China Environmental Law

When last we addressed the new amendments to the Water Pollution Prevention and Control Act we finished our review of the first set of water discharge standards.

Remember that Article 9 now provides:

Any water pollutant discharge shall not exceed the standards for water pollutant discharge and the total control target for major water pollutant discharge as specified by the State or local governments.

As we discussed, the “standards for water pollutant discharge” are expressed almost exclusively in terms of concentration of pollutants, and are set in most instances above the water quality standards, although they are based, at least in part, upon those standards.

Let’s now turn to the second set of standards: the “total control target for major water pollutant discharge.” Prior to the new amendments, it was clear (old Article 16) that this second type of standard would be applied only:

[w]ith regard to water bodies where the standards for water environment quality established by the State still cannot be attained although the discharge of water pollutants has conformed to the discharge standards, the people’s governments at or above the provincial level may institute a system for control of the total discharge of major pollutants, and a system for making an estimate before deciding on the quantity of major pollutants to be discharged by an enterprise that is charged with the task of reducing its discharge. 

With the new amendments this sequential application of the two standards has been abandoned in favor of what appears to be simultaneous application. 

In contrast to the concentration limits, total control targets for major water pollutant discharge are “mass loading limits.” They are not, however, mass limits derived simply from concentration limits times maximum or average daily flows. It seems that what is contemplated in China (and was contemplated even in old Article 16) is something similar to the Total Maximum Daily Load Program (TMDL) in the US, which calculates the maximum amount of a pollutant that a water body can receive and still meet water quality standards, and an allocation of that amount (in the form of mass loading based discharge limits) to the pollutant’s various sources.

The amendments (as did the old law) clearly contemplate a watershed or water body approach to the development of water pollution control plans which presumably include total control targets for major water pollutants (Article 15). To date, however, I am not aware of anything other than demonstration TMDLs having been developed in China.

In practice, only one “total quantity control limit” has been imposed on a country-wide basis: a mass loading limit on COD (in some specific watersheds additional “total quantity control limits” have been imposed, i.e., for Ammonia (NH₃-N) in the Huai River basin).

The manner in which COD mass loading limits have been developed is rather simplistic. China’s goal, as we have discussed elsewhere, is to reduce total nationwide COD loadings by 10% over 2005 levels by 2010. The national total of COD loadings in 2005 was pegged at 14,140,000 tons. I have no idea how this number was derived. Serious problems in generating accurate data have been noted in the past. Referring to COD figures for the Huai River Basin in 2000, a report prepared for the World Bank by Ma Zhong at the School of Environment and Natural Resources at Renmin University noted (p. 29):

No matter what considerations the local authorities might have for under-reporting or over-reporting [and the report notes several such considerations], SEPA, as the national department,  failed to identify the huge difference between different statistical data for one pollutant [COD] in one basin for the same time period, and did not verify or check the data before reporting them to the State Council and taking them as the basis of planning. This indicated that SEPA not only lacks the ability to obtain real discharge data about pollution sources but also lacks basic ability of data identification and verification. Decision making based on seriously distorted information would inevitably have huge  risks.

Nevertheless, a goal of reducing the 2005 total (however derived) by 10% by 2010 has been set in the 11^th five year Plan. In order to move toward the 2010 national goal of approximately 12,700, 000 tons of COD, each province is assigned a COD reduction target; these targets in turn are pushed down to relevant sub-provincial levels, and ultimately will be allocated to hundreds of thousands of individual dischargers (although the process at this final step can and does vary across regions). 

Article 18 of the new amendments makes the achievement of this reduction goal the key factor in determining success in the battle against water pollution, and explicitly incorporates the “target responsibility system” for local cadres which had only hitherto been referenced in regulations:

The people’s governments of provinces, autonomous regions and municipalities shall reduce and control the total quantity of the discharge of key water pollutants in their respective administrative jurisdictions, and allocate the responsibilities for meeting the requirement for total discharges per annum among city and county people’s governments, pursuant to the document of responsibility for meeting the target of controlling total discharges of pollutants executed with the environmental protection authority of the State Council. City and county people’s governments shall in turn allocate the responsibilities for meeting the requirement for total emissions per annum among units that discharge pollutants pursuant to the specific responsibilities of their respective administrative jurisdictions for the total emission control.

So there you have it: a review of the two types of water discharge standards in China, and that is where we will end it today. We’ll continue this discussion of the new Water Pollution Prevention and Control Act amendments from time to time, so check back often.