Draft Law Extends Civil Sanctions to Environmental Permitting Offences.

Currently Enforcement Undertakings (EU) cannot be accepted by the Environment Agency (EA) for pollution offences under the Environmental Permitting (England and Wales) Amendment Regulations 2010.  For the estimated 90,000 permitted sites the Agency in the event of a pollution incident occurring has few or no alternatives to perusing legal action.   The extension of Enforcement Undertakings to Environmental Permitting Offences will provide the Agency with a greater degree of flexibility in formally responding to pollution incidents.  (The proposed changes are currently due to come into effect in England in April 2015).  The proposed changes will allow the agency to offer a proportionate response to be made in response to the pollution incident to be made.

At the present time Civil Sanctions can only be applied to water pollution offences where the incident has been investigated by the Agency under alternative legislation.  For example:

  • Salmon and Freshwater Fisheries Act 1975.  Includes provision to deal with problems of pollution making it an offence to knowingly permit the flow of poisonous matter and polluting effluents into river Courses.  (Editor see article “First Enforcement Undertaking Accepted from Water Company – Click Here).

Speaking in the House of Lords, former Resource Minister Lord de Mauley stated:

“For some cases prosecution and cautions can be heavy handed and slow.  Currently there is not a proportionate alternative for offences under the Environmental Permitting (England and Wales) Amendment Regulation 2010.”

Whilst the Agency will still retain the option of prosecuting the worst offenders and those companies who repeatedly offend.  The acceptance of an Enforcement undertaking would be an appropriate response for instances involving people/companies which are normally compliant and are endeavouring to operate their business in a compliant manner and who importantly must also be willing to make operational improvements to prevent a similar incident from reoccurring; leading to an improvement in the environmental performance of their business.

As an example of how the amendment could work in practice de Mauley presented the following scenario:

“If a company with high environmental performance standards accidently pollutes a river with sediment run-off from an on-site development project, the company rather than being subject to prosecution, could in the future offer an enforcement undertaking.”

“That offer might explain how the company would prevent the offence from happening again, perhaps by changing procedure and also perhaps by making a board member responsible for future development projects and environmental performance as a whole.”

“The enforcement undertaking would also quantify the environmental harm that could be caused and propose investment to that value, perhaps to a local environmental project that works to improve the river that had been polluted.”

“If the offender’s compliance history has previously been good, the offence was not foreseeable, and the environmental effect was minor, it may be appropriate for the Agency to accept an enforcement undertaking”

The extension of enforcement undertaking to permitting offences will prevent the Agency from having to respond in a disproportionate manner, and free up the Agency’s resources.  Enabling the Agency to focus the resource intensive response of pursuing a criminal prosecution for the most serious offences.

Watery-News 29th Jan 2014