POLLUTION OFFENCES; SCHEMES OF PREVENTION AND REMEDIATION
Pollution offences; schemes of prevention and remediation
Summary of contents
Pollution offences – waste offences under s.33, Environmental Protection Act 1990 – environmental permitting offences under regulation 38 – anti-pollution works notices under the Water Resources Act 1991 – The Environmental Damage (Prevention and Remediation) Regulations in England and in Wales
UK law contains many criminal offences concerning pollution. There are criminal offences about waste and other regulatory breaches. Rafts of criminal offences exist deal with water and water pollution.
An important adjunct to criminal offences concerning pollution are the powers of public authorities to require works to ensure that pollution does not happen in the first place.
This Summary sets out a list of the most common general offences which the author has found are used in a pollution and waste context. On the whole, regulators prefer to use the most generic powers available to them, for instance under s.33, Environmental Protection Act 1990 (“EPA1990”), which concerns the deposit of waste. The approach is therefore to start with those offences which are most wide-ranging and most frequently prosecuted.
Section 33, EPA 1990 impacts on landlords and landowners, so that they can find themselves liable for the waste which has been tipped on to their own land. They have a duty to remove it. This liability is referred to below under s.33.
Another context of an offence committed under s.33 can be the requirement to pay a ‘standard’ rate of landfill tax on what is classed as an unauthorised landfill site. This is also touched on below in the text. This rate of the tax is punitive as compared with the ‘lower’ rate set by HMRC.
Many pollution offences have attached to them a provision which allows the regulator to clean up the pollution in question and to recover the cost from the polluter (remediation), and such provisions will be found in the detail legislative provisions which set out relevant offences and penalties.
Two schemes for both prevention and remediation of pollution will be found in the Water Resources Act 1991 and in the Environmental Damage (Prevention and Remediation) Regulations made for England and for Wales. These are specifically mentioned below by reason of their importance and because they allow enforcing authorities (rather than regulators) to make provision designed to stop pollution from occurring. They also provide the relevant authorities the opportunity to take steps to improve the local environment (such as the quality of water).
In addition to the key ‘substantive’ offences referred to in this Summary, there are many offences connected with matters such as the failure to comply with, or to frustrate, regulators’ requirements. For instance, reg.38(4), Environmental Permitting Regulations 2016 makes it an offence to fail to comply with a regulator’s request with a notice for the provision of information about emission levels from a regulated facility. Other such ‘ancillary’ offences concern the provision of false or misleading information, or making false entries in records (such as the records which an operator are required to keep when operating a permitted facility). These do not form part of this overview.
Fixed penalty notices are becoming more frequently an option for regulators, a form of penalty which is not the subject of this Summary.
This is nothing other than a short Summary of key offences which are applied in England and Wales, together with description of two key statutory pollution prevention and remediation schemes. The legislation itself needs to be considered in full for a proper explanation, and the legislative provisions describe the relevant penalties.
Both the Contaminated Land regime and the Town and Country Planning Act contain important provisions designed to remediate land and to prosecute offenders. These are not ordinarily key tools in the armoury of the regulators ordinarily tasked to deal with local incidents of pollution (rather than strategic issues or matters connected specifically with the planning system).
The Sentencing Council
At the start of this Summary are some links to useful website information from the Sentencing Council. These include parts of the Sentencing Council’s magistrates’ courts menu (including maximum level fines in the magistrates’ courts, which can be unlimited), and the specific Definitive Guideline for environmental offences (applied in both the magistrates’ courts and Crown Court.
The Definitive Guideline is particularly useful in setting out the approach to be used in respect of many environmental offences (using an approach which combines categories of culpability with assessments of the level of harm caused to the environment).
The Definitive Guideline also sets out the various ancillary orders which might be made (such as director disqualification, disqualification from driving, vehicle forfeiture, deprivation of property, remediation), not to mention the significance of custody, confiscation orders in the Crown Court and compensation.
RESA Sanctions (Part 3, Regulatory Enforcement and Sanctions Act 2008)
An alternative to criminal prosecution in the case of less serious offending is the opportunity to agree to a regulatory sanction, which means an enforcement undertaking.
In the case of environmental offending, the Environment Agency will accept a voluntary offer intended to put right the impact on the environment and on third parties and to make sure that the same act or omission does not occur again.
The Environment Agency’s approach to enforcement undertakings is set out at https://www.gov.uk/government/publications/environment-agencys-use-of-civil-sanctions/enforcement-undertakings-accepted-by-the-environment-agency-1-december-2019-to-31-may-2020.
KEY OFFENCES, SOME UNLIKELY OFFENDERS AND CONSEQUENCES
Whilst there are many criminal offences which deal with the consequences of pollution, two in particular deserve comment. These are both in connection with waste
Waste – the unauthorised or harmful deposit, treatment or disposal of waste
Section 33, Environmental Protection Act 1990
This section takes many varied forms. It includes:
- Depositing controlled waste
- Causing or permitting controlled waste to be deposited
- Submitting controlled waste to be submitted to a listed operation
- Causing or knowingly permitting controlled waste to be submitted to a listed operation
“Controlled waste” is defined in s.75(4), EPA 1990. It means “household, industrial and commercial waste”. Section 75 contains further refinements to the definition, to which it is also necessary to turn to the Controlled Waste (England and Wales) Regulations 2012/811. Section 33 itself contains certain other relevant exemptions, for instance to excuse waste operations in relation to “household waste from a domestic property which is treated, kept or disposed of within the curtilage of the dwelling” (i.e. putting out the bins).
