Following the recent introduction of Enforcement Undertakings as an alternative to prosecution for environmental permitting offences, we examine what they are, when they might be available and what the pros/cons might be for you and your business.
On 6 April, 2015, a significant amendment to the Environmental Permitting Regulations came into force which has provided the Environment Agency with an alternative to criminal sanctions in respect of environmental permitting offences; Enforcement Undertakings.
Whilst such undertakings have been around for some time as an alternative to environmental civil sanctions, they have now been extended as an alternative to criminal prosecution.
The newly created Enforcement Undertakings mean that if businesses act quickly and proactively following the identification of a breach of the Regulations, additional mechanisms exist to manage the situation and avoid further escalation of an environmental incident.
What is an Enforcement Undertaking?
An Enforcement Undertaking is an offer put forward, in agreement with the regulator, to restore and remediate environmental damage. Importantly, the individual/company who accepts that they have committed the offence will avoid a criminal record.
Making an offer
Any offer to the regulator must be realistic, beneficial and made in a timely fashion; before the regulator commences any legal proceedings. For this reason it is important to take advice at an early stage following an incident so as to consider all of those options available.
The typical effect of an Enforcement Undertaking should be remedial and restorative in nature – thereby reinstating a position of compliance. Businesses must decide firstly whether they want to offer an undertaking and secondly on what basis they want to offer it. It is then a matter for the regulator to decide whether they wish to accept the undertaking.
Each offer is assessed by reference to specific guidance, which states that the content of the offer should primarily:
- Restore the position to what it would have been had the offence not been committed.
- Secure that the offence does not continue or recur.
- Benefit any person affected by the offence.
An end to criminal prosecutions?
Once an offer of an Enforcement Undertaking has been considered and accepted, in principle, the regulator cannot prosecute for the breach in question. Where an Enforcement Undertaking is subsequently not complied with however, the regulator will be able to prosecute for the original offence. Serial offenders will also not be covered, the Regulations recognising that repeat offending can be a common feature of environmental offending.
The Regulations will allow regulators to accept offers of Enforcement Undertakings in relation to the following main offences under the Environmental Permitting (England and Wales) Regulations 2010:
- Operating without an environmental permit - Reg 38(2).
- Failure to comply with an environmental permit condition - Reg 38(2).
- Failure to provide information when requested – Reg 38(4).
- Failure to comply with record keeping requirements – Reg 38(5)(a).
- Offences by third parties – Reg 38(6).
For understandable policy reasons, this list does not however include any offences under the Regulations relating to deception. Additionally, criminal prosecutions will remain the favoured avenue for serious environmental offending.
Pros and cons for businesses
The implementation of the Regulations is overall a positive thing for businesses; providing an additional and sometimes beneficial alternative when responding to environmental incident.
Where satisfied that a permitting offence has been committed, it avoids the escalation of matters to criminal prosecution (with the associated poor publicity that this brings) and is a further step towards self-regulation. Related to this, businesses may consider the aim of maintaining good relationships with the Environment Agency an important priority.
In most cases, it is also likely to be more time and cost efficient than the criminal process and avoids a hike in insurance premiums that can arise from a criminal record.
The downside to making an offer of an Enforcement Undertaking is that it requires a clear recognition of the failings of the business and the harm caused. In some cases, this might mean an offer is made that involves compensation or remedial works when, if the investigation had been left to run its course, the Environment Agency would not have had sufficient evidence to prosecute.
For the above reason, before making any admission and related offer to the regulator, any such steps need to be considered carefully.
Considerations in the event of breach
Businesses need to respond quickly in the event of a possible regulatory breach because offers of an Enforcement Undertaking need to be made prior to the commencement of legal proceedings, where considered to be appropriate/desirable.
A well thought out offer can bring the matter of a breach to a timely end for an agreed sum, in contrast to criminal investigations which are often protracted and uncertain. This is not to mention the additional negative connotations that can be commercially damaging. Furthermore, any incident dealt with in this proactive way may prompt a useful reassessment of existing compliance and crisis management systems, helping to avoid future breaches.
If you have any questions about Enforcement Undertakings or would like more information, please contact one of our specialists below.
Author: Martha NewellThis information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.