北京市政府采购办法

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山东省政府


山东省小清河水污染防治监督管理办法
山东省政府



第一章 总 则
第一条 为防治小清河污染，保护、改善小清河流域和莱州湾生态环境，保障人民身体健康，促进小清河流域的资源开发和经济建设，根据《中华人民共和国环境保护法》、《中华人民共和国水污染防治法》及其实施细则的有关规定，制定本办法。
第二条 本办法所称小清河流域，系指济南市的槐荫区、天桥区、市中区、历下区、历城区和章丘县，淄博市的周村区、博山区、淄川区、临淄区、张店区和桓台县、高青县，惠民地区的邹平县、博兴县，东营市的广饶县，潍坊市的青州市和寿光县。
在小清河流域内的一切单位和个人都必须遵守本办法。
第三条 山东省小清河环境管理委员会负责小清河水污染防治的统筹规划、督促检查和组织协调工作。
省环境保护行政主管部门对小清河水污染防治实施统一监督管理。
小清河流域内的市（地）、县（市、区）环境保护行政主管部门，对本辖区内的小清河水污染防治实施统一监督管理。
省交通部门的航政机关和小清河流域内的有关市（地）、县（市、区）的交通部门的航政机关，对小清河河道内的船舶污染实施监督管理。
省和小清河流域内的市（地）、县（市、区）的水利、水产、卫生、地质矿产、市政管理等行政主管部门，结合自己的职责，协同环境保护行政主管部门对本辖区内的小清河水污染防治实施监督管理。
第四条 小清河流域内的市（地）、县（市、区）的环境保护行政主管部门，应当根据省环境保护委员会通过的《小清河流域水质污染防治实施规划》编制本辖区的防治规划，并将其纳入同级人民政府的国民经济和社会发展计划。
第五条 小清河流域内的一切单位和个人都有责任保护小清河水环境，并有权对污染和损害水环境的行为进行监督和检举。

第二章 监督管理
第六条 小清河流域内的各级人民政府及其有关部门在开发、利用小清河水系水资源时，应当统筹兼顾，维护小清河干、支流的合理流量，保持水体的自然净化能力。
第七条 省政府有关部门和小清河流域内的各级人民政府应当依据小清河水质污染防治规划，采取限期治理重点污染源、兴建城市综合污水处理厂、引黄济河等综合性防治污染措施，逐步减少小清河的废水和污染物排入量，改善和恢复生态环境。
第八条 直接或间接向小清河干、支流河道，小清河流域内的湖泊、水库、水渠（以下统称小清河水体）排放污染物的建设项目，必须遵守国家和省有关建设项目环境保护管理办法的规定。在水利部门管理的河道、湖泊、水库、水渠等水利工程内设置排污口，应经过有关水利工程管理
部门的同意。
第九条 对小清河河道实行水污染物断面总量控制，具体办法由省环境保护行政主管部门另行规定。
第十条 小清河流域内的各级环境保护行政主管部门，对本辖区向小清河水体直接或间接排污的单位，实行排污许可证制度。
不超过国家或省规定的污染物排放标准及排放总量指标的，由环境保护行政主管部门发给排污许可证；超过的，应当限期治理，限期治理期间发给临时排污许可证。
排污许可证的发放管理办法按照国务院环境保护行政主管部门的有关规定执行。
第十一条 被责令限期治理的排污单位，应当定期向环境保护行政主管部门报告治理进度。环境保护行政主管部门应当定期检查排污单位的治理情况，对已完成的项目及时进行验收，并向同级人民政府报告验收结果。
第十二条 小清河流域内的排污单位发生事故或其它突然性事件，排放污染物超过正常排放量，造成或可能造成小清河水污染事故的，除依照《中华人民共和国水污染防治法实施细则》第十五条的规定处理外，该排污单位所在市（地）的环境保护行政主管部门应当立即告知下游可能受
到污染危害的市（地），同时向小清河环境管理委员会办公室报告，并积极采取补救措施，尽可能减少污染危害。

