Breach of Environmental Permit Penalties & Sanctions
Environmental crime encompasses a wide range of offences, including breaches of environmental permits and failure to comply with the requirements of enforcement notices.
We have represented clients across a range of industries, such as Waste Management, who have been subject to an Environment Agency investigations or prosecutions for breaching the conditions of an environmental permit or operating without the appropriate permits.
Operating without the required permit can have devastating consequences and expose your business to serious legal and financial risk.
The Environment Agency is focussed on ensuring compliance and stopping illegal activity from occurring, enforcing remediation that puts right environmental harm and punishing offenders to deter them or others from further offending.
In the last year, the Environment Agency have secured successful prosecutions, with offenders subject to substantial fines and/or proceeds of crime orders, and in some cases, imprisonment. The importance of seeking expert legal advice where a business or individual is under investigation for breaches to a permit cannot be overstated.
Sukhdip Randhawa of KANGS outlines the law governing environmental permits and illustrates the consequences of failure to comply, as experienced by the owner of a Cornish skip hire company, convicted of operating his business without environmental permits.
Contents
When is an Environmental Permit Required?
The Environmental Permitting (England and Wales) Regulations 2016 (‘the Regulations’) require permits to be obtained prior to conducting, lawfully, a very wide range of specified activities that may pollute the air, water or land.
The Environmental Permitting Regulations 2016
The Regulations provide that on application by an operator, the Regulator may grant an ‘environmental permit’ authorising:
- the operation of a regulated facility and
- that operator as the person authorised to operate that regulated facility.
The Regulations provide an interpretation of ‘regulated facility’ and class of ‘regulated facility’ and lists fourteen operations including:
- a waste operation,
- a mining waste operation,
- a small waste incineration plant,
- a flood risk activity,
- a medium combustion plant.
Requirement for an Environmental Permit
Regulation 12(1) of the Regulations provides that a person must not, except under and to the extent authorised by an environmental permit:
- operate a regulated facility, or
- cause or knowingly permit a water discharge activity or groundwater activity.
Offences
Regulation 38 states it is an offence for a person to:
- contravene regulation 12(1), or knowingly cause or knowingly permit the contravention of regulation 12(1)(a).
- fail to comply with or to contravene an environmental permit condition.
- fail to comply with the requirements of an enforcement notice or of a prohibition notice, suspension notice, landfill closure notice, mining waste facility closure notice, flood risk activity emergency notice or flood risk activity remediation notice.
Potential Defences
Regulation 40(1) provides that it is a defence for a person charged with an offence under Regulation 38(1), (2) or (3) to prove that the acts alleged to constitute the contravention were done in an emergency in order to avoid danger to human health in a case where:
- the person took all such steps as were reasonably practicable in the circumstances for minimising pollution, and
- particulars of the acts were furnished to the regulator as soon as reasonably practicable after they were done.
What penalties can be imposed for breaching an Environmental Permit?
Statutory penalties
Upon conviction a person is liable:
- before a Magistrates’ Court, to a fine, imprisonment for a term not exceeding twelve months or both,
- before a Crown Court, to a fine, imprisonment for a term not exceeding five years or both.
Environmental Civil Sanctions
Environmental civil sanctions provide an alternative form of enforcement to a criminal prosecution or formal caution.
They may be invoked only for specific offences, where the Regulator deems that it would not be in the public interest to prosecute, and that a civil sanction provides an adequate deterrent to offenders and others.
The sanctions available are:
- Fixed Monetary Penalties - these impose a fine of a fixed amount depending upon the type of offence committed.
- Variable Monetary Penalties - require the payment of a monetary penalty the amount of which varies according to the severity of the offence.
- Compliance Notices - impose steps to be taken to ensure regulatory compliance and that the offence does not continue or recur.
- Restoration Notices - require steps to be taken to restore any damage arising from the environmental offences to an agreed standard.
- Stop Notices - require an immediate stop to an activity that is causing significant environmental harm, or has the potential to do so.
- Enforcement Undertakings - are given when the Regulator accepts proposals given by the offender to rectify a non-compliance, remediate any damage and pay compensation.
Consequences of not having an Environmental Permit
A skip hire operator in Cornwall pleaded guilty to two charges of depositing and storing controlled waste on land at Mawla, Porthtowan, and land adjacent to a Western Power Distribution sub-station on Penwinnick Road near St Agnes, without an environmental permit.
The situation was further aggravated by owner of the skip hire company continuing to operate the sites after being interviewed under caution by the Environment Agency. He also had a conviction for a similar offence in 2001.
When sentenced, he was fined a total of £10,000 and ordered to pay £29,000 in costs. In addition, the Environment Agency issued a Proceeds of Crime application and was awarded £198,000.
Stephen Clark of the Environment Agency said:
“(the defendant)… deliberately operated the business without the required permits, threatening the environment and earning thousands of pounds from customers.
The Environment Agency will vigorously pursue those who flout the law in this way, and who undermine legitimate businesses.”
How We Can Help
As clearly demonstrated by the above example, operating a regulated facility without an environmental permit will expose both individuals or businesses to prosecution or other stringent penalties.
If you are concerned that your operations may have breached your environmental permit, or if you have already been contacted by the Environment Agency regarding a breach or operating without one, it is essential that you obtain immediate legal advice and guidance.
The team at KANGS offers substantial experience relating to all aspects of environmental law, gained from both advising and defending clients facing investigations, prosecution or Proceeds of Crime Orders, among other matters, arising from their trading activities.
If we can be of assistance, please do not hesitate to contact us using the details below:
Tel: 0333 370 4333
Email: info@kangssolicitors.co.uk
We provide initial no obligation discussion at our three offices in London, Birmingham, and Manchester. Alternatively, discussions can be held through video conferencing or telephone.
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