On May 24th, 2021, the Government of Việt Nam issued Decree No. 55/2021/ND-CP to amend and supplement some provisions of Decree No. 155/2016/ND-CP dated November 18th, 2016, on penalties for administrative violations against environmental protection regulations. Decree No. 55/2021/ND-CP will take effect from July 10th, 2021. The promulgation of Decree No. 55/2021/ND-CP is crucial to create legal gaps while the revised Law on Environmental Protection (LEP) and the Law on amending and supplementing some provisions of the Law on penalties for administrative violations will take effect from the 1st January 2022.
Decree No. 55/2021/ND-CP added a new provision in which the people’s public security forces have the power to impose penalties for acts of discharging untreated waste into the environment
The revision of Decree No. 155/2016/ND-CP stems from the issuance of Decree No. 40/2019/ND-CP dated May 13th, 2019, on amendments to Decrees guiding in detail the implementation of the LEP. Accordingly, many provisions in Decree No.40/2019/ND-CP that stipulate the responsibilities of organizations and individuals, production, business and service establishments for environmental protection have been amended. This led to the requirements for corresponding provisions on administrative sanctions to handle violations of environmental protection. Due to the lack of these provisions, inspection officials currently have difficulty in imposing a sanction against the establishments that do not comply with the provisions of Decree No. 40/2019/ND-CP. Furthermore, the National Assembly of the Socialist Republic of Việt Nam approved the Law amending and supplementing a number of provisions of the Penal Code in 2017 that changed fundamentally provisions on environmental crimes. Therefore, it is necessary to amend Decree No.155/2016/ND-CP to generate synchronization in handling administrative and criminal violations of environmental protection regulations. Besides, the revision could promptly overcome the arising shortcomings in the implementation of Decree No. 155/2016/ND-CP.
As a consequence, the Ministry of Nature Resources and Environment (MONRE) was assigned to review Decree No. 155/2016/ND-CP and submitted the amended Decree to the Government for consideration and promulgation from the end of 2019. MONRE has also consulted widely with other Ministries, line Ministries, localities, and the communities, then amended and supplemented 37 articles and the Appendix of Decree No.155/2016/ND-CP based on opinions of the members of the Government, Ministries and line Ministries. Some key highlights of Decree No. 55/2021/ND-CP are as follows:
Firstly, Decree No. 55/2021/ND-CP specifies additional sanctions to handle violations of new provisions of Decree No. 40/2019/ND-CP, for example, the violations of environmental procedures related to an environmental protection plan, environmental impact assessment, confirmation of completion of environmental protection works, environmental monitoring and supervision, import of scrap as raw production materials. Decree No. 55/2021/ND-CP also eliminates the provisions that are no longer in line with the practice.
Secondly, Decree No.155/2016/ND-CP was reviewed to ensure synchronization with the Penal Code regarding acts of discharging wastewater and emission into the environment…
Thirdly, Decree No. 55/2021/ND-CP resolved some problems when implementing Decree No. 155/2016/ND-CP. To illustrate, many provisions that only reflect the general principles were clarified for further application. Particularly, the new Decree has overcome the obstacles regarding the suspension of operation for violation of environmental protection in the case of public facilities such as hospitals or domestic waste treatment facilities. According to regulations on penalties for administrative violations against environmental protection, principal penalties are depending on the seriousness of violations, including fines, application of remedial measures, and suspension of operation for a definite period. It has witnessed the difficulty in suspending the operation of public facilities such as hospitals or domestic waste treatment facilities because of considerable impacts on the welfare and the society. For instance, if hospitals are forced to temporarily suspended, it could affect the people's medical examination and treatment. Similarly, the suspension of violated domestic waste treatment facilities would lead to the disruption in waste collection and treatment that cause the loss of urban beauty and even environmental pollution. As a result, the amended Decree stipulates that the additional penalty in the form of suspension of operation for a definite period to public facilities is not applied in case their violations do not lead to environmental pollution, or they have stopped committing violations or have completely remedied the consequences of their administrative violations.
In addition, Decree No. 55/2021/ND-CP also revised violations against regulations on hygiene in public places. Previously, the fine promulgated in Decree 155/2016/ND-CP for such violations were not suitable for some people’s income, leading to the complicated procedures to impose sanction to handle. For example, the violation of discharging domestic waste on pavements, roads, alleys that is caught on the spot by the competent officials, is only handled by the communal-level police chief or the district-level People's Committee chairperson or higher. This has been not feasible in practice so that there have been few cases handled. Therefore, the provisions on hygiene violations in public places have been revised in Decree No. 55/2021/ND-CP in which fines for these violations have been reduced and the fine rates have been adjusted in line with the power to impose penalties. Accordingly, the soldiers of People’s Public Security Forces on duty shall have the power to impose a fine up to VND 500,000 while the communal-level police chiefs and heads of public security stations shall have the power to impose a fine up to VND 2,500,000. For some acts such as throwing, littering, or discarding cigarette butts, leftovers, and ashes outside of the permitted places, a fine ranging from 100,000 to VND 150,000 shall be imposed on the spot by the police without issuing notices of administrative violations. It is the same for the case of the act of addressing personal sanitation needs (urination, defecation) outside of permitted places at residential, commercial, service, or public areas (a fine ranging from VND 150,000 to VND 250,000 shall be imposed for this act). The reduction in fine rates aims to ensure the feasible application to the majority of people as well as to simplify the sanctioning procedure with the form of on-site fines. Subsequently, the sanctions for handling environmental violations in public places could become more effective.
Additionally, Decree No. 55/2021/ND-CP also amended and supplemented the provisions on determination of power to impose penalties in which the competent forces have the authority to impose principal and additional penalties and remedial measures against administrative violations. Especially, the Decree indicates that People’s public security forces shall, under their authority, and within their managing sectors and scope, have the power to impose penalties for acts of installing equipment, pipelines, or other waste discharge routes to discharge untreated waste into the environment. Moreover, border guard forces shall, under their authority and within the sectors under their authority and scope of their duties, have the power to impose penalties for violations against regulations on solid and hazardous waste management, and marine environmental protection. This new provision helps to strengthen competent forces when detecting violations in border areas and on seas and islands, following the functions and tasks of the border guard forces.
Other provisions in Decree No.155/2016/ND-CP were also revised to ensure consistency and uniformity with existing regulations. Besides, it eliminates duplication with relevant Decrees on penalties for administrative violations. More importantly, the revision did not change the structure and the penalties specified in this Decree.
The promulgation of Decree No. 55/2021/ND-CP provides a solid legal basis for competent agencies to handle administrative violations; raising awareness of organizations and individuals and strengthening the effectiveness of state management in the field of environmental protection.
Nguyễn Hồng Quang, Nguyễn An Thủy
Department of Policy, Legal Affairs and Inspection, VEA
(Source: Vietnam Environment Administration Magazine, English Edition II - 2021)