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NEW CIVIL SANCTIONS FOR ENVIRONMENT AGENCY

Hazardous waste and water offences face new tough civil sanctions 

From 4 January 2011, the Environment Agency (EA) have been able to use six new civil sanctions. The new sanctions available under the Regulatory Enforcement and Sanctions Act 2008 have not replaced current enforcement tools but the EA expect that they will use be used for hazardous waste, water resources and packaging waste offences committed in England after 6 April 2010 and in Wales after 15 July 2010.

The EA must apply the criminal standard of proof (beyond all reasonable doubt) to determine whether an offence has been committed. The six new types of civil sanction are:

  1. Compliance Notice – actions to comply with the law, or to return to compliance, within a specified period;
  2. Restoration Notice – steps to be taken to restore the environment from harm caused by non-compliance;
  3. Fixed Monetary Penalty – a low level fine imposed for a specific minor offence and fixed at £100 for an individual or £300 for a company;
  4. Enforcement Undertaking – an offer, formally accepted by the EA, to take steps that would make amends for non-compliance and its effects. A business can set out how it proposes to remedy matters which if accepted become a legally binding voluntary agreement;
  5. Variable Monetary Penalty – a proportionate monetary penalty which the Regulator may impose for a more serious offence. The fine can be no higher than the maximum amount allowed by statute for the relevant offence and must not exceed £250,000; and
  6. Stop Notice – an immediate stop to activity causing serious harm or presenting a significant risk of causing serious harm.

The EA will be able to take legal action in respect of any non-payment of monetary penalties. They may also prosecute for non-compliance with any restoration or stop notices and may recover the costs of the investigation or legal advice.

Comment

HSE has not adopted these new powers under the Regulatory Enforcement and Sanctions Act 2008 for use regarding H&S offences.

The HSE position is that the health and safety regime is “mature with no significant gaps in the powers regulators can exercise now” and that it has sufficient powers to ensure that:-

  • duty holders take action to deal with immediate risks;
  • promote and achieve sustained compliance with the law; and
  • ensure that duty holders who breach health and safety requirements are held to account.

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