2017.12.18
Ankwei Chen
The Supreme Administrative Court rendered the 106-Pan-757 Decision of December 28, 2017 (hereinafter, the “Decision”), which held that in ascertaining the cleanup status of water pollution and pollutants, because of the nature of an administrative inspection, it is usually not necessary to inform the concerned parties in advance so that the sampling process may be timely and accurately conducted.
The Plaintiff held a water pollution prevention permit issued by the Defendant. The Defendant inspected an effluent outlet and took water samples for examination. The examination showed that the concentration of nickel, which is a harmful substance to health, failed to meet effluent discharge standards in violation of Article 7, Paragraph 1 of the Water Pollution Control Law. Therefore, the original administrative decision imposed a fine on Plaintiff and required it to install monitoring equipment and attend an environmental workshop within the required period. Plaintiff thus sought to contest the decision in administrative litigation. After losing in the previous instance, the Plaintiff filed this appeal.
According to the Decision, the discharge of waste (sewage) water is time-critical, as water pollutants are easily diluted or dispersed. Therefore, to ascertain the cleanup status of water pollution and pollutants, the nature of an administrative inspection means it is usually not necessary to inform the parties concerned in advance, nor does the law stipulate such kind of notice, thus the use of on-the-spot, highly mobile inspections is conducive to the timeliness and accuracy of sample collection. . As a result, since the act of verification under Article 26 of the Water Pollution Control Law is to carry out the water pollution monitoring mechanisms, it is considered “as otherwise stipulated by law”under Article 3, Paragraph 1 of the Administrative Procedure Law, and Article 42 of the Administrative Procedure Law does not necessarily apply.
Plaintiff’s appeal alleging that Defendant’s dispatch of personnel to conduct on-site inspection violated Article 42 of the Administrative Procedure Law for failure to provide prior notice,was therefore unpersuasive, and the previous instance’s decision upholding the original administrative decision was found to not be in error. Plaintiff’s appeal was therefore rejected.