Environmental enforcement in the UK

Abstract

In the UK, the Environment Agency is responsible for enforcement of environmental legislation and offences committed under such laws and regulations. Under the current regime, if deemed serious enough, offenders are taken to court. In the past eight years, there have been ∼1600 cases (including approximately 800 prosecutions) per year with 61% being for illegal disposal of wastes and a further 26% being for water pollution incidents. The level of fine has been relatively small at around £6700 per conviction for water offences and £3700 for waste offences. This is possibly due to a lack of awareness of the damage caused in environmental offending by the courts. New legislation in the form of the Regulatory Enforcement and Sanctions Act 2008 is likely to change the way offences are assessed and treated by the Agency and a proportion of cases will be dealt with by the Agency itself, with appeals being handled by a Tribunal and only the most serious cases going to the criminal courts. The efficacy of this approach has yet to be tested in the UK but may speed up the process and lead to more appropriate sanctions being levied.

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David Stott

David Stott is the Chief Prosecutor for the Environment Agency and has been in post since 1998. Prior to that, he held various senior posts with the Crown Prosecution Service in Manchester, Sheffield and Birmingham. In his current role he is involved with policy construction and the conduct and oversight of major investigations on behalf of the Agency. He also sits as a Deputy District Judge in magistrates courts around the Midlands.

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Foreword

In the world of environmental prosecutions, you are damned if you do and damned if you don't! If the Environment Agency has to bring a prosecution, it means the environment has been contaminated and probably needs some form of assessment and remediation. If you don't bring a case, you are criticised for being too lax: both could be considered a failure. However, new legislation may lead to a radical shake up of the way sanctions are brought against potentially responsible parties and David Stott, the Chief Prosecutor for the UK Environment Agency, provides a background to enforcement in the UK.

Stephen M. Mudge

Bangor University, Menai Bridge, Anglesey, UK LL59 5AB

Introduction

The Environment Agency is the principal authority for the regulation of the environment in the UK. The Agency was set up in 1996 under the Environment Act 1995 † to regulate a wide range of environmental activities encompassing pollution control, waste regulation, water resources, flood defence, fisheries and conservation and navigation. The Agency was formed from previous entities notably the National River Authority (NRA), Her Majesty's Inspectorate of Pollution (HMIP) and waste collection authorities.

The extensive remit of the Agency requires it to use a plethora of Statutes (Primary Acts of Parliament) and Statutory Instruments (secondary legislation); Table 1 shows some examples of legislation most frequently relied upon for enforcement purposes.

Table 1 Acts of Parliament and Statutory Instruments used by the Agency in the protection of the environment

Act of Parliament	Key Aspect
Salmon and Freshwater Fisheries Act 1975	This Act gives water bailiffs the powers of police constables including that of arrest when enforcing its provisions.
Reservoirs Act 1975	Provisions enabling regulation, monitoring and maintenance of structures.
Import of Live Fish Act 1980	Provision to control importation so as to protect indigenous species.
Control of Pollution (Amendment) Act 1989	Ensures that the carriers of waste are licensed.
Environmental Protection Act 1990	Especially sections 23, 33, 34 and 71 relating to the keeping, treating and disposal of controlled waste.
Land Drainage Act 1991	To clarify powers and composition of land drainage boards and relationship with the EA; regulation of drainage and alterations to waterways.
Water Resources Act 1991	Especially sections 85 and 86 relating to the pollution of controlled waters.
Radioactive Substances Act 1993	Used, in particular, for the loss of closed radioactive sources.

