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Environment Agency reports on civil sanctions imposed for environmental offences

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Summary: Civil sanctions offer the Environment Agency and those that it regulates an alternative to prosecution (and the fines, costs, reputational damage and criminal record that go with it). The Environment Agency has just reported on the use of civil sanctions this year, including the first application of civil sanctions to environmental permitting offences.

Civil sanctions can be imposed by the Environment Agency (EA) as a sensible and efficient alternative to prosecution in relation to many different environmental offences. 

A number of different civil sanctions are available.  Enforcement undertakings are by far the most popular type.  These are voluntary offers made to the Environment Agency (and accepted by it) by an offender to remedy aspects of an offence that has been committed and, in return, avoid prosecution and all that it entails. 

On 18 August 2016, the EA published a list of cases in which civil sanctions have been imposed for offences between 1 January and 31 July 2016. 

Environmental permitting offences

Enforcement undertakings are the only type of civil sanctions available for offences under the environmental permitting regime.  For the first time since their introduction, the EA has accepted two enforcement undertakings for environmental permitting offences.  Both undertakings were offered for non-compliance with an environmental permit for water discharge activities.  Both undertakings were reactive, in response to an investigation or prosecution.  Both undertakings provided for:

  • actions to improve or come into compliance, such as infrastructure works, operating procedures, improved record keeping, staff training, audits and external testing;
  • the payment of financial contributions (£8,500 to the Westcountry Rivers Trust and £12,000 to be split between the National Trust and the Marine Conservation Society); and
  • the payment of the EA’s costs.

Other environmental offences

The EA’s report shows 16 enforcement undertakings being accepted during the period in connection with offences other than environmental permitting offences.  14 of these related to packaging waste offences.  Overwhelmingly, enforcement undertakings for packaging waste offences were proactive; the offender voluntarily self-reporting the offence in 12 instances.  All undertakings related to the failure to register with a packaging waste compliance scheme or the EA.  They provided for:

  • actions to come into compliance, such as setting up internal compliance processes and appointing staff responsible for compliance;
  • the payment of financial contributions (ranging from £500 to £120,000) with the Woodland Trust as main beneficiary; and
  • the payment of the EA’s costs.

The EA has also accepted two enforcement undertakings for discharges poisonous or injurious to fish, spawn or spawning areas.  Both undertakings were reactive offers which provided for the payment of financial contributions (£500 and £70,000 respectively) as well as the provision of infrastructure works, changes to procedures and the payment of the EA’s costs.

As for other types of civil sanction, it is of note that significantly fewer fixed monetary penalties are recorded for the period in the EA’s report than in the previous reporting period.  The only fixed monetary penalty imposed related to the failure to comply with the conditions of an abstraction licence. 

Conclusion

If a breach of environmental law is discovered, or if an investigation or prosecution is under way, it is well worth considering civil sanctions.  They offer a way to avoid prosecution, potentially large fines, reputational damage and a criminal record.  Time is often of the essence as proactive offers are more likely to be accepted by the EA than reactive ones.    

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