The Environment Agency is to begin using new powers to impose civil sanctions on those found guilty of breaching environmental laws, writes Paul Verrico of Eversheds.
The powers were granted to the regulator last year under the Environmental Civil Sanctions (England) Order 2010 and came into force yesterday (4 January). They will be used to prosecute offenders in cases where the sanctions imposed will result in the damage caused being repaired, and to punish offenders who have generally good compliance records.
The Environment Agency retains the ability to prosecute the most serious offences and serial offenders, as before.
The six new sanctions that it will be able to impose are:
The sanctions may be imposed for offences committed in England after 6 April 2010 but they will not apply to all environmental offences. Initially, they will mostly be used in the hazardous-waste, water-resources and packaging-waste sectors, although it is expected that they will be used more widely in the future. (A list of the offences to which each sanction applies can be found in schedule 5 of the Environmental Civil Sanctions (England) Order 2010.)
The standard of proof for the civil sanctions is the same as that for criminal offences: the Environment Agency must be satisfied beyond reasonable doubt that the person has committed the offence. (The only exception to this rule is for Stop Notices, where the standard of proof is “reasonable belief”. Where a person or company fails to comply with a sanction imposed on them, they can be prosecuted for the original offence.
The new sanctions should mean fewer cases being taken to court, as the Environment Agency will be able to deal with the breaches more efficiently and cost-effectively through the new regime. However, they could also lead to more enforcement activity for low-level breaches because of the new options available to officers.
The Agency cannot use its new powers in areas where there is a co-regulator, such as the HSE, or local authorities. This is likely to be reviewed once the new sanctions have had time to bed in.
The HSE decided in 2008 not to apply for the new sanctions after concluding there was no ‘enforcement gap’ in health and safety regulation, either for itself or for local authorities.