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Statutory Instruments	Key Aspect
Sludge (Use in Agriculture) Regulations 1989	To regulate and control spreading of waste to land.
Transfrontier Shipment of Waste Regulations 1994	Provides a notification and compliance regime for waste exports to both EU and non EU countries.
Waste Management licensing Regulations 1994	Details the requirements for those operating waste facilities plus listing exemptions.
Groundwater Regulations 1998	Controls discharges.
Nitrate Vulnerable Zones Regulations 1998	As above.
Control of Major Accident Hazards Regulations 1999	Specifies requirements on those holding defined quantities of hazardous materials.
Pollution Prevention and Control Regulations 2000	Licensing requirements on those conducting industrial activity.
End of Life Vehicles 2003	New scheme and obligations on those disposing of ELVs so as to control waste disposal.
Greenhouse Gas Emissions Trading Scheme Regulations 2005	New compliance scheme of trading permits applicable to those activities emitting GGs.
Hazardous Waste Regulations 2005	Regime to identify, manage and control hazardous waste.
Landfill Regulations 2005	Tighter control of requirements applicable to those operating landfills.
Producer Responsibility (Packaging Waste) Regulations 2005	A compliance scheme applicable to those businesses producing specified amounts and types of packaging waste.
Waste Electrical Equipment Regulations 2006	New scheme controlling the disposal of WEE.
Environmental Permitting Regulations 2006	A simplified consolidation scheme for permitting waste operations.

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In conducting its enforcement activities, the Agency follows the policies and methods of implementation set out in its Enforcement and Prosecution Policy and Functional Guidelines .‡ Essentially, when dealing either with a pollution incident or with a breach of the terms of a permit or authorisation, the Agency does a form of risk assessment: it endeavours to categorise the effect or potential effect of what has occurred in environmental damage terms. The categorisation is simple and the incident is classified as either being major, significant, minor or having no environmental impact at all. Although the categorisation is simplistic, it is important as it leads to a suggested enforcement response. For instance, occurrences categorised as being of major effect will normally lead to a prosecution, whilst those falling into the lower two categories are more likely to be resolved by way of a formal caution or warning. An incident classified as significant is serious enough to recommend a prosecution or caution response rather than just a warning.

The enforcement responses themselves are, at present, relatively limited and take the form of either a formal Court prosecution or a formal caution whereby the offender admits the offence and signs documentation to that effect. Once completed, although a record of the offence is made and retained, no formal Court proceedings are taken against the offender for this infringement. The third option is a formal warning; this is a note sent to the alleged offender by the Agency indicating that in the Agency's opinion, an offence has been committed. As with cautions, warnings also comprise part of the offenders ‘history’ which can then be used by the Agency when assessing how to respond to any subsequent infringement.

In addition to the three potential enforcement responses, the Agency can also serve formal enforcement notices on potential offenders. Not surprisingly, in view of the extensive remit of the Agency, notices vary in both form and requirement and presently total approximately 400 per year. Some, for instance, require information from the recipient, and failure to provide it can lead to the commission of an offence in its own right. Other notices, however, may direct specific steps to be taken. In enforcement terms, notices requiring information, such as with section 71 (Obtaining of information from persons and authorities) of the Environmental Protection Act 1990, are extremely useful requiring the recipient to provide information regarding details about the disposal of waste. Although evidence demanded and obtained under compulsion such as in this example is not directly useable in any subsequent court case, it enables enquiries to be better focused and to progress more speedily than otherwise would be the case.

In overall enforcement terms, it is the waste and water quality regimes that provide the greatest number of formal prosecution cases. As can be seen from Fig. 1, the overall numbers of prosecutions, cautions and notices served have been relatively constant over the past 8 years averaging just over 1600 per year. In all years, the number of prosecutions is greater than either cautions or notices served.

Fig. 1 Statistics on the number of prosecutions, cautions and notices from 2000–2007.

The number of prosecutions in the Waste category makes up 61% of the total each year with a very small variation about this mean (Fig. 2). Water Quality makes up 26% of the remaining prosecutions which together with Waste account for the vast majority of all prosecutions. There has been little temporal change in the past eight years although Fisheries offences may have an increasing importance.

Fig. 2 The number of prosecutions from 2000–2007 broken down by enforcement category.

A consideration of total fines that have been awarded by Courts is also informative and it can be seen from Fig. 3 that unsurprisingly the Waste and Water Quality regimes have attracted the highest sums to be awarded. These figures are to be treated with caution though as they conceal individual cases which may well have attracted large fines far beyond the average. For instance, in 2003 the company known as Eurocare Environmental Services Ltd was fined a total of £100k and ordered to pay £114k in costs (Chester Crown Court 14th February 2003). The company was one of the country's leading clinical waste disposal contractors. The allegations made against it were of causing a string of waste and pollution offences by deliberate and reckless actions compounded by gross management shortcomings. One particularly unsavoury aspect of the case comprised the disposal of the residual washings from beneath a conveyor leading to an incinerator being discharged covertly into a septic tank. That tank in turn drained into a tributary of the River Dee.

