Hongshun, a paper company, released untreated waste water into the river through a hidden outfall. It had been caught and fined twice already for doing the same thing. The court of first instance held Hongshun liable for restoration costs and loss of ecological service functions. Hongshun appealed on grounds of liability, damage valuation, and administrative liability. The original judgement was sustained.
Environmental Legal Questions:
- Can Hongshun be held liable if it cannot be demonstrated that the ecological conditions at the outfall deteriorated: Water quality at the discharge point cannot serve as an indicator of regional water quality. River quality may improve with the dispersion of pollutants, but those pollutants still exist in the river system. Hongshun can be held liable.
- Was determining the restoration cost according to the “virtual treatment cost method” appropriate: Where hard to determine restoration expenses, the court may reasonably determine expenses in light of the extent of the damage, difficulty of restoration, cost of pollution prevention, benefits obtained by the defendant, extent of fault, and other factors. Here the objective damage is significant due to downstream effects, and the subjective fault serious – Hongshun continued to discharge pollution even after having been caught and fined. Since it is beyond Hongshun’s capability to restore or even propose a restoration scheme, the valuation is appropriate.
- Can Hongshun be held liable for loss of service functions: Although difficult to calculate accurately, experts suggest the concentration of pollutants would cause water quality to drop below acceptable irrigation standards, among other effects. Hongshun is liable for these losses.
- Can the court accept an estimate of pollution beyond that demonstrated: The company is in the position of proving the actual volume discharged. In the absence of evidence to the contrary, it is appropriate for the procuratorate to reasonably approximate the amount of pollution actually discharged based on the amount proven to have been discharged.
- Should the fines Hongshun paid for the same conduct offset its liability: The fact that a company was punished by an administrative organ does not affect its civil liability. The fines shall not be deducted from the amount Hongshun is liable for restoration and damages.