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Poorly performing sites: will undertakings overtake prosecution?

Yet another amendment to Environmental Permitting (England and Wales) Regulations 2010 came into force on 6th April 2015, in England only, to allow an approach to enforcement that has been around for some time to be extended to the waste industry. The new “enforcement undertaking” is intended to provide an alternative to other more serious and costly approaches to enforcement, such as prosecution, where the alternatives of a warning or formal caution may not seen to be effective or strong enough. Many offences could be dealt with by this approach which effectively represents the middle ground in enforcement and stands a better chance of achieving a result if used properly. The system will be regulated by the Environment Agency and is likely to be a significant part of their approach to what they call ‘poorly performing sites’.

What is an “enforcement undertaking”?

It is a form of written agreement submitted by an operator and agreed with the Agency which provides a remedy to rectify the outcome of an alleged offence. It is also an alternative to an enforcement or suspension notice but cannot replace a notice that has already been issued as there are separate provisions for appealing those notices. If you think the Agency is about to serve a notice, then offering an undertaking may be a sensible alternative. They can accept or reject your submission.

When does an enforcement undertaking apply?

An undertaking applies where the Agency has reasonable grounds to suspect that the person has committed an offence such as:

  1. a) Operating a waste site without a permit or exemption
  2. b) Failing to comply with, or contravening environmental permit conditions
  3. c) Failing to comply with a notice requiring the provision of information
  4. d) Failing to comply with the record-keeping requirements

What is included in an “enforcement undertaking”?

It is a written statement of the action you intend to take and by when to ensure that the offence does not continue or recur. The action should (so far as possible) restore the site to the position it would have been in if the offence had not happened (or achieve an equivalent environmental improvement). That action can include the payment of a sum of money to benefit any person affected by the offence. The document must also state how and when a person is considered to have discharged the undertaking and it can also be varied if the Agency agrees in writing. Once the undertaking is accepted by the Agency, compliance with it will mean that you cannot be prosecuted for the offence that it applies to.

Is there any publicity?

Once an undertaking has been accepted, the Agency may publish it in whatever manner it sees fit, unless the publication would be inappropriate.

How is an enforcement undertaking completed?

Once you have discharged the requirements of the agreed undertaking, you can apply to the Agency for a certificate confirming completion, for which they have 14 days to issue their decision. If they do not grant the certificate there is a right of appeal to the First-tier Tribunal. An appeal is allowed if the decision was based on an error of fact, was wrong in law, was unfair or unreasonable or was wrong for any other reason.

What happens if I don’t comply with my undertaking?

Not complying with your undertaking means that the Agency can still take you to court for the same offences within six months of notifying you of non-compliance with your undertaking, but only for cases tried in the magistrate’s court. Indictable offences are not subject to that time limit and are in any event unlikely to be subject to an undertaking in most cases. It is also important not to give inaccurate, misleading or incomplete information as that can invalidate a certificate and lead to prosecution.

Is there any guidance?

The Agency has already published guidance which applies to other regimes and includes some hazardous waste, packaging waste and waste export offences. It is expected that the guidance will be updated to include the new waste provisions. There is a standard form to be completed and as expected, it asks how the offence came about, and who or what has been affected by the offence. In addition to stating your actions, the form also invites you to reimburse the Agency’s costs incurred in dealing with the undertaking and the monitoring compliance with it.

Whilst many in the industry will see the introduction of these additional undertakings as a replacement for prosecution, it remains to be seen whether there will be a significant drop in prosecutions or simply an increase in the use of the new system to replace the existing options of formal cautions, warning letters or doing nothing. It will certainly create additional work for the Agency and if used effectively will save court time and enable operator funds to be spent on remedying breaches rather than being fined and the money disappearing into the Treasury whilst the problems on site have not been resolved.

As soon as it beds in we’ll be covering the subject in all its gory detail. If you have any experiences, good or bad, do get in touch to let us know.

Marco Muia BSc (Hons) MSc MCIWM is the Managing Director of Oaktree Environmental Limited. He specialises in all aspects of waste planning and regulation consultancy. He also holds the level 4 COTCs for Hazardous Waste Treatment and Transfer. You can contact Marco on 01606 558833 if you have any questions about this article or e-mail him at [email protected] and follow him on Twitter @wastechat

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