Fig. 3 Total fines in each sector for the past eight years.

Similarly, and again in 2003, Cleansing Services Group Ltd was fined a total of £200k along with £300k costs for a list of waste control offences (Gloucester Crown Court 5th December 2003). In October 2000 a serious fire broke out at the company's waste treatment plant and a number of residents reported illness in the aftermath. A subsequent investigation demonstrated significant deficiencies in the running of the site and in the way in which certain wastes had been kept. Prompted by an allegation by a former employee, a borehole survey and excavation showed that asbestos and other toxic and carcinogenic materials had been buried unlawfully at the site.

However, in terms of average fines, the overall average based on the total number of prosecutions is in the region of £5500. That takes into account not only companies but also individual offenders. A further breakdown, however, concentrating simply on corporate offending, has shown the average fine to be in the region of £8000 per prosecution. That figure covers companies which may comprise a sole trader through to multi-national organisations.

The total fines have a statistically significant (P <0.05) increasing trend over the last eight years with a mean increase of £160k per year which represents ∼5% per year, slightly ahead of inflation (∼2.5%) over the same period. The disparity between the Waste and Water Quality seen in the number of prosecutions has lessened somewhat with total fines only slightly less.

On a per case basis, the fines for Water Quality infringement (£6717) are higher than for Waste offences (£3753). This is probably due to it being easier to demonstrate the environmental effect of pollution on water courses to courts as opposed to the harm caused by illegal waste dumping. Also, the majority of water pollution cases are committed by companies as opposed to the waste offences which largely involve individuals; companies have greater assets available to meet the imposition of financial penalties.

The fines imposed for environmental offending are generally low as until relatively recently the environmental effects have not been fully appreciated by courts. Also, unlike ‘conventional crimes’ courts have been given no sentencing guidelines to follow. Consequently fines imposed lack uniformity and structure. The Sentencing Guidelines Council, however, is aware of the issue and it is anticipated that the topic of sentencing for environmental offending will be scrutinised in the not too distant future.

The success of the Environment Agency as a regulator may be judged in two different but competing ways. The Agency might be seen to be successful if it has a large number of prosecutions as this shows that it is bringing offenders to court and punishing them for their actions or negligence. On the other hand, this might also be seen as a failure as the environment has been contaminated and damage has been caused. In an ideal situation, there would be no prosecutions and no instances of environmental damage. It is difficult to reconcile these two views.

Approximately 90% of environmental cases are heard in front of magistrates; these lay people may not be fully conversant with the impact of pollution on the environment and the levels of fines reflect this. This apparent failure by Courts to impose significant penalties, along with the inconsistency of sentences imposed, has been a matter of political concern for some time. By way of example, and although pre-dating the figures, in 1997 the Environment Agency prosecuted the Milford Haven Port Authority for causing the south Wales coast line to be polluted with thousands of gallons of oil which escaped from a negligently piloted tanker (the Sea Empress) which ran aground. At the initial hearing in the Crown Court, the Port Authority was fined a total of £4m. However, on appeal the Court of Appeal reduced the fine to £750k, a huge reduction. The main reasons for the reduction were firstly a comparison of the fine with amounts imposed on corporate offenders where there had been fatalities. The fine of £4m was thought to be too analogous to such cases. Secondly, the Court took the view that the Port Authority, as a public body, would be detrimentally restricted in its operations if made the subject of a swingeing fine which, in any event, would have to be paid from the public purse.

