New Regulations were introduced in 2010 in England and Wales under The Regulatory Enforcement and Sanctions Act that give the EA and Natural England powers to apply certain sanctions without having to resort to prosecution.
- The Environmental Civil Sanctions (England) Order 2010 (for mainly water related offences)
- The Environmental Civil Sanctions (Miscellaneous Amendments) (England) Regulations 2010 (for mainly waste related offences)
The Environment Agency started using these powers from 4 January 2011.
Four key sanctions that are provided through the Regulations are:
- Fixed monetary penalty (FMP) notices – under which a regulator will be able to impose a monetary penalty of a fixed amount of £300 on a business;
- Discretionary requirements – which will enable a regulator to impose, by notice, one or more of the following:
- a variable monetary penalty (VMP) determined by the regulator, but up to a maximum of £250k per offence. These cannot be backdated prior to dates the Regulations were introduced (above);
- a requirement to take specified steps within a stated period to secure that an offence does not continue or happen again (compliance notice); and
- a requirement to take specified steps within a stated period to secure that the position is restored, so far as possible, to what it would have been if no offence had been committed (restoration notice);
- Stop notices – which will prevent a business from carrying on an activity described in the notice until it has taken steps to come back into compliance;
- Enforcement undertakings – which will enable a business, which a regulator reasonably suspects of having committed an offence, to give an undertaking to a regulator to take one or more corrective actions set out in the undertaking.
Defra have published Guidance on how they will be used, including the list of Regulations that they relate to.
Initially, for waste, this will just be the Packaging Regs and the Haz Waste Regs. It is expected that at some stage, the Environmental Permitting Regulations will be added to the list.
The EA have made clear that for Packaging Regulations offences – where it is usual for non-registration offences prior to 2010 to have to be considered – they will expect Enforcement Undertakings (EU) to be the most commonly used Civil Sanction.
For any company facing EA iunvestigation for non-registration, it is likely that they will be able to offer an EU to avoid facing prosecution. Under an EU, the company will be expected to:
- Cease offending (register)
- Ensure it doesn’t happen again (training, process implementation, Board commitment)
- Put forward monetary compensation for savinfgs that have been achieved by not going for prosecution (avoided costs, legal fees etc)
The offender would have to offer to pay the compensation to an environmental good cause of their choice, but can’t be seen to benefit.
The EA can refuse to accept an EU if they do not feel that enough (on all three counts) has been offered.
The EA publish a list of Enforcement Undertakings offer agreed.
SEPA publish a list of Enforcement Undertakings but they are used on a far more limited basis.
If you need help with Enforcement Undertakings, 360 Environmental can provide full support to put together the offer and negotiate with the EA.
For more information: