The Department for Environment, Food and Rural Affairs, in conjunction with the Scottish Government, is consulting on proposals to largely replace the existing penalty regime with civil penalties for non compliance with the EU Fluorinated Greenhouse Gases Regulation (EU No 517/2014) (the “EU Regulation”) in England, Scotland and offshore hydrocarbon installations in marine areas throughout the UK.

Fluorinated gases (or “F-Gases”) were largely introduced in the 1990s as replacements for Chlorofluorocarbons (CFCs) and can be found in various household and industrial products, such as medical inhalers, refrigerators and air conditioning units. Whilst F-Gases do not harm the ozone layer in the way that CFCs do, they are greenhouse gases which are believed to be up to 1000 times more harmful to the environment than Carbon Dioxide. As a result, the EU Regulation requires reduction in the amount of F-Gas containing products. The reductions are targeted by quotas of F-Gas containing products that a producer or importer places on the EU market over the course of a year, with this quota decreasing in steps between 2015 and 2030. The EU Regulation also requires leak checks and repairs of F-Gas containing products and imposes training requirements on those who deal with the products.

The EU Regulation is directly applicable in the UK but enforcement powers and penalties have been implemented by the Fluorinated Greenhouse Gases Regulations 2015 (the “Regulations”). The Environment Agency is primarily responsible for enforcing the Regulations in England, SEPA in Scotland and the Secretary of State for the marine areas but local authorities and other Government agencies also have enforcement responsibilities.

Currently, non-compliance with the Regulations can lead to enforcement action, in the form of enforcement notices, or a criminal prosecution potentially resulting in a criminal conviction and a fine. However, there is some concern that the current criminal regime does little to deter people from violating the Regulations. The enforcement notices carry no financial penalty. Criminal proceedings are often expensive and time consuming, which has led to very few prosecutions.

The new proposal is that the criminal offences for non compliance would largely be removed and replaced by civil penalties (deliberate release would remain a criminal offence but with an additional enforcement option of a civil penalty). The civil penalties would range from £1,000 to £200,000 based on the seriousness of the breach and the size of the company or financial standing of the individual. In addition, investigation costs would be pursued. The offender would initially receive a notice of intention to issue a penalty, and would be given 28 days to respond if they believe that the penalty is unreasonable, or to provide mitigation. Separate appeals procedures are to apply following the issue of a penalty.

Views are being sought on these proposals, with regards to the premise of civil penalties themselves and also the specifics of the proposals and some other legal changes. Responses should be submitted by 24 November 2017. If you have any queries relating to how these proposals may affect you or your business or you wish to seek advice on how to respond to the consultation, please contact one of the above listed contacts or your usual CMS EHS contact.

The consultation document states that following review of responses, draft legislation will be laid before Parliament in January 2018 or as soon as possible thereafter with guidance to follow.