A “listed operation” was originally defined in s.33(13), EPA 1990 to refer to the disposal and recovery operations set out in Annexes I and II, Waste Framework Directive. Post the ‘Brexit’ transition period, see the Waste (Miscellaneous Amendments) (EU Exit) Regulations 2019/620 Pt.2 reg.2(2).
Section 33 does not create offences where the operator has a relevant authorisation, for instance an environmental permit or a registered exemption.
Landlords and landowners
A s. 33 offence is committed where ‘fly-tipping’ occurs on land. This can have the unfortunate consequence that a landlord or landowner who does not deal with the problem is itself the target of a summons under s.33.
If a deposit of waste falls within the ambit of an offence under s.33, then the possibility of having to pay landfill tax arises. See HMRC’s Excise Notice LTF1 at paras.24 and 3 (https://www.gov.uk/government/publications/excise-notice-lft1-a-general-guide-to-landfill-tax/excise-notice-lft1-a-general-guide-to-landfill-tax). The relevant rate of tax, although described as “standard” is about 30 times the ‘lower’ rate. There is an additional range of civil and criminal penalties available to HMRC in these circumstances (see para.20 of LTF1).
Waste – environmental permitting (regulated and exempt facilities)
- Failing to operate a regulated facility without an environmental permit
- Failing to comply with environmental permit condition
- Failing to comply with the requirements of an enforcement notice, suspension notice, etc.
Section 38, Environmental Permitting Regulations 2016/1154
These offences, the first of which must be read in conjunction with reg.12, EPR 2016, extend not just to regulated facilities, but also to water discharge activities and to groundwater activities. Regulation 38 covers a contravention of reg.12(1), but also circumstances in which a person causes or knowingly permits a contravention of reg.12(1).
An offence under reg.38 often entails the commission of an offence under s.33, Environmental Protection Act 1990 (as to which, see above).
A person who operates a site without registering the site, or in circumstances in which the site does not fall within the terms of an exemption, also runs the risk of prosecution of a reg.38 offence (and therefore also a s.33, EPA 1990 offence).
Statutory schemes for the prevention and remediation of pollution
Most environmental offences have provisions associated with them which give regulators powers to take steps for the remediation of any pollution. There are specific arrangements, however, the aim of which is to secure that pollution does not occur in the first place. A breach of the requirements of notices served by the regulator in these cases is likely to result in criminal offences.
In the writer’s experience, two such schemes are of particular interest. One is under Part VII (Land and Works Powers) under the provisions of the Water Resources Act 1991 (“restoration and improvement works for controlled water”). The second consists of the Environmental Damage (Prevention and Remediation) Regulations, one of which covers England (2015) and the other Wales (2009).
POWERS OF PREVENTION, REMEDIATION AND IMPROVEMENT
Anti-Pollution works and operations, etc.
Sections 161-162, Water Resources Act 1991
Section 161 of the WRA 1991 grants the Environment Agency various powers where it appears that “and poisonous, noxious or polluting matter or any waste matter is or has been present in, or is likely to enter, any controlled waters”.
The Agency is then entitled to “carry out works and operations” removing or disposing of the matter, remedying or mitigating any pollution, and restoring (so far as it is reasonably practicable to do so) the waters “including any flora and fauna dependent on the aquatic environment of the waters, to their state immediately before the matter became present in the waters”.
Section 161ZA gives the Agency similar powers in relation to “harm”, whether or not the source of the harm can be identified. Section 161ZB grants the Agency powers to improve controlled waters (where the quality of the water is unsatisfactory).
Of more interest to the Environment Agency are the powers which it has to achieve the same ends as those set out in ss.161 and 161ZA by serving a notice on the “responsible person” requiring that person to carry out the works.
Subsequent sections make provision for the contents of works notices, include a right of appeal to an independent adjudicator (see s.161C).
Chapter II of Part VII contains detailed provisions allowing the Environment Agency the right to force entry for the purpose of enforcement, along with other supplemental provisions.
The Environmental Damage (Prevention and Remediation) Regulations
N.b. the England Regulations 2015 and the Wales Regulations 2009 (as amended)
These Regulations apply in relation to the prevention and remediation of environmental damage, which is described as “damage … to (a) a protected species or natural habitat, or a site of special scientific interest, (b) surface water or groundwater, (c) marine waters, or (d) land.
The Regulations place an obligation on the operator of an activity that causes an imminent threat of environmental damage, or an imminent threat of damage where there are reasonable grounds to believe that the damage will become environmental damage. The obligations include the requirements to take all practicable steps to prevent the damage and to notify the enforcing authority. The enforcing authority is entitled to take the requisite measures itself if the operator cannot be found or if there is an emergency.
The Regulations are similar to the obligations on a landowner in the case of private nuisance where there is a risk of damage to property. Under Part 3 of the Regulations, the enforcing authority can determine the nature of an obligation to remediate and serve an appropriate remediation notice. The recipient of the notice may appeal to an independent tribunal.
Part 4 of the Regulations contains detailed provisions concerning costs, the recovery of costs, enforcement and penalties. Six schedules to the regulations provide further detail.