第三章 防止水体污染
第十三条 小清河流域内的各级人民政府及其有关部门应当采取种树种草、护岸护坡等水土保持措施，保护小清河水体。
第十四条 在小清河水体中进行水底挖掘、开采矿产、敷设电缆管道等工程建设时，应当采取措施，防止污染水体。
第十五条 在小清河流域内，应当合理施用化肥、农药，防止对土壤和水体的污染。
第十六条 禁止向小清河水体倾倒和在堤坝、滩地上堆放、存贮固体废弃物和其它污染物。
第十七条 禁止向小清河水体排放油类、酸液、碱液或者有毒废液。
第十八条 禁止在小清河水体清洗装贮过油类或者有毒污染物的车辆和容器。
第十九条 进入小清河的船只，应当备有污染物贮存器，禁止向水体排放和倾倒污染物。

第四章 奖励和处罚
第二十条 对严格执行本办法，在小清河水污染防治工作中有显著贡献的单位和个人，由有关部门或者人民政府给予奖励。
第二十一条 对违反本办法的单位和个人，由环境保护行政主管部门或者其它有监督管理权的部门依照《中华人民共和国水污染防治法》及其实施细则的有关规定给予处罚。
第二十二条 当事人对行政处罚决定不服的，可以在接到处罚通知之日起十五日内，向作出处罚决定的机关的上一级机关申请复议；对复议决定不服的，可以在接到复议决定之日起十五日内，向人民法院起诉。当事人也可以在接到处罚通知之日起十五日内，直接向人民法院起诉。当事
人逾期不申请复议、也不向人民法院起诉、又不履行处罚决定的，由作出处罚决定的机关申请人民法院强制执行。
第二十三条 造成小清河水环境污染危害的，有责任排除危害，并对直接受到损害的单位或者个人赔偿损失。
赔偿责任和赔偿金额的纠纷，可以根据当事人的请求，由环境保护行政主管部门或者其它依照规定行使监督权的部门处理；当事人对处理决定不服的，可以向人民法院起诉。当事人也可以直接向人民法院起诉。
完全由于不可抗拒的自然灾害，并经及时采取合理措施，仍然不能避免造成污染损害的，免予承担责任。
第二十四条 环境保护监督管理人员滥用职权、玩忽职守、徇私舞弊的，由其所在单位或者上级主管机关给予行政处分；构成犯罪的，依法追究刑事责任。

第五章 附 则
第二十五条 本办法由省环境保护行政主管部门负责解释。
第二十六条 本办法自一九九一年二月一日起施行。



1991年1月11日
Chapter IV
Function of Panels: Art. 11 of the DSU


OUTLINE


I Introduction
II Application of Art. 11 as a General Standard of Review
III Review in “neither de novo nor total defence”
IV Allegation against Panels’ Standard of Review
V Exercise of Judicial Economy





I Introduction
The function of panels is expressly defined in Art. 11 of the DSU, which reads as follows:

“The function of panels is to assist the DSB in discharging its responsibilities under this Understanding and the covered agreements. Accordingly, a panel should make an objective assessment of the matter before it, including an objective assessment of the facts of the case and the applicability of and conformity with the relevant covered agreements, and make such other findings as will assist the DSB in making the recommendations or in giving the rulings provided for in the covered agreements. Panels should consult regularly with the parties to the dispute and give them adequate opportunity to develop a mutually satisfactory solution.”

This provision suggests that the function of panels is to make an objective assessment such as to assist the DSB in making the recommendations or in giving the rulings provided for in the covered agreements. However, how do panels fulfill their functions as provided in Art. 11 of the DSU? It is the issue that we will touch on in this chapter. In this chapter, the author explores on the standard of review issue under the WTO, i.e. “an objective assessment”; as well as on the exercised judicial economy principle developed in panel’s review.
With regard to the standard of review issue, the GATT/WTO dispute settlement procedures have increasingly confronted questions concerning the degree to which an international body, under the GATT/WTO, should “second guess” a decision of a national government agency concerning economic regulations that are allegedly inconsistent with an international rule. It seems clear that the international agreement doesn’t permit a national government’s determination always to prevail, otherwise the international rules could be easily evaded or rendered ineffective. But should the international body approach the issues involved without any deference to the national government? It has been argued in the GATT/WTO proceedings that panels should respect national government determinations, up to some point. That “point” is the crucial issue that has sometimes been labelled the “standard of review”.1
Of course, this issue is not unique to the GATT/WTO. Naturally, the standard-of-review issue is one that many legal systems face. “The standard-of-review question is faced at least implicitly whenever sovereign members of a treaty yield interpretive and dispute settlement powers to international panels and tribunals. Moreover, as national economies become increasingly interdependent, and as the need for international cooperation and coordination accordingly becomes greater, the standard-of-review question will become increasingly important.” 2 And “it can be seen that the standard-of-review question is a recurring and delicate one, and one that to some extent goes to the core of an international procedure that must (in a rule-based system) assess a national government’s actions against treaty or other international norms”. 3
However, for the immediate purpose, we want to focus below on the more particular question of the proper standard of review for a WTO panel when it undertakes to examine a national government’s actions or rulings that engage the question of consistency with the various WTO agreements and are subject to the DSU procedures.

