Increased use of packaging undertakings shows benefit of environmental civil sanctions

Figures show an increase in the number of enforcement undertakings accepted by the regulator, up from  nine undertakings included in its last update in August. Companies donated over £164,000 to environmental charities and good causes as part of their commitments.

Enforcement undertakings enable businesses to make a formal, voluntary offer to the EA to rectify any damage to the environment caused by breaches of certain environmental regulations such as those relating to hazardous waste, packaging waste and harm to water resources. Undertakings are one of six  civil sanctions made available to the EA from January 2011. It can also issue enforcement notices, and fixed and variable penalty fines.

An undertaking must be  offered by a company on a voluntary basis, rather than being requested or suggested by the EA. It must identify any steps the business will take to put right any harm caused, and any steps it intends to take to return to legal compliance both in the immediate and the long term. It can also include providing compensation for the local community. If the EA accepts an enforcement undertaking, the proposal it contains becomes a legally binding voluntary agreement.

Environmental law expert Simon Colvin of Pinsent Masons, the law firm behind Out-Law.com, said that the news indicated the "value and benefit" of enforcement undertakings to the regulator.

"Enforcement undertakings are a more appropriate sanction for what are often purely technical breaches of law as they don't come with the stigma of a criminal prosecution," he said. "Their increased use also supports the argument that civil sanctions should be introduced for a wider range of environmental offences. This is a step that the Government has postponed on a number of occasions. [Cabinet Office Minister] Oliver Letwin is attending an event on this subject next week in London and it will be interesting to see whether a timetable emerges for the extension of civil sanctions to further offences under the Environmental Permitting Regulations (EPR) 2010."

The Government confirmed in March that it would not introduce civil sanctions for breaches of the EPR when the latest revisions to the regulations took effect in April this year, citing the lack of a "cross-Government position" on the use of the sanctions and additional scrutiny requirements. It is now undertaking further work on "whether and when" these can be introduced, it has said. 

"Critics of enforcement undertakings have questioned whether the donation of money to local charities somehow influences the EA's decision-making process," Colvin said. "Personally I don't think it does, and the distribution of money in this way can only serve to benefit all those involved."

Colvin added that companies committing to enforcement undertakings for environmental offences should be careful to "get the detail right" and ensure any commitments were fulfilled.

"The risk of prosecution will remain until the EA issues a certificate to confirm the undertaking has been satisfied," he said.

The EA continued its crackdown on illegal waste sites in October with a further three arrests relating to illegal waste sites in East London. The arrests were part of a multi-agency operation involving Essex Police and the New Scotland Yard-based London Regional Asset Recovery Team and involved two illegal waste sides in Barking and Stratford as well as searches of several residential and business addresses. Earlier in October 10 people were arrested as part of a "complex investigation" into suspected toxic waste offences.

A spokesman for the EA encouraged members of the public with information about waste crime incidents to come forward.

"Illegal waste sites or fly-tipping put the environment at risk and a significant amount of taxpayers' money is used to clear sites like these," he said. "This sort of illegal activity must be stopped and we would encourage people to provide us or the police with information that will help us find those responsible and to prevent these kinds of incidents happening."