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A Comparative Study: China's Water Pollutants Discharge Permit System

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A Comparative Study: China's Water Pollutants Discharge Permit System A Comparative Study: China’s Water Pollutants Discharge Permit System with Reference to the National Pollutants Discharge Elimination System of the United States of America Inaugural-Dissertation Zur Erlangung der Doktorwürde einer Hohen Rechtswissenschaftlichen Fakultät der Universität zu Köln vorgelegt von Yuan, Ye aus: Dalian, Volksrepublik China 1 Referent: Prof. Dr. Kirk W. Junker Korreferent: Prof. Dr. Stephan Hobe Tag der mündlichen Prüfung: 24 Februar 2016 2 Table of Contents A COMPARATIVE STUDY: CHINA’S WATER POLLUTANTS DISCHARGE PERMIT SYSTEM WITH REFERENCE TO THE NATIONAL POLLUTANTS DISCHARGE ELIMINATION SYSTEM OF THE UNITED STATES OF AMERICA .......................................................................................................................... 1 TABLE OF CONTENTS ......................................................................................................................................... 3 ABSTRACT ............................................................................................................................................................. 5 ZUSAMMENFASSUNG ......................................................................................................................................... 7 ACKNOWLEDGEMENT ...................................................................................................................................... 10 CHAPTER 1: INTRODUCTION .......................................................................................................................... 11 1.1 BACKGROUND .............................................................................................................................................. 11 1.2 MOTIVATION ................................................................................................................................................ 15 1.3 THESIS STRUCTURE ...................................................................................................................................... 17 CHAPTER 2: METHODS ..................................................................................................................................... 19 2.1 GENERAL PRINCIPLES OF THE FUNCTIONAL APPROACH AND CRITICS ......................................................... 20 2.2 REFERENTIAL ANALYSIS .............................................................................................................................. 22 2.3 COMPARABILITY AND INCOMPARABILITY OF THE CWA/NPDES AND WPPCL/WPDPS ............................ 24 CHAPTER 3: THE USA CWA/NPDES PERMIT PROGRAM ........................................................................... 30 3.1 HISTORICAL REVIEW OF THE CLEAN WATER ACT ....................................................................................... 30 3.2 REVOLUTIONARY LEGAL CHARACTERISTICS OF THE CWA ......................................................................... 33 3.3 THE NPDES PERMIT PROGRAM ................................................................................................................... 35 3.4 AN APPRAISAL OF NPDES: SUCCESSES AND PROBLEMS ............................................................................. 42 CHAPTER 4: CHINA’S WATER POLLUTANTS DISCHARGE PERMIT SYSTEM ...................................... 45 4.1 WATER POLLUTION IN CHINA ...................................................................................................................... 45 4.2 LEGAL CHARACTERISTICS OF WATER POLLUTION PREVENTION AND CONTROL LAW 2008 ........................ 49 4.3 THE ROLE OF PERMIT ................................................................................................................................... 55 4.4 REGULATIONS .............................................................................................................................................. 56 4.5 PILOT PROJECTS OF CHINA’S WATER POLLUTANTS DISCHARGE PERMIT SYSTEM ....................................... 59 4.6 SUMMARY .................................................................................................................................................... 61 CHAPTER 5: COMPARISON OF PERMIT REQUIREMENTS IN USA AND CHINA ................................... 63 5.1 COMPARISON OF EFFLUENT LIMITS MECHANISMS ....................................................................................... 63 5.2 TEC STRATEGY AND ITS RISKS .................................................................................................................... 72 CHAPTER 6: COMPARISON OF DISCHARGE PERMIT ENFORCEMENT .................................................. 77 6.1 LEGAL BASIS FOR ENVIRONMENTAL LAW ENFORCEMENT IN CHINA ........................................................... 77 6.2 GOVERNMENTAL ENFORCEMENT ACTION .................................................................................................... 85 6.3 USA CWA ENFORCEMENT .......................................................................................................................... 89 CHAPTER 7: A CASE STUDY OF CHINA’S WPDP SYSTEM ...................................................................... 103 7.1: TAIHU POLLUTION IN 2007 ........................................................................................................................ 103 7.2: FAILURE OF THE PERMIT PILOT PROGRAM FOR TAIHU BASIN ................................................................... 105 7.3 THE CASE OF TOWN OF ZHOUTIE (周铁镇) ................................................................................................ 108 7.4 NEW DEVELOPMENTS ................................................................................................................................. 110 CHAPTER 8: CONCLUSIONS AND RECOMMENDATIONS ....................................................................... 111 8.1 SUMMARY OF COMPARISON ....................................................................................................................... 111 8.2 SUMMARY ON ENFORCEMENT OF CHINA’S WPPCL/WPDP ...................................................................... 114 8.3 RECOMMENDATIONS .................................................................................................................................. 116 APPENDIX A1: MAJOR RIVERS IN CHINA ................................................................................................... 118 3 APPENDIX A2: RECENT WATER POLLUTION EVENTS IN CHINA AND LEGAL RESPONSES .......... 119 APPENDIX A3: MAJOR USA FEDERAL POLLUTION CONTROL LAWS ................................................. 120 ABBREVIATIONS .............................................................................................................................................. 121 STATEMENT ...................................................................................................................................................... 122 LEBENSLAUF VON FRAU YUAN YE ............................................................................................................ 123 4 Abstract: In 2008, China enacted the Water Pollution Prevention and Control Law (WPPCL) in response to the severe water quality degradation associated with the rapid economic expansion since the 1980s. Article 20 of the law stipulates the Water Pollution Discharge Permit (WPDP) institution and authorizes the State Council to draft the regulations for its implementation and enforcement. However, until today, national regulations have not been established and the permitting system has been operating according to provincial regulations. The WPPCL has used the Total Effluent Control (TEC) strategy and the discharge allocation method so far as its major instrument. In this framework, a permit serves mainly as a description of waste load allocation. With the TEC strategy, the WPDP has lost its legal deterrence due to the widespread non-compliance with the permit requirements or discharge without permit. The continued deterioration of China’s water quality indicates that the WPPCL has not achieved its objectives. The Clean Water Act (CWA) together with its National Pollutants Discharge Elimination System (NPDES) has been operating in the USA for over 40 years. Although the law has inherent problems, water quality in the USA has significantly improved since the 1970s. The CWA/NPDES employs technology-based standards to set a nationally uniform requirement for point dischargers and water-quality-based standards to ensure the protection of water integrity. Furthermore, enforcement measures are in place to ensure law compliance. The CWA/NPDES experience offers a valuable reference for China’s water permit system. This author is motivated to conduct a comparative study on CWA/NPDES and WPPCL/WPDP. Overall, this author is dedicated to identify concepts and methods that are shown to be feasible and effective in the USA for China’s reconstruction of its water permit system. The differences in legislative design, administrative measures and court decisions of the water pollutants discharge permit system are studied. To understand how to install and adjust the permit system within China’s legal framework is the ultimate aim of this study. It is challenging to compare the laws of two countries as different as the USA and China. The two countries have different social and political structures and different economic priorities. Even for a specific topic, such as the water pollutants discharge permit system,
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