II Application of Art. 11 as a General Standard of Review
Under the WTO jurisprudence, it’s demonstrated that Art. 11 of the DSU has been applied as a general standard of review. Art. 11 suggests that the function of panels is to make “an objective assessment” so as to assist the DSB in making the recommendations or in giving the rulings provided for in the covered agreements.
For example, in US-Shirts and Blouses (DS33), the Panel rules that, “although the DSU does not contain any specific reference to standards of review, we consider that Article 11 of the DSU which describes the parameters of the function of panels, is relevant here”. 4
And the application of Art. 11 as a general standard of review under the DSU is analyzed systematically in EC-Hormones (DS26/DS48) where the Appellate Body rules that: 5
“The first point that must be made in this connection, is that the SPS Agreement itself is silent on the matter of an appropriate standard of review for panels deciding upon SPS measures of a Member. Nor are there provisions in the DSU or any of the covered agreements (other than the Anti-Dumping Agreement) prescribing a particular standard of review. Only Article 17.6(i) of the Anti-Dumping Agreement has language on the standard of review to be employed by panels engaged in the ‘assessment of the facts of the matter’. We find no indication in the SPS Agreement of an intent on the part of the Members to adopt or incorporate into that Agreement the standard set out in Article 17.6(i) of the Anti-Dumping Agreement. Textually, Article 17.6(i) is specific to the Anti-Dumping Agreement.
[…]
We do not mean, however, to suggest that there is at present no standard of review applicable to the determination and assessment of the facts in proceedings under the SPS Agreement or under other covered agreements. In our view, Article 11 of the DSU bears directly on this matter and, in effect, articulates with great succinctness but with sufficient clarity the appropriate standard of review for panels in respect of both the ascertainment of facts and the legal characterization of such facts under the relevant agreements […]”
In sum, for all but one of the covered agreements, Art. 11 of the DSU sets forth the appropriate standard of review for panels. As stated on more than one occasion, Art. 11 of the DSU, and, in particular, its requirement that “a panel should make an objective assessment of the matter before it, including an objective assessment of the facts of the case and the applicability of and conformity with the relevant covered agreements”, sets forth the appropriate standard of review for panels examining the consistency or inconsistency of alleged measures under the WTO jurisprudence. And the only exception is the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994, in which a specific provision, Art. 17.6, sets out a special standard of review for disputes arising under that Agreement（to be discussed in subsequent chapter）.6

