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January 5, 2011

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Environmental law-breakers to face new sanctions

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:

  • Fixed Monetary Penalty – A low-level fine (£100 for an individual and £300 for a corporate body), which can be imposed for certain specified offences; 
  • Variable Monetary Penalty – This can be imposed for more serious offences. The penalty must be proportionate to the offence and must not exceed £250,000 (or the level of fine that could be imposed by the courts, whichever is lower);
  • Compliance Notice – A written notice, which requires the offender to comply with the law within a specified period of time;
  • Restoration Notice – A written notice, which requires the offender to take steps, within a specified timeframe, to restore, as far as is possible, land damaged as a result of a breach of environmental law;
  • Stop Notice – A written notice, which prohibits the offender from carrying out an activity that is causing, or which is at significant risk of causing, serious harm to human health, or to the environment; and
  • Enforcement Undertaking – Where an offender makes an offer to take steps that would make amends for its non-compliance with environmental law and prevent the non-compliance from continuing, or reoccurring, the Environment Agency will be able to accept a written undertaking from the offender that it will take such steps. The written undertaking will be binding.

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.

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