offences to supplement article 8 of the Russian Code of Administrative Offences

Article 8.5[1] “Violation of the procedure for submitting reports with respect to meeting the standards for the disposal of waste from the use of goods or submitting declarations on the number of goods that were released into circulation in Russia, packaging of goods included in the list of goods, packaging of goods that are to be disposed of after they lose their consumer properties and that have been sold for internal use in Russia for the previous calendar year”:

Part 1 provides for liability for the failure to submit or timely submit reports with respect to meeting the standards for the disposal of waste from the use of goods or submitting declarations on the number of goods that were released into circulation in Russia, packaging of goods included in the list of goods, packaging of goods that are to be disposed of after they lose their consumer properties and that have been sold for internal use in Russia for the previous calendar year. Liability is imposed in the form of an administrative fine
of RUB 3,000 to 6,000 on companies’ officers, RUB 50,000 to 70,000 on parties carrying out business activity without a legal entity being established, and RUB 70,000 to 150,000 on legal entities.

Part 2 imposes liability for submitting reports with respect to meeting the standards for the disposal of waste from the use of goods or submitting declarations on the number of goods that were released into circulation, packaging of goods included in the list of goods, packaging of goods that are to be disposed of after they lose their consumer properties and that have been sold for internal use in Russia for the previous calendar year if such reports are incomplete or contain false information. The administrative fine is equal to RUB 3,000 to 6,000 for companies’ officers or, in case of legal entities and parties carrying out business activity without a legal entity being established, double the charge payable by producers or importers of goods that have failed to ensure the disposal of waste from the use of goods on their own, for each group of goods or group of packaging of the goods, but no less than RUB 250,000 (RUB 100,000 for parties carrying out business activity without a legal entity being established).

Article 8.41[1] “Failure to pay the charge payable by producers of goods for each group of goods or group of packaging of the goods within the established timeframes”:
liability is stipulated for a failure to pay the charge for each group of the goods or group of packaging of the goods within the established timeframes in case of a default on the obligation to dispose of the waste from the use of the goods independently. The administrative fine is imposed equal to RUB 5,000 to 7,000 for companies’ officers or, in case of legal entities and parties carrying out business activity without a legal entity being established, triple the charge payable by producers or importers of goods that have failed to ensure the disposal of waste from the use of goods on their own, for each group of goods or group of packaging of the goods, but no less than RUB 500,000 (RUB 250,000 for parties carrying out business activity without a legal entity being established).


Комментарий ПГ
When the amount of the sanction is determined, the ‘rate’ of the charge is replaced with the ‘amount’ of the charge. This clarification is important since if the charge rate had been used to calculate the fine and the standard for disposal had not been taken into account, it could have resulted in an additional fine of 200/300 percent being assessed. 

In addition, the word ‘environmental’ is excluded from the text of articles 8.51 and 8.411. This is obviously because of articles 255 and 256 concerning environmental payments that are expected to be introduced into the Russian Tax Code.

Another very important change as compared with the draft law is that the sanction in the form of suspension of activities for 90 days has been excluded from both article 8.5[1] and article 8.41[1].

What to think about and what to do

With the new provisions being introduced in the Russian Code of Administrative offences, there is no talk any longer that in some cases it is easier for the enterprise to pay the fine than to meet requirements for protecting the environment.

Bearing this in mind, companies performing activities related to handling waste should take an inventory of all the documents concerning environmental protection and should check their operations to identify whether they meet requirements in the sphere of environmental protection. This is because administrative liability imposed for environmental protection has ceased to be formal in nature. 

Help from your adviser

Pepeliaev Group lawyers are ready to advise you on issues relating to the changes in environmental legislation and to assist you in liaising with the controlling authorities in the case of a dispute. 

__________________________
[1]  The Russian Ministry of Natural Resources and Environment prepared the relevant draft law as early as in summer 2018; details are available in the alert on our Company’s website (16 July 2018).
[2] A violation of sanitary and epidemiological requirements is singled out as a separate head (article 6.35), as is a violation of the requirements for handling other hazardous substances (articles 8.21, 8.22 and 8.23).
[3] Rates of the environmental charge payable by producers or importers of goods that have failed to ensure the disposal of waste from the use of goods on their own, for each group of goods that are to be disposed of after they have lost their consumer properties, are approved by the Russian Government’s Resolution No. 284 dated 9 April 2016.


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