With the widespread application of automatic monitoring equipment, the demand for whether automatic monitoring data can be used as enforcement evidence to determine whether a company meets emission standards is becoming increasingly common in the field of ecological environment law enforcement. However, there has been controversy over whether automatic monitoring data can be used as evidence for law enforcement in the past due to insufficient legal basis.

The newly revised "Administrative Penalty Measures for Ecological Environment" (hereinafter referred to as the new "Penalty Measures"), which was just revised last year, modified the original method from "effective data recognized by the environmental protection department can be used as evidence for determining illegal facts" to "marked automatic monitoring data can be used as evidence for determining case facts". This means that automatic monitoring data has a legal basis as evidence for law enforcement, which is of great significance for promoting non site regulatory law enforcement mainly based on automatic monitoring of pollution sources.

So, what is' labeled automatic monitoring data '?

In July 2022, the Ministry of Ecology and Environment issued the "Marking Rules for Automatic Monitoring Equipment of Pollutant Emissions" (hereinafter referred to as the "Marking Rules"), requiring polluting units to mark the corresponding time periods that generate automatic monitoring data based on the operation and data transmission network status of the automatic monitoring equipment, and confirm the validity of the automatic monitoring data.

Automatic monitoring equipment labeling is divided into automatic labeling and manual labeling. Automatic tagging refers to the operation of automatic monitoring equipment or automatic monitoring system enterprise server with automatic tagging function, which automatically generates corresponding tagging content according to tagging rules. Manual marking refers to the operation of the authorized person of the pollutant discharge unit to manually judge the operation and data transmission network status of the automatic monitoring equipment, and fill in the corresponding marking content according to the marking rules on the enterprise server of the automatic monitoring system. That is to say, polluting units are required to promptly mark the corresponding time periods during which automatic monitoring data is generated in accordance with relevant automatic monitoring data marking rules if their automatic monitoring equipment malfunctions, maintains, debugs, or if their production facilities, pollution prevention and control facilities experience abnormal operating conditions such as start stop and malfunction, resulting in abnormal data transmission or excessive pollutant emissions.

Carrying out data tagging provides a more convenient and efficient way for polluting units to report abnormal data, raise objections and appeals, and self certify compliance using information technology.

The automatic monitoring data labeling rules include the "Equipment Labeling Rules for Pollutant Emission Automatic Monitoring Equipment" (hereinafter referred to as the "Equipment Labeling Rules") and the operating condition labeling rules for production facilities and pollution prevention and control facilities in different industries (hereinafter referred to as the "Operating Condition Labeling Rules").

The Ministry of Ecology and Environment plans to establish a "1+N" automatic monitoring data labeling rule system to guide polluting units to actively, truthfully, and timely report. Among them, "1" is the device tagging rule. 'N' is the working condition marking rule.

The "Rules for Automatic Monitoring Data Marking of Domestic Waste Incineration Power Plants" (Announcement No. 50 of 2019 by the Ministry of Ecology and Environment) is the currently released working condition marking rule. Working condition marking rules for other industries are being explored and studied, and will be released when conditions are ripe. Automatic monitoring data marked as invalid according to equipment labeling rules shall not be used as a basis for determining whether pollutant emissions exceed relevant standards. According to the operating condition marking rules, if the production facilities and pollution prevention facilities are marked as abnormal operating conditions and meet the requirements of ecological environment protection standards and normative documents, the automatic monitoring data within the limited time of abnormal operating conditions shall not be used as the basis for determining whether the pollutant emissions exceed the standards.

The automatic monitoring data labeling rules are based on the experience of non site supervision and law enforcement in the application of automatic monitoring in the waste incineration power generation industry in recent years, as well as the pilot implementation of automatic monitoring data labeling in typical industries such as thermal power, cement, and papermaking.

Therefore, based on recent practical experience, the new "Punishment Measures" require in Article 30 that "polluting units shall be responsible for the authenticity and accuracy of automatic monitoring data in accordance with the law, and shall not tamper with or forge", and require polluting units in industries that implement automatic monitoring data labeling rules to label data in accordance with the regulations of the Ministry of Ecology and Environment. Then clarify that "automatically monitored data that has been marked can be used as evidence to determine the facts of the case

Clearly labeled automatic monitoring data can serve as evidence for law enforcement, reflecting the principle of balancing leniency and strictness in ecological environment law enforcement. On the one hand, the objective reality of data loss or invalidity that is difficult to avoid during the debugging and operation of automatic monitoring equipment has been fully considered, and subjective faults of non polluting units have been excluded as much as possible. On the other hand, it is clear that tagging content is an important component of automatic monitoring data. Although tagging does not modify the original monitoring data, it can affect the validity of the data. Using rules to maliciously falsely tag and falsely report abnormal situations can be considered as evading supervision. This will be beneficial in guiding polluting units to continuously improve their environmental management level and proactively control the quality of automatic monitoring data.

In law enforcement practice, there is also a question about the effectiveness of automatic monitoring data, which has long plagued law enforcement personnel. When on-site monitoring data is inconsistent with automatic monitoring data, which one should be used as evidence for law enforcement.

In 2016, the Ministry of Ecology and Environment issued a response to the issue of evidence application when pollution source online monitoring data is inconsistent with on-site monitoring data, which stated that "on-site monitoring can be regarded as comparative monitoring of enterprise online monitoring equipment. If the on-site monitoring data at the same time period is inconsistent with the online monitoring data that has been verified for effectiveness, and the on-site monitoring data meets the legal monitoring standards and methods, the on-site monitoring data shall be used as priority evidence

Therefore, the new "Punishment Measures" clarify in Article 30 that "if the on-site monitoring (testing) data during the same period is inconsistent with the automatic monitoring data, and the on-site monitoring (testing) meets the legal monitoring standards and methods, the on-site monitoring (testing) data shall be used as evidence to determine the facts of the case

The new "Punishment Measures" meet the needs of law enforcement practice, refine the rules for monitoring data as evidence, provide legal basis for automatic monitoring data as law enforcement evidence, further standardize the application of automatic monitoring data in environmental law enforcement, and promote non site supervision and law enforcement mainly based on automatic monitoring of pollution sources, which is of great significance.