Environmental legislation – who is affected?
Organisations across a range of sectors can be caught by environmental legislation, through producing and disposing of waste into the air, water or land, carrying out activities that produce emissions and pollution, and through managing contaminated land.
Sanctions for breaching environmental legislation can be significant, including criminal fines, civil sanctions and individual liability for directors. It is therefore important to work with the regulator at the outset of their investigation to understand what, if any, enforcement action may be taken, and to mitigate that so far as is possible.
Enforcement undertakings – what are they?
In certain circumstances where the regulator has reasonable grounds to consider that an organisation has committed an offence, the regulator may agree to accept a civil remedy known as an enforcement undertaking, as set out within the Regulatory Enforcement and Sanctions Act 2008. An enforcement undertaking is a legally binding agreement which sets out the actions that the offending organisation will take, namely:
- Ensure the offence does not continue or recur;
- Ensure that the position is restored to what it would have been, had the offence not occurred;
- Payment of an agreed sum of money to benefit those affected by the offence; or
- Action of a prescribed description.
The benefits of agreeing to enter into an enforcement undertaking are significant, for example saving on costly court time. Whilst the terms of all accepted enforcement undertakings are published online, they typically receive less publicity than criminal prosecutions. Most significantly, once an enforcement undertaking has been entered into and complied with, the organisation may not be prosecuted for the offence in the future, therefore avoiding a criminal record for the offence.
An organisation can, for example, agree to make a donation of a specified amount to a local wildlife charity, if it has committed an offence relating to water pollution.
When can enforcement undertakings be used?
Enforcement undertakings are only available for offences committed in England and Wales, which fall into the following categories:
- Environmental permitting
- Oil storage
- Water pollution
- Dangerous substances
- Land drainage
- Nitrate pollution
- Waste and hazardous waste
- Identify at the outset of an investigation into a potential offence whether an enforcement undertaking is a potential sanction available
- Self-report the breach – an enforcement undertaking is significantly more likely to be accepted if the organisation takes proactive action to notify its regulator
- Approach the regulator early in its investigation as to whether it would consider an enforcement undertaking – it is unlikely to change its mind once it has decided to prosecute
Written by Kevin Elliott, Partner, Eversheds Sutherland (International) LLP. Should you wish to hear more from Kevin on “High fines costing the earth? Practical tips on avoiding an environmental prosecution” book your place today at The SHE Show South, 2nd July 2019, DoubleTree by Hilton, MK Dons Stadium, Milton Keynes.
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For more detailed information in respect of managing a serious health and safety incident, please get in touch with health and safety lawyer Kevin Elliott, Partner and International Head of the Eversheds Sutherland Environment, Health and Safety team. The Eversheds Sutherland EHS team is ranked in Band 1 in the UK’s legal directories.
Eversheds Sutherland (International) LLP
Please note, the views expressed by the original article author are theirs alone and do not necessarily represent those of Washingtondowling Associates Ltd or The SHE Show and therefore we take no responsibility for the content or accuracy of this post.