[introduction of the lawyer in this case]:
Zou Donghui
[basic facts]:
In June 2018, the defendants Zhang, Li and others jointly discussed the purchase of waste lead-acid batteries to refine lead ingots for sale. From June 2018 to July 2, 2019, Zhang and Li built a lead smelting plant in a quarry. Without obtaining the hazardous waste business license, without preparing the environmental impact report of the construction project and without equipped with facilities that meet the pollution prevention and control standards, they hired others to purchase and dismantle more than 2500 tons of waste lead storage, and used the pyrometallurgy process to refine more than 1100 tons of lead ingots and other by-products.
According to the inspection of the environmental monitoring department, the lead content in the soil of the demolition site in the factory yard exceeds the control value by 24 times, the chromium content exceeds the control value by 5 times, and the lead content in the ditch in front of the factory exceeds the maximum limit standard by 27%.
Judgment result and reason:
The court concluded in the first trial that the defendants Zhang and Li jointly illegally disposed of more than 2500 tons of dangerous goods and caused environmental pollution in a certain area, with particularly serious consequences, constituting the crime of environmental pollution. According to the criminal circumstances of each defendant, they shall be sentenced to fixed-term imprisonment ranging from 2 to 4 years and fined.
Relevant provisions:
Article 338 of the criminal law of the people's Republic of China:
Whoever, in violation of state regulations, discharges, dumps or disposes of radioactive wastes, wastes containing infectious disease pathogens, toxic substances or other harmful substances, thus seriously polluting the environment, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention and shall also, or shall only, be fined; If the consequences are especially serious, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years and shall also be fined.
Interpretation of the Supreme People's court and the Supreme People's Procuratorate on Several Issues concerning the application of laws in handling criminal cases of environmental pollution (hereinafter referred to as the interpretation)
Article 3 (2):
An act specified in articles 338 and 339 of the criminal law shall be deemed to have "particularly serious consequences" if one of the following circumstances occurs:
（2） Illegally discharging, dumping or disposing of more than 100 tons of hazardous waste;
Article 16:
The act of extracting substances from hazardous wastes as raw materials or fuels for the purpose of making profits without a hazardous waste business license, and having excessive discharge of pollutants, illegal dumping of pollutants or other illegal circumstances that cause environmental pollution shall be recognized as "illegal disposal of hazardous wastes".
[lawyer's opinion]:
1、 In the first instance judgment, it is inappropriate to identify the quantity of the defendant's "waste batteries used for refining lead ingots" as the quantity of "illegal disposal of hazardous wastes", which is a misreading of the meaning of "disposal". In the treatment of hazardous wastes, "utilization" and "disposal" are two different legal concepts, which should not be confused:
1. Article 88 of the law on the prevention and control of environmental pollution by solid wastes (hereinafter referred to as the "solid law") gives a legal definition of disposal and utilization:
Disposal refers to the activities of incinerating solid wastes and using other methods to change the physical, chemical and biological characteristics of solid wastes, so as to reduce the amount of solid wastes generated, reduce the volume of solid wastes, reduce or eliminate their hazardous components, or finally place solid wastes in landfills that meet the requirements of environmental protection regulations.
Utilization refers to the activities of extracting substances from solid wastes as raw materials or fuels. In other words, the so-called "disposal" means that the wastes "disappear" without forming new products through incineration, landfill or materialization; The so-called "utilization" is to produce new products through different production equipment and technological processes.
In the specific provisions of the solid law, "utilization" and "disposal" are also placed in parallel and equal positions.
For example, Article 57 stipulates that "units engaged in the collection, storage and disposal of hazardous wastes must apply to the competent administrative department of environmental protection of the people's government at or above the county level for a business license; units engaged in the use of hazardous wastes must apply to the competent administrative department of environmental protection of the State Council or the competent administrative department of environmental protection of the people's Government of provinces, autonomous regions and municipalities directly under the central government for a business license".
The above provisions indicate that the utilization and disposal of hazardous wastes are clearly defined in law.
2. According to the code table of hazardous waste utilization and disposal methods, it can also be clearly seen that "utilization" and "disposal" are two different hazardous waste treatment methods, such as:
The utilization of hazardous wastes (excluding medical wastes and chromium residues) includes R4 recycling / reuse of metals and metal compounds;
The disposal methods of hazardous wastes (excluding medical wastes and chromium slag) include D1 landfill, D9 physical and chemical treatment, D10 incineration, etc.
