Policy Paper Updated 21st Feb 2024
EPR can be used for offences related to regulated facilities, including waste operations, water discharge activities and flood risk activities.
For waste operations, charges can be brought either under the Environmental Permitting (England and Wales) Regulations 2016 or the Environmental Protection Act 1990. You will need to discuss which is most appropriate with your legal department.
For offences relating to water discharge activities or groundwater activities we will normally use Regulation 38(1)(a) and refer back to Regulation 12(1)(b).
Enforcement undertakings are available for some EPR offences including:
- some waste and water offences committed on or after 6 April 2015
- flood risk activity offences committed on or after 30 January 2018
Variable monetary penalties are available for some EPR offences committed on or after 11 December 2023.
Enforcement undertakings and variable monetary penalties may not be available for the same offences.
1. Operating without or other than in accordance with a permit
Regulation 38(1)(a) EPR (referring back to Regulation 12(1)):
Cause or knowingly permit a water discharge activity or groundwater activity – operating a regulated facility, an installation or mobile plant and carrying on a waste operation, mining waste operation, radioactive substances activity, water discharge activity, groundwater activity or flood risk activity except under and to the extent authorised by an environmental permit.
This offence includes any waste operation carried on without complying with the criteria of a relevant exemption (including not satisfying Article 4(1) of the Waste Framework Directive objectives or not being registered and so on (see Regulation 5 and Schedules 2 and 3 EPR)).
The standard criminal and offence specific responses are:
- warning
- formal caution
- prosecution
The civil sanction we can impose is:
- variable monetary penalty
The civil sanction which can be offered is:
- enforcement undertaking
There are relevant commencement dates for:
- enforcement undertakings – they’re only available for offences committed on or after the relevant commencement dates set out in the introduction of this guide
- variable monetary penalties – they’re only available for offences committed on or after the relevant commencement dates set out in the introduction of this guide
- enforcement responses in relation to flood risk activities under Environmental Permitting (England and Wales) Regulations 2016 – they’re only available for offences which have occurred after 6 April 2016
Regulation 38(1)(b) EPR (referring back to Regulation 12(1)):
Knowingly cause or knowingly permit the operation of a regulated facility or carrying on a waste operation, mining waste operation, radioactive substances activity, flood risk activity, water discharge or groundwater activity, except under and to the extent authorised by an environmental permit.
The standard criminal and offence specific responses are:
- warning
- formal caution
- prosecution
The civil sanction we can impose is:
- variable monetary penalty
The civil sanction which can be offered is:
- enforcement undertaking
There are relevant commencement dates for:
- enforcement undertakings – they’re only available for offences committed on or after the relevant commencement dates set out in the introduction of this guide
- variable monetary penalties – they’re only available for offences committed on or after the relevant commencement dates set out in the introduction of this guide
- enforcement responses in relation to flood risk activities under Environmental Permitting (England and Wales) Regulations 2016 – they’re only available for offences which have occurred after 6 April 2016
2. Failing to comply with a permit
Regulation 38(2):
Fail to comply with or contravene a permit condition.
The standard criminal and offence specific responses are:
- warning
- formal caution
- prosecution
The civil sanction we can impose is:
- variable monetary penalty
The civil sanction which can be offered is:
- enforcement undertaking
There are relevant commencement dates for:
- enforcement undertakings – they’re only available for offences committed on or after the relevant commencement dates set out in the introduction of this guide
- variable monetary penalties – they’re only available for offences committed on or after the relevant commencement dates set out in the introduction of this guide
- enforcement responses in relation to flood risk activities under Environmental Permitting (England and Wales) Regulations 2016 – they’re only available for offences which have occurred after 6 April 2016
3. False or misleading information
Regulation 38(4)(b):
Knowingly or recklessly make a statement which is false or misleading for one of the following:
- in purported compliance with a requirement to provide information imposed by or under these Regulations
- for a permit application, transfer, renewal, variation or surrender
- for obtaining, renewing or amending the registration of an exempt facility
The standard criminal and offence specific responses are:
- warning
- formal caution
- prosecution
The civil sanction we can impose is:
- variable monetary penalty
There are relevant commencement dates for:
- variable monetary penalties – they’re only available for offences committed on or after the relevant commencement dates set out in the introduction of this guide
- enforcement responses in relation to flood risk activities under Environmental Permitting (England and Wales) Regulations 2016 – they’re only available for offences which have occurred after 6 April 2016
Regulation 38(4)(c):
Intentionally make a false entry in a record required to be kept under an environmental permit condition.
