Are you an environmental criminal?

Published by Leah Pearson for Greenwoods Solicitors LLP in Environment and also in Communities

It may sound like something from an eco warrior's magazine, but environmental crime is being taken more and more seriously in the UK with increasingly hefty sanctions. There is a wider range of civil and criminal penalties and enforcement options available to the regulators than ever before.

The Regulatory Enforcement and Sanctions Act 2008 is designed to co-ordinate regulation by local authorities and gives regulators access to new powers and civil penalties which are not as time-consuming or risky as taking criminal prosecutions. They also reflect the fact that most environmental non-compliance by businesses is unintentional. The new powers available include fixed penalty notices; variable monetary penalties; compliance notices or restoration notices; Stop notices – which will prevent a business from carrying on an activity described in the notice until it has taken steps to come back into compliance; and enforcement undertakings where a business gives an undertaking to a regulator to take corrective actions.

Yet more legislation is coming in this year, in the form of the Environmental Damage (Prevention and Remediation) Regulations 2009 which force polluters to prevent and remedy environmental damage that they have caused, and the proposed Environmental Sanctions Order 2010 which is expected to be implemented in April 2010. The civil powers of enforcement that these Regulations provide will be in addition to existing criminal penalties.

The financial penalties may be huge as waste companies that commit waste offences could be fined up to 10 per cent of their turnover.

Even if you realise you have made an error and take yourself cap in hand to the Environment Agency (rather than waiting for them to notice and come to you) don't expect leniency. Red Bull Limited was fined £270,000 last year for failing to report that it was a packaging producer to the Agency under the Producer Responsibility Obligations (Packaging Waste) (Amendment) Regulations 2008, despite the company realising its own error and proactively informing the Agency.

Personal liability, both civil and criminal may also be attached to environmental offences, especially at director level. In February, BVH Limited, Birmingham, was fined £70,000 and its director, Kenneth Morris, was fined £35,000 for storing and treating excessive quantities of hazardous chemical waste.

Recent developments also include prosecutors using the Proceeds of Crime Act 2002 to recover money or assets that the Regulator calculates the offender has made by not following legislation. In 2009, Easy Skips (NE) Limited and Andrew Benson and Kevin Brough, two of the company’s directors at the time of the offences, were sentenced at Teesside Crown Court for controlled waste offences, and their assets were confiscated. The Judge ordered the directors to pay £124,393 and £110,000 respectively under the Proceeds of Crime Act 2002 within 12 months or face three years in prison.
This confiscation under the Proceeds of Crime Act is the second-highest ever achieved in an Environment Agency case. Since November 2007, under Proceeds of Crime the Environment Agency and partners has confiscated more than £1.5 million from waste criminals and is currently investigating a number of cases worth more than £25 million in total.

Dr Anna Willetts, Solicitor and Environmental Law specialist in Greenwoods Solicitors LLP's (Peterborough) Business Defence Group concludes: "Firms and directors are advised to take legal advice at an early stage in order to avoid being at the sharp end of this new environmental legislation."

March 2010

The information contained in this article is intended to be a synopsis only. Before acting on it, you should take professional advice. 

If you would like clarification on this issue or need advice contact Dr Anna Willetts on 01733 887625.