III Review in “neither de novo nor total defence”
In EC-Hormones (DS26/DS48), in the view of the European Communities, “the principal alternative approaches to the problem of formulating the ‘proper standard of review’ so far as panels are concerned are two-fold. The first is designated as ‘de novo review’. This standard of review would allow a panel complete freedom to come to a different view than the competent authority of the Member whose act or determination is being reviewed. A panel would have to ‘verify whether the determination by the national authority was…correct (both factually and procedurally)’. The second is described as ‘deference’. Under a ‘deference’ standard, a panel, in the submission of the European Communities, should not seek to redo the investigation conducted by the national authority but instead examine whether the ‘procedure’ required by the relevant WTO rules had been followed”.7 In this respect, the Appellate Body rules that:8
“So far as fact-finding by panels is concerned, their activities are always constrained by the mandate of Article 11 of the DSU: the applicable standard is neither de novo review as such, nor ‘total deference’, but rather the ‘objective assessment of the facts’. Many panels have in the past refused to undertake de novo review, wisely, since under current practice and systems, they are in any case poorly suited to engage in such a review. On the other hand, ‘total deference to the findings of the national authorities’, it has been well said, ‘could not ensure an 'objective assessment' as foreseen by Article 11 of the DSU’.”
The ruling is confirmed on many other occasions. For example, the Panel on US-Underwear (DS24) finds that: 9
“In our opinion, a policy of total deference to the findings of the national authorities could not ensure an ‘objective assessment’ as foreseen by Article 11 of the DSU. This conclusion is supported, in our view, by previous panel reports that have dealt with this issue, and most notably in the panel report on the ‘Transformers’ case.
The panel in the ‘Transformers’ case was confronted with the argument of New Zealand that the determination of ‘material injury’ by the competent New Zealand investigating authority could not be scrutinized by the panel. The ‘Transformers’ panel responded to this argument as follows:
‘The Panel agreed that the responsibility to make a determination of material injury caused by dumped imports rested in the first place with the authorities of the importing contracting party concerned. However, the Panel could not share the view that such a determination could not be scrutinized if it were challenged by another contracting party. On the contrary, the Panel believed that if a contracting party affected by the determination could make a case that the importation could not in itself have the effect of causing material injury to the industry in question, that contracting party was entitled, under the relevant GATT provisions and in particular Article XXIII, that its representations be given sympathetic consideration and that eventually, if no satisfactory adjustment was effected, it might refer the matter to the CONTRACTING PARTIES, as had been done by Finland in the present case. To conclude otherwise would give governments complete freedom and unrestricted discretion in deciding anti-dumping cases without any possibility to review the action taken in the GATT. This would lead to an unacceptable situation under the aspect of law and order in international trade relations as governed by the GATT’.”
In short, for the panel to adopt a policy of total deference to the findings of the national authorities could not ensure an “objective assessment” as foreseen by Art. 11 of the DSU. This conclusion is supported, in our view, by previous panel reports that have dealt with this issue. However, panels do not see their review as a substitute for the proceedings conducted by national investigating authorities, either. For example, in Argentina-Footwear (DS121), the Panel doesn’t consider that they have the mandate to conduct a de novo review: 10
“This approach is consistent with the reports of panels reviewing national investigations… The panel on United States - Anti-dumping Duties on Import of Salmon from Norway concluded that it should not engage in a de novo review of the evidence examined by the national investigating authority.
The panel on United States - Underwear followed this approach by noting, however, that it did not see its ‘review as a substitute for the proceedings conducted by national investigating authorities or by the Textiles Monitoring Body (TMB). Rather…the Panel's function should be to assess objectively the review conducted by the national investigating authority, in this case the CITA. We draw particular attention to the fact that a series of panel reports in the anti-dumping and subsidies/countervailing duties context have made it clear that it is not the role of panels to engage in a de novo review. In our view, the same is true for panels operating in the context of the ATC, since they would be called upon, as in the cases dealing with anti-dumping and/or subsidies/countervailing duties, to review the consistency of a determination by a national investigating authority imposing a restriction under the relevant provisions of the relevant WTO legal instruments, in this case the ATC. …’
Accordingly, the panel on United States - Underwear decided, ‘in accordance with Article 11 of the DSU, to make an objective assessment of the Statement issued by the US authorities … which, as the parties to the dispute agreed, constitutes the scope of the matter properly before the Panel without, however, engaging in a de novo review. … an objective assessment would entail an examination of whether the CITA had examined all relevant facts before it, whether adequate explanation had been provided of how the facts as a whole supported the determination made, and, consequently, whether the determination made was consistent with the international obligations of the United States’.
The panel on United States - Shirts and Blouses also stated that ‘[t]his is not to say that the Panel interprets the ATC as imposing on the importing Member any specific method either for collecting data or for considering and weighing all the relevant economic factors upon which the importing Member will decide whether there is need for a safeguard restraint. The relative importance of particular factors including those listed in Article 6.3 of the ATC is for each Member to assess in the light of the circumstances of each case’.
These past GATT and WTO panel reports make it clear that panels examining national investigations in the context of the application of anti-dumping and countervailing duties, as well as safeguards under the ATC, have refrained from engaging in a de novo review of the evidence examined by the national authority.”
However, as emphasized by the Appellate Body, although panels are not entitled to conduct a de novo review of the evidence, nor to substitute their own conclusions for those of the competent authorities, this does not mean that panels must simply accept the conclusions of the competent authorities. In this respect, the phrase “de novo review” should not be used loosely. If a panel concludes that the competent authorities, in a particular case, have not provided a reasoned or adequate explanation for their determination, that panel has not, thereby, engaged in a de novo review. Nor has that panel substituted its own conclusions for those of the competent authorities. Rather, the panel has, consistent with its obligations under the DSU, simply reached a conclusion that the determination made by the competent authorities is inconsistent with the specific requirements of the covered Agreement. 11