The standard criminal and offence specific responses are:
- warning
- formal caution
- prosecution
The civil sanction we can impose is:
- variable monetary penalty
There are relevant commencement dates for:
- variable monetary penalties – they’re only available for offences committed on or after the relevant commencement dates set out in the introduction of this guide
- enforcement responses in relation to flood risk activities under Environmental Permitting (England and Wales) Regulations 2016 – they’re only available for offences which have occurred after 6 April 2016
Regulation 38(4)(d):
With intent to deceive through one of the following:
- to forge or use a document issued or authorised to be issued or required for any purpose under any permit condition
- to make or have in their possession a document so closely resembling such a document as to be likely to deceive
The standard criminal and offence specific responses are:
- warning
- formal caution
- prosecution
The civil sanction we can impose is:
- variable monetary penalty
There are relevant commencement dates for:
- variable monetary penalties – they’re only available for offences committed on or after the relevant commencement dates set out in the introduction of this guide
- enforcement responses in relation to flood risk activities under Environmental Permitting (England and Wales) Regulations 2016 – they’re only available for offences which have occurred after 6 April 2016
4. Exemptions
Regulation 38(5)(a):
Establishment or undertaking fails to comply with paragraph 14(3) or (4) of Schedule 2 by failing to keep required records and make them available to us on request.
Summary only. The standard criminal and offence specific responses are:
- warning
- formal caution
- prosecution
The civil sanction we can impose is:
- variable monetary penalty
The civil sanction which can be offered is:
- enforcement undertaking
There are relevant commencement dates for:
- enforcement undertakings – they’re only available for offences committed on or after the relevant commencement dates set out in the introduction of this guide
- variable monetary penalties – they’re only available for offences committed on or after the relevant commencement dates set out in the introduction of this guide
- enforcement responses in relation to flood risk activities under Environmental Permitting (England and Wales) Regulations 2016 – they’re only available for offences which have occurred after 6 April 2016
Regulation 38(5)(b):
Intentionally make a false entry in a record required to be kept under paragraph 14(3) or (4) of Schedule 2.
Summary only. The standard criminal and offence specific responses are:
- warning
- formal caution
- prosecution
The civil sanction we can impose is:
- variable monetary penalty
There are relevant commencement dates for:
- variable monetary penalties – they’re only available for offences committed on or after the relevant commencement dates set out in the introduction of this guide
- enforcement responses in relation to flood risk activities under Environmental Permitting (England and Wales) Regulations 2016 – they’re only available for offences which have occurred after 6 April 2016
5. Notice non-compliance
Regulation 38(3):
To fail to comply with the requirements of an enforcement notice (under Regulation 36), a prohibition notice (under paragraph 9, Schedule 22), a suspension notice (Regulation 37), a mining waste facility closure notice (Schedule 20, paragraph 10), a landfill closure notice (Schedule 10, paragraph 10), a flood risk activity emergency works notice (Schedule 25, paragraph 7) or a flood risk activity remediation notice (Schedule 25, paragraph 8).
The standard criminal and offence specific responses are:
- warning
- formal caution
- prosecution
The civil sanction we can impose is:
- variable monetary penalty
There are relevant commencement dates for:
- variable monetary penalties – they’re only available for offences committed on or after the relevant commencement dates set out in the introduction of this guide
- enforcement responses in relation to flood risk activities under Environmental Permitting (England and Wales) Regulations 2016 – they’re only available for offences which have occurred after 6 April 2016
Regulation 38(4)(a):
Fail to comply with a Regulation 61(1) information notice.
The standard criminal and offence specific responses are:
- warning
- formal caution
- prosecution
The civil sanction we can impose is:
- variable monetary penalty
The civil sanction which can be offered is:
- enforcement undertaking
There are relevant commencement dates for:
- enforcement undertakings – they’re only available for offences committed on or after the relevant commencement dates set out in the introduction of this guide
- variable monetary penalties – they’re only available for offences committed on or after the relevant commencement dates set out in the introduction of this guide
- enforcement responses in relation to flood risk activities under Environmental Permitting (England and Wales) Regulations 2016 – they’re only available for offences which have occurred after 6 April 2016
Regulation 38(6):
Criminal liability of a person whose act or default causes another person to commit an offence.
The standard criminal and offence specific responses are:
- warning
- formal caution
- prosecution
The civil sanction which can be offered is:
- enforcement undertaking
There are relevant commencement dates for:
- enforcement undertakings – they’re only available for offences committed on or after the relevant commencement dates set out in the introduction of this guide
- enforcement responses in relation to flood risk activities under Environmental Permitting (England and Wales) Regulations 2016 – they’re only available for offences which have occurred after 6 April 2016
Regulation 41(1):
Liability of directors, managers and secretaries in relation to offences that their company (body corporate) is guilty of and which are proved to have been committed with the consent, connivance or attributable to their neglect.
Civil sanctions are only available for this offence where they are available for the offence for which the body corporate is guilty.
Regulation 41(2):
Liability of members of a body corporate where they manage the company affairs.
Civil sanctions are only available for this offence where they are available for the offence for which the body corporate is guilty.
Source: Environment Agency 21st February 2024
