Legal brief: Civil sanctions and water pollution
Simon Colvin and Samantha Deacon describe the first enforcement undertaking accepted by the Environment Agency for a pollution incident
Enforcement undertakings (EU) are a form of civil sanction available to the Environment Agency in relation to certain environment offences. An EU is a formal offer from an organisation that has committed an offence to take steps that would make amends for non-compliance and its effects.
To date the majority of EUs accepted by the EA have related to offences that have not had an environmental impact. Many have been connected to waste packaging offences. These can be described as “paper-based” offences that have a very easily discernible financial benefit.
What we have seen very little of so far is the use of EUs for offences that have resulted in environmental damage. That is primarily because they are not available for offences outlined in the Environmental Permitting Regulations 2010, under which sit the majority of water pollution and other offences that often result in harm to the natural environment.
A recent case I was involved with sheds some light on how EUs can be used effectively after a pollution incident.
Fish kill
In September 2012, during a highways related construction project, a process failed allowing styrene, an oily organic compound, to escape into a nearby watercourse and kill a number of fish.
Following an investigation by the agency, it was confirmed that one of the offences committed fell under section 4 of the Salmon and Freshwater Fisheries Act 1975 (SAFFA). Unlike water pollution offences covered by the environmental permitting regulations, civil sanctions are available for SAFFA offences. After some discussion, the regulator confirmed that it would consider an EU.
My colleagues and I worked closely with environment consultancy Environ to prepare the scope for an assessment that would determine the baseline condition of the affected watercourse, as well as an assessment of the damage and confirmation of the next steps for compensatory actions.
The agency’s guidance on EUs presents a fairly inflexible process in terms of their preparation and submission – presumably because in the majority of cases there is no environmental harm and the financial benefit is readily identifiable.
Where harm has occurred, then polluters are caught in a “catch-22”: the undertaking cannot be formulated until the extent of the damage is known, but the polluter does not want to incur the expenditure of assessing the damage unless it is clear that the agency is committed to considering an EU. In this instance, the agency gave a commitment that it would consider an EU based on a detailed damage assessment scope.
The right scope
Environ prepared a report detailing its findings alongside the various remedial options. It is important to note that, due to the nature of the fish kill, it was not possible to restock the affected tributary and therefore compensatory measures had to be considered.
Environ was able to characterise the harm to the affected watercourse by comparing the area and severity of damage with the pre-incident condition. Using tried and tested economics tools, the environmental damage could be quantified and valued to ensure the EU scope was appropriate.
The value of the damage was estimated, conservatively, at £5,000. A range of compensation offers was evaluated to reflect the cost of the damage to take account of the likely fine if the matter had gone before the courts and to reflect the level of culpability on the part of the offender. The cost-benefit analysis suggested the figure of £5,000 fitted well with a proposed sustainable drainage system (SuDS) a local wildlife trust was looking to install to reduce agricultural impacts on the river water quality.
The compensatory offer was put into a report and submitted alongside the final EU offer form. The agency reviewed the offer before confirming that the EU was acceptable. The rural SuDS scheme has been designed and it is only bad weather that has prevented the works from going ahead. It is now expected these will be completed in early 2014.
There are several positives to come from this case. First is the use of an EU to benefit the local environment and community; the alternative route would have been a prosecution and a fine. Second, the polluter has been able to use the experience for the purposes of improving its environment management systems. Finally, it also demonstrates what can be achieved when civil sanctions are made available for water pollution offences.
We would encourage the agency to use EUs more widely for offences that involve environmental damage since the necessary tools exist and are used under the Environmental Damage (Prevention and Remediation) Regulations 2009, for example. However, the regulator will need to consider updating its guidance on EUs to accommodate the more nuanced approach that is required.
Civil sanctions
The Environment Agency has been able to issue civil sanctions in relation to certain environmental offences since 4 January 2011.
Under the Environmental Civil Sanctions Order 2010, the agency has the power to issue compliance, restoration and stop notices; as well as impose fixed- and variable-monetary penalties and accept enforcement undertakings.
Civil sanctions can be used as an alternative to criminal prosecution for a number of offences, including those related to: packaging; oil storage; water resources; dangerous substances; nitrate pollution; and hazardous waste.
Simon Colvin, partner and head of the environment team at Weightmans LLP, with assistance from Samantha Deacon, an ecotoxicologist at Environ.