Anwkei Chen
The Supreme Administrative Court rendered the 108-Pan-Zi280 Decision on June 6, 2019 (the “Decision”)in which it held that penalties pursuant to an order to timely rectify under Article 51, Paragraph 2 of the Waste Disposal Law may not be imposed until the administrative decision has been served on the sanctioned party.
The appellant in this case sent its personnel to investigate the appellee’s land at issue upon its receipt of public complaints regarding such land. The appellant’s personnel found large quantity of waste tires piled up onsite, thus the appellee was notified to deal with them as soon as possible. The appellant again sent investigators onsite but found the waste tires still not disposed of, and as a result, in finding . that the appellee is not a lawful recycling and processing operator and whose storage practices fail to meet the requirements of the central competent authority, the appellant held that Appellee violated Article 18, Paragraph 1 of the Waste Disposal Law and shall be fined as well as be ordered to attend a two-hour environmental training in accordance with Article 51, Paragraph 2 of the same law and Article 23, Paragraph 1, Subparagraph 2 of the Environmental Education Law effective at the time. In addition, the waste tires shall be disposed of within 30 days, or repeated fines may be imposed on a daily basis. A later inspection by the appellant showed that the appellee has still failed to timely complete the rectification process., and as a result, a NT$60,000 fine and a two-hour environmental training were imposed on the appellee for 49 days of violation in accordance with the continuous daily penalty provision in Article 51, Paragraph 2 of the Waste Disposal Law. The appellee filed an administrative appeal to contest the above administration decision, and a part of the decision was set aside even though the fine was upheld. The appellee then initiated administration litigation over the administrative appeal, and the appellant is now appealing the portions that were unfavorable to it.
Article 15, Paragraph 1 of the Waste Disposal Law provides: “For articles and the packaging and containers thereof that produce general wastes possessing one of the following characteristics after their consumption or use and cause serious pollution concerns, the manufacturer or importer of the articles and the packaging and containers thereof at issue, or the manufacturer or importer of the raw materials of such items, shall be responsible for recycling, cleanup, disposal and handling, and the vendor shall be responsible for the recycling and cleanup work: (1) cleanup and disposal are difficult; (2) contain ingredients that do not easily decompose over a long period; (3) contain hazardous substances; and (4) have recycling and reuse value.” Article 18, Paragraph 1 of the same law provides that the recycling, storage, cleanup and disposal of the general wastes created from the consumption or use of the articles announced in Paragraph 2 of Article 15 and their packages and containers shall meet the requirements of the central competent authority.
The Decision then reasoned that as tires are articles that are required to be recycled pursuant to the the central competent authority’s announcement, the order to the appellee for timely rectification under Article 51, Paragraph 2 of the Waste Disposal La represents a single administrative law obligation on the appellee to timely complete the task. Before the task is completed, the appellee would be considered to be in continuous breach of such administrative law obligation, and the state of that single obligation/violation only goes up to the point the penalty is imposed (the sanctions decision is served); a continued failure to perform thereafter would constitute a separate breach count. The reason for repeated daily penalties for failure to timely complete is to pressure the sanctioned party to rectify, so a failure to timely serve the sanctions decision to pressure the sanctioned party, but instead waiting to serve it along with the order for continuous daily penalty purely out for convenience, would not have the effect of pressuring the appellee to perform and is against the legislative purpose of continuous daily penalties. Hence, the authority rendering the sanctions decision cannot impose a penalty until its sanctions decision has been served on the sanctioned party .