In 2014 new sentencing guidelines for environmental crime were introduced. Since then, average fines at court for environmental offences have been on the rise, doubling from an average fine per company of £55,000 in 2015 to £110,000 in 2016.
If the £20.3m fine for Thames Water in 2017 is anything to go by, then the upward trend will continue in earnest.
Prosecutions against environmental permit holders usually follow a series of increasingly more serious Environment Agency (EA) interventions. The evidential planks are the compliance assessment reports that impose points for non-compliance.
At the end of the year these points are used to assign an operational risk appraisal (OPRA) banding. For example, 30.1 points (less than a single category 2 offence) is a band D operation.
In 2017, 385 of 13,890 permitted sites in England were rated in the lowest bands – D, E and F – and 75 such sites had a D-F banding for two consecutive years. The EA has received Government direction that persistently offending waste sites must either be brought into compliance or removed from the industry.
A reputable and well-meaning waste operation can easily fall within a D-F OPRA banding. A site like this is going to be visited more frequently by the EA. More visits from the EA generally expose operators to the risk of more points, and an increase in points can lead to an increase in the severity of EA intervention.
It is a vicious circle. Increased intervention will usually manifest as enforcement notices, suspension notices, investigatory notices and interviews under caution. If the EA’s investigation and action is not halted there, it will probably move towards prosecution and/or permit revocation. The impact of either will be potentially disastrous for waste operators.
The biggest mistake a waste operator can make is failing to realise it is on the path of ever-increasing intervention. But there are certain key measures it can take early in that process which will decrease significantly the chances that draconian steps will be taken.
Dyne Solicitors has developed a seminar identifying the regulatory issues that face a waste site, both from an EA and health & safety perspective. It is designed to help operators identify and appreciate the warning signs, and to provide them with the knowledge they need to take appropriate action.
The next seminar will be held at 9am on 11 October at Volvo Trucks, Wedgnock Lane, Warwick CV34 5YA.