The legal Q&A is usually to be found in the pages of the CIWM Journal, but today we are bringing it to you online. Regular contributor, Phil Charlesworth, a Barrister and Environmental Scientist, tackles a question about the new enforcement regulations and what they mean…
Q I understand that there will be new enforcement regulations coming out in April this year. Can you please explain what these are and what the implications are?
A It is assumed that the question refers to amendments to The Environmental Permitting (England and Wales) Regulations 2010 (the Regulations) that come into force on 6th April. The Environment Agency’s (EA) option to take civil rather than criminal action will be extended to include certain permitting offences in the form of a mutual agreement between the offender and EA, known as an enforcement undertaking (EU). EUs can now be accepted where there has been a failure to follow environmental permit conditions and/or failure to follow the requirements of a notice served by the EA for breach of an environmental permit in specified circumstances and only applies in England.
EUs aren’t new and can already be accepted for certain offences/potential offences under The Hazardous Waste (England and Wales) Regulations 2005, the Producer Responsibility Obligations (Packaging Waste) Regulations 2007 and The Transfrontier Shipment of Waste Regulations 2007. EUs were introduced under s.50 of the Regulatory Enforcement and Sanctions Act 2008. EUs can also be of benefit to the environment by focusing on putting things right rather than seeking to punish the offender. In practice it is the offender who sets out the terms of the undertaking and offers this to the EA for their acceptance.
An offender/potential offender may offer to carry out the following actions:
- provide a surety that the offence will not continue or recur,
- restore the status quo or make reparations, which may include cleaning up pollution of the environment (unlikely to be accepted where it is in the public interest to prosecute) and where this is not possible securing equivalent benefit or improvement to the environment (i.e. enhancing the biodiversity of an agreed area),
- pay damages or other payments to those affected, which can include consideration of harm to a community affected by the offence.
The EA recommend that an offer should include the following:
- the monitoring and reporting mechanisms the offender will adopt,
- corporate commitment and evidence of participation in the EU including evidence of the provision of clear instruction in order to demonstrate that all staff will adhere to the EU,
- details of a person responsible for the performance of the EU,
- evidence of permanent procedural checking and monitoring mechanisms to prevent future breaches and to ensure that any potential breaches are not only averted but also reported to senior management,
- commitment to an independent audit of the compliance program at regular intervals (usually annually), for a specified period (usually 3 years).
If the EU is accepted, the actions become legally binding and no other enforcement action can be taken by the EA. The EU must be followed at all times until the EA agree to issue a Completion Certificate. It is possible for the EA to issue a certificate without making a site visit as long as the request for the certificate is accompanied by sufficient robust evidence that the EU has achieved the desired result. If the EA do not agree to issue a Completion Certificate, they will serve a Refusal Notice giving reasons for their decision.
The EA can also revoke a Completion Certificate if they have reason to believe that it was granted on the basis of inaccurate, incomplete or misleading information and this could then result in further enforcement action being taken. It is submitted that EUs should not be regarded as a ‘soft option’ to alternative civil sanctions or prosecution. Failure to comply with any part of an EU could result in other civil sanctions being imposed or prosecution for the original offence.
Phil is currently managing Essentia’s waste and environmental division. To contact him email Philip.firstname.lastname@example.org or call 0203 668 1289. Essentia combine exceptionally high standards and public sector values with commercial focus, innovative thinking and modern technology evolving from a successful track record delivering all aspects of health infrastructure including non-clinical services and major projects for acute and primary care organisations. Visit www.essentia.gstt.nhs.uk for more information.