Environmental compliance issues can be caused by a number of different factors, ranging from simple lack of communication between the different teams in a company, to deadlines for the submission of environmental information being missed inadvertently, to a failure to realise that new regulations apply to the company, to a failure to check or replace faulty equipment adequately or fast enough, to a blatant disregard for environmental laws.
Serious environmental compliance offences
Serious offences are generally reported widely in the press and include:
- On 22 March this year, Thames Water was convicted and fined a record £20.3m, as a large amount of untreated sewage leaked, on numerous occasions from 2012 to 2014, into the Thames, its tributaries and onto the banks of the river, from the treatment works at Aylesbury, Didcot, Henley and Little Marlow and the pumping station at Littlemore. This was the largest freshwater pollution case ever brought by the Environment Agency. The fine was so high due to the huge quantity of sewage discharged (1.4 billion litres), the length of time over which the discharges occurred, the negligence and the seeming disregard for the law by the company and as the significant consequential impacts were long-term and (in the case of fish, birds and invertebrates) even fatal.
- In January 2016, Thames Water had also been fined £1m for similar environmental breaches, then due to equipment at its treatment works in Hertfordshire blocking, so sewage debris and sludge was discharged into the canal.
- In May 2015, an individual from Burton upon Trent was jailed for 7 months for burning large quantities of waste on land and for leaving the site in a state of ruin.
In prosecuting the above offences and other such environmental breaches (such as the unauthorised treatment or disposal of waste, unauthorised discharge into air, land or water and operating without an Environmental Permit), the 2014 Environmental Offences - Definitive Guidelines take the judge or magistrates through a sentencing process of up to 12 steps (which are slightly different for individuals and companies), with the overall aim of punishing the offenders appropriately, preventing them from re-offending and removing any financial gain.
These 12 steps include:
- determining the category of offence
- making a compensation or confiscation order, and
- assessing the financial standing of the offender and removing any financial benefit.
These guidelines mean that persistent and more serious offences will often now lead to far heavier penalties than previously, as was shown by the scale of the Thames Water fine. An offender will also incur a criminal record and an Environmental Permit may be varied or revoked. Some of the more serious environmental offences may also lead to a custodial sentence.
Less serious environmental offences would generally be dealt with by way of a lower fine and an expectation that procedures are changed robustly (and if that is not the case, then subsequent repeat offences will in turn be dealt with more harshly). A criminal record would still apply and the impact on the reputation of the company might ensue.
Less serious environmental compliance offences
For certain less serious environmental compliance issues (including some Environmental Permitting offences), civil sanctions may now be imposed by the Environment Agency. The above (standard) criminal prosecution route would still be available in such cases, but the use of this alternative method to deal with less serious offences means that fines, reputational damage and a criminal record can all be avoided.
Enforcement undertakings provided to the Environmental Agency are the most popular civil sanctions employed for these environmental offences. These can even be used in cases of environmental permitting breaches, such as for non-compliance with a permit for water discharge activities, or of packaging waste offences.
The Environmental Agency will however need to be satisfied that this route protects the environment sufficiently. The company or individual would be advised to act quickly on the discovery of a breach, cooperate fully with the Environment Agency in it making its investigation, make genuine efforts to rectify the damage to faulty infrastructure or equipment and put in place a robust compliance procedure to avoid future issues from occurring. These actions would increase the chances of the Environment Agency accepting such an undertaking.
Environmental compliance issues are serious and can have far-reaching consequences for offenders. There have been some fairly recent changes in how offences are dealt with, at both ends of the spectrum. For serious offences, fines and/or length of sentences are now likely to be severe. For less serious offences, if civil sanctions are accepted by the Environment Agency, fines, court appearances, criminal records and reputational damage can all now be avoided.