Environment Agency's New Civil Sanctions Powers Implemented

From 4 January 2011, for some offences in area of waste, including waste packaging, the main environmental regulator in England and Wales, the Environment Agency ("the Agency") has announced that it may use civil sanctions to deal with breaches of environment law. Whilst supplementing rather than replacing existing enforcement options such as criminal prosecution and introducing more flexibility, uncertainty and challenge may arise during the introductory period as and when the new sanctions are applied. It is anticipated that environmental permitting will be brought into the civil sanction regime after April 2011. The Regulatory Enforcement and Sanctions Act 2008 (the "RES Act") introduced alternative civil sanctions that could under certain conditions be provided to regulators. Having met the conditions, in 2010 the Agency were granted the powers pursuant to separate Orders in England and in Wales. In order to provide some certainty and clarity in approach, following consultation (see earlier Law-Now) the Agency published a revised statement on Enforcement and Sanctions, guidance (the "Guidance") and offence response options which also came into force for enforcement decisions on 4 January 2011. Click here for links to the documents. The Agency statement identifies that the aim is to use civil and criminal sanctions in a manner appropriate to the precise offence and as set out in the Guidance. As RES Act civil sanctions are not available for all environment related offences and where they apply, not all of the sanctions may be available, the available sanction for each offence is listed in the offence options response document. The Agency has indicated that the sanctions will initially mainly be used in the hazardous waste, waste resources and waste packaging sectors for offences committed in England after 6 April 2010 and in Wales after 15 July 2010 (when the Orders came into force).

Recap of the RES Act civil sanctions

Fixed Monetary Penalties (FMPs)

These are fixed penalties which the Agency consider suitable for offences with minor or no direct environmental impact such as paperwork or administration offences. FMPs are set at £300 for business and £100 for individuals with discounts for early payment.

Variable Monetary Penalties (VMPs)

These are monetary penalties which may be imposed for more serious offences. The Agency has published methodology to set the level of VMP. VMPs may be used instead of criminal sanctions (i.e. avoiding a...