3. In the interpretation of the Supreme People's court and the Supreme People's Procuratorate on Several Issues concerning the application of laws in handling criminal cases of environmental pollution (hereinafter referred to as the interpretation), the "disposal" and "utilization" of hazardous wastes are also strictly distinguished. They are also juxtaposed in the provisions, that is, the "utilization" and "disposal" are placed in parallel and equal positions. For example, Article 6 "engaging in the collection, storage, utilization and disposal of hazardous wastes without a hazardous waste business license..." Article 7 "knowing that others do not have a hazardous waste business license, providing or entrusting them to collect, store, utilize and dispose of hazardous wastes...".
The above legal provisions indicate that in the treatment of hazardous wastes, "utilization" and "disposal" are two behaviors with different meanings, two different ways of treatment of hazardous wastes, and they are parallel and parallel legal relations.
2、 The quantity of hazardous wastes illegally "disposed" shall be determined on the basis of the quantity of "pollution factors", rather than the quantity of hazardous wastes illegally "used".
Where hazardous wastes are disposed of by means of discharge, dumping and disposal, the pollution factor is the hazardous wastes themselves entering the natural environment; If hazardous wastes are treated in the way of utilization, the pollution factor is the pollution wastes generated in the process of refining hazardous wastes and entering the natural environment, rather than the hazardous wastes used for refining and utilization.
Therefore, as for the behavior subject of disposing and utilizing hazardous wastes, if the behavior subject conducts "illegal discharge, dumping and disposal of hazardous wastes", it will directly constitute "illegal disposal of hazardous wastes". If the amount of disposal exceeds 3 tons, it will be subject to criminal investigation; If the hazardous wastes to be used are not discharged, dumped or disposed, it is impossible to constitute "illegal disposal of hazardous wastes". If direct discharge of waste water, illegal landfill of waste residue and other illegal acts causing environmental pollution are carried out during the extraction of hazardous wastes, the criminal responsibility for illegal discharge, dumping and disposal of hazardous wastes can be investigated for the subsequent illegal acts of using hazardous wastes.
As for the treatment of waste lead-acid batteries, if the lead-acid batteries are directly dumped or buried underground, then the factors that cause pollution to the natural environment are the dumped or buried waste lead-acid batteries; If the waste lead-acid battery is refined and environmental pollution is caused in the process, then the factor causing pollution to the natural environment is not the waste lead-acid battery itself, but the waste water, waste gas and waste residue generated in the refining process, that is, the pollutants directly discharged, dumped and disposed of into the natural environment without anti pollution treatment in the refining process.
It can be seen that the hazardous waste illegally disposed of in the former is waste lead-acid batteries, and the hazardous waste illegally discharged, dumped and disposed of in the latter is the waste generated in the process of refining waste lead-acid batteries, not the waste lead-acid batteries themselves.
3、 Understanding of Article 16 of the interpretation.
To sum up, the meaning of Article 16 of the interpretation should be: unlicensed "utilization" (Note: consistent with the expression of "utilization" in the solid law) if the hazardous waste does not cause environmental pollution, it does not belong to illegal "disposal" of hazardous waste; if "utilization" causes environmental pollution at the same time, it belongs to illegal "disposal" of hazardous waste. That is to say, the extraction and utilization of hazardous wastes is not an environmental illegal act stipulated by law, and the excessive discharge of pollutants during the extraction process is an environmental illegal act.
Since this is the case, the criminal punishment for environmental pollution should only be the environmental violations committed in the refining process, not the refining behavior itself, because the refining behavior is not the environmental violations of "disposal" of hazardous wastes stipulated by the law, and the hazardous wastes used for refining have not entered the natural environment before being "disposed" and are unlikely to cause pollution to the natural environment, Environmental pollution is caused by hazardous wastes generated in the refining process and directly entering the natural environment. Therefore, in this case, the determination of the amount of illegal "disposal" of hazardous wastes should be based on the actual amount of pollutants discharged, rather than the amount of hazardous wastes used for refining. Otherwise, the behavior of "using" hazardous wastes is also recognized as an environmental illegal behavior, To regard the quantity of hazardous wastes "used" as the quantity of hazardous wastes "disposed of" is not only contrary to the intention of the establishment of this crime, but also contrary to the penalty principle of "matching crime with punishment".
4、 Conclusion.
In conclusion, the 2500 tons of waste batteries in this case are only the number of waste batteries recycled by the defendant, not the number of waste batteries directly "disposed" as wastes. Therefore, the determination of the amount of "illegal disposal of hazardous wastes" in this case in the first instance judgment is inappropriate.