Life and near-death for oilman in round - Downstream Magazine

Environmental regulation
How new civil sanctions could
JOHN GOLLAGLEE of Pannone LLP on the
Environment Agency’s new civil sanction powers on environmental issues
NEW CIVIL SANCTIONS FOR criminal
offences were introduced by the
Regulatory Enforcement and Sanctions
Act 2008 (RESA), with the aim of making
the enforcement of environmental
compliance quicker and more effective.
Subsequent legislation – the
Environmental Civil Sanctions (England)
Order 2010 (and the Environmental Civil
Sanctions (Wales) Order 2010) – has
been introduced to enable the
Environment Agency (EA) and Natural
England to deal swiftly with the offence
and secure prompt remediation rather
than embarking on lengthy, costly
criminal proceedings.
This article summarises what each new
sanction is, when it can be used and
how these powers could be used against
your business.
1. Fixed Monetary Penalty (FMP)
What is it? A cash penalty fixed at £300
for businesses and £100 for individuals.
When will it be used? When the EA is
satisfied beyond reasonable doubt that
an offence has been committed. It
should be used for offences with minor
or no direct environmental impact, such
as paperwork or administrative errors.
Additional information: The EA must
serve a notice of intent before payment
is demanded. Recipients can then make
representations on the notice or receive
50% off the penalty if they pay within
28 days. If payment is not made within
28 days, the EA can serve a Final Notice
demanding payment. If payment is not
received in the period then allowed, the
amount of the penalty increases by 50%.
Rights of appeal do exist. EA cannot
serve an FMP if it has already issued a
Variable Monetary Penalty (see below),
Compliance Notice, Stop Notice or
Restoration Notice for the same
incident. EA cannot start a criminal
prosecution in relation to the same
offence that is the subject of the FMP.
2. Variable Monetary Penalty
(VMP)
What is it? A cash penalty where the
sum is dictated by the severity of the
offence. The maximum must be lower
than the maximum a court could impose
for the same offence. The highest
possible for a VMP is £250,000.
When will it be used? A VMP is only
available for certain environmental
offences. The EA must be satisfied
beyond reasonable doubt that an
offence has been committed. It should
be used for more serious environmental
offences, particularly those where the
offender has made some profit or saving
by committing the offence. A VMP
cannot be served if an FMP has already
been issued or payment following a
Notice of Intent has been made in
respect of the same incident.
Additional information: The EA must
serve a notice of intent before payment
is demanded. Recipients then have 28
days to make representations or
objections on the notice and/or the
suggested fine. If representations are
not made within 28 days the EA can
serve a Final Notice demanding
payment. Rights of appeal do exist. A
VMP cannot be imposed on a person on
more than one occasion in relation to
the same act or omission. EA can only
start a criminal prosecution in relation to
the same offence that is the subject of
the VMP if the offender fails to comply
with the VMP. It is open to an offender
to make a formal undertaking to the EA
to take certain steps or make certain
payments to those affected by the
offender’s actions. The EA can choose
whether or not to accept these “Third
party Undertakings”.
3. Compliance Notice
What is it? An order requiring the
offender to take specified steps, within a
given timeframe, to prevent current or
future non-compliance.
When will it be used? A Compliance
Notice is only available for certain
environmental offences. This notice can
only be served if the EA is satisfied
beyond reasonable doubt that an
offence has been committed. This will be
used when previous advice or guidance
to encourage compliance has not been
followed and a formal notice has
become necessary. A Compliance Notice
cannot be served if an FMP has already
been issued or payment following a
Notice of Intent has been made in
respect of the same incident.
Additional information: A Compliance
Notice cannot be imposed more than
once in relation to the same act or
omission. The EA must first serve a
notice of intent advising the offender of
its intention to serve the notice and
their reasons for doing so. Recipients
then have 28 days to make
representations or objections. If
representations are not made within 28
days, the EA can serve a Final Notice
demanding the action to be taken.
Rights of appeal do exist. EA can only
start a criminal prosecution in relation to
the same offence that is the subject of
the Compliance Notice if the offender
fails to comply with it. An offender can
make a formal undertaking to the EA to
take certain steps or make certain
payments to those affected by the
offender’s actions. The EA can choose
whether or not to accept these “Third
party Undertakings”.
4. Restoration Notice
What is it? An order requiring an
offender to take specific steps, within a
given timeframe, to put right any
damage caused by its non-compliance.
When will it be used? A Restoration
Notice is only available for certain
environmental offences. This notice can
only be served if the EA is satisfied
beyond reasonable doubt that an
offence has been committed. Such
notices should be expected when
Downstream Winter 2010 18 www.downstreammagazine.co.uk