In another example from 2000, a man was fined £30k by Warwick Crown Court for abandoning 184 drums of toxic waste. He had, however, received a payment of £58k for disposing of the material and it cost the authorities £167k to clean-up and have the items incinerated which puts the fine in context (Warwick Crown Court 3rd April 2000). In future, however, the new Environmental Damage (Prevention and Remediation) Regulations 2008 may provide a mechanism for the courts to ensure that the polluting materials are suitably removed and any damage ‘paid for’.Disparities such as these led to a Parliamentary environmental sub-committee scrutiny in 2005, for which the Agency provided oral and written evidence; this process examined both environmental offending and environmental corporate crime. That inquiry was in turn followed by two further reports. The first, the Hampton Review § of corporate regulation which looked at regulation activity in general terms, and the second a report produced by Professor Richard Macrory of UCL entitled ‘Regulatory Justice: Making Sanctions Effective’.¶ These two reports have led to the passing of the Regulatory Enforcement and Sanctions Act 2008 which is enabling legislation and has the capability to profoundly change the enforcement methods of the Agency and indeed other regulators. The essential thrust of the Macrory Report, the recommendations of which have been accepted by Government, is based on the premise that too much reliance has been placed upon prosecution activity. Instead, prosecutions should be reserved for the most serious deliberate, intentional or grossly negligent environmental offender and other forms of sanction should be available for use where the offending has been caused by inadvertence or careless behaviour by organisations striving to do what on occasions is their incompetent best.

These administrative penalties could take the form of:

a. fixed monetary penalties, applicable to low level and perhaps repetitive offending where the regulator imposes what is in effect a fine;

b. variable monetary penalties, where the regulator assesses the gravity, nature and causation of the incident and then sets the penalty;

c. enforcement undertakings whereby the offender suggests a form of project to the regulator which can either take the place of or be undertaken along with a reduced fine; and

d. various notices such as Restoration, Remediation and Stop notices, all of which are self explanatory. In this case, the offender agrees to put right the damage he has caused or indeed to terminate his activities immediately once served with a notice if there is a clear risk of him causing further serious environmental damage.

These alternative forms of penalty would be appealable to a new Tribunal. The procedural and evidential details of this body are yet to be settled, for instance which party would bear the burden of proof; the issues to be proved, i.e. was the imposition of the penalty wrong in law or unreasonable; the powers of Tribunal to make findings of fact and who would bear the costs. However, the fundamental distinction is that the new penalties would not be regarded as convictions and their imposition should save both regulator and recipient considerable time and costs. Consequently, there would be a clear separation of enforcement by way of the criminal process on the one hand as opposed to the new sanctions on the other which will be civil in the nature and clearly divorced from their criminal counterparts.

At present the Department of the Environment, Food and Rural Affairs (Defra), with the help of the Agency and other regulators, is preparing a Consultation Paper, ‘Fairer and Better Environmental Justice’, which is likely to be circulated in the Spring 2009 and which sets out the various means of implementing the Macrory proposals. If taken forward, then the traditional means of enforcement which relies upon a public hearing in a criminal Court will change significantly and such casework will reduce, possibly considerably. Undoubtedly the new proposals would provide the Agency with alternative methods of dealing with environmental offending. However, in turn, this will require significant redrafting and formulation of the Agency's policy as to when and in what circumstances a choice is to be made between the criminal and civil routes and, if the latter is chosen, precisely how the new penalties are to be assessed and imposed. This will probably be fertile ground, at least initially, for legal challenge.

It is hoped that adoption of the new regime will also mean that those cases remaining in the criminal system would be seen for what they are and treated accordingly, namely the more serious examples of offending committed by those with little concern for the effect of their actions on the environment and whose activities are often carried out purely for profit and with the intention of avoiding regulation. This can be graphically illustrated by a recent case brought by the Agency after a protracted investigation against two men, at the Inner London Crown Court on 11th June 2008 who received prison sentences of 22 months and 14 months, respectively, for the unlawful large scale commercial dumping of construction waste at 15 locations around London in quantities estimated to amount to 14 500 tonnes. These were brazen offences by individuals determined to avoid the cost of regulation and from whom eight lorries have been seized.

It is the intention that the creation of a ‘civil regime’ of enforcement responses will enable the Agency to concentrate more of its resources on that type of criminality and by so doing persuade courts to impose commensurate penalties on those brought before it. Time will tell.

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Footnotes

† http://www.opsi.gov.uk/acts/acts1995/Ukpga_19950025_en_1

‡ http://www.environment-agency.gov.uk/static/documents/enforcement-policy.pdf

§ http://www.berr.gov.uk/files/file22988.pdf

¶ http://www.berr.gov.uk/files/file44593.pdf

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