Environment Agency Seeks Enhanced Powers

Posted onAugust 16, 2023

The Environment Agency is responsible for the investigation and prosecution of a great many regulatory and criminal offences. As an alternative to criminal prosecution financial sanctions can be imposed in accordance with the Environmental Civil Sanctions (England) Order 2010.

In an announcement this week, the Agency stated that it was seeking to lift the current £250,000 ceiling on penalties and replace it with unlimited financial sanctions. In addition, it would seek to introduce unlimited variable monetary penalties as a civil sanction in the Environmental Permitting (England and Wales) Regulations 2016.

The removal of the overall cap for variable monetary penalties will apply to all the existing offences that are covered by variable monetary penalties under the Environmental Civil Sanctions (England) Order 2010 and the Environmental Civil Sanctions Regulations 2010. They will be expanded to cover the offences under the Environmental Permitting Regulations.

Currently under Environmental Civil Sanctions Order and the Environmental Civil Sanctions Regulations variable monetary penalties can be used for offences under the following legislation:

Salmon and Freshwater Fisheries Act 1975
Salmon Act 1986
Environmental Protection Act 1990
Water Resources Act 1991
Water Industry Act 1991
Environment Act 1995
Water Act 2003
The Sludge (Use in Agriculture) Regulations 1989
The Environmental Protection (Disposal of Polychlorinated Biphenyls and other Dangerous Substances) (England and Wales) Regulations 2000
The Control of Pollution (Oil Storage) (England) Regulations 2001
The Water Resources (Environmental Impact Assessment) (England and Wales) Regulations 2003
The Hazardous Waste (England and Wales) Regulations 2005
The Producer Responsibility Obligations (Packaging Waste) Regulations 2007
The Transfrontier Shipment of Waste Regulations 2007
The Nitrate Pollution Prevention Regulations 2015
The Reduction and Prevention of Agricultural Diffuse Pollution (England) Regulations 2018 (Farming Rules for Water)

Expanding variable monetary penalties to the Environmental Permitting Regulations will mean that activities regulated under an Environmental Permit will also be included. These activities are:

manufacturing
power generation and other combustion processes
storage, treatment, use and disposal of waste, including scrap metal
discharges to surface water and groundwater
radioactive substances
activities using solvents
mining and extractive industries
flood risk activities
pig and poultry farming

The Environment Agency, in a statement commented:

"This offers regulators a quicker method of enforcement than lengthy and costly criminal prosecutions – although the most serious cases will continue to be taken through criminal proceedings.

The changes will ensure regulators have the right tools to drive compliance across a range of sectors, strengthening enforcement and holding all who hold environmental permits to greater account – from energy and water companies to waste operators and incinerators.

All future environmental fines and penalties from water companies will be put into a new Water Restoration Fund, which will be re-invested back into the environment by supporting local groups and community-led schemes."

You must take early legal advice if you are facing an investigation or prosecution for any alleged crime or regulatory breach. The powers available to regulators are wide-ranging, and it should not be thought that non-court disposal comes without potentially significant financial and reputation repercussions.

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