Legal brief: Civil sanctions and water pollution

12th January 2014

Ldtl 7

Related Topics

Related tags

  • Construction ,
  • Consultancy ,
  • Stewardship ,
  • Stakeholder engagement ,
  • Management


Paul Gehres

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.


Subscribe to IEMA's newsletters to receive timely articles, expert opinions, event announcements, and much more, directly in your inbox.

Transform articles

SBTi clarifies that ‘no change has been made’ to its stance on offsetting

The Science Based Targets initiative (SBTi) has issued a statement clarifying that no changes have been made to its stance on offsetting scope 3 emissions following a backlash.

16th April 2024

Read more

While there is no silver bullet for tackling climate change and social injustice, there is one controversial solution: the abolition of the super-rich. Chris Seekings explains more

4th April 2024

Read more

One of the world’s most influential management thinkers, Andrew Winston sees many reasons for hope as pessimism looms large in sustainability. Huw Morris reports

4th April 2024

Read more

Vanessa Champion reveals how biophilic design can help you meet your environmental, social and governance goals

4th April 2024

Read more

Alex Veitch from the British Chambers of Commerce and IEMA’s Ben Goodwin discuss with Chris Seekings how to unlock the potential of UK businesses

4th April 2024

Read more

Regulatory gaps between the EU and UK are beginning to appear, warns Neil Howe in this edition’s environmental legislation round-up

4th April 2024

Read more

A project promoter’s perspective on the environmental challenges facing new subsea power cables

3rd April 2024

Read more

Senior consultant, EcoAct

3rd April 2024

Read more

Media enquires

Looking for an expert to speak at an event or comment on an item in the news?

Find an expert

IEMA Cookie Notice

Clicking the ‘Accept all’ button means you are accepting analytics and third-party cookies. Our website uses necessary cookies which are required in order to make our website work. In addition to these, we use analytics and third-party cookies to optimise site functionality and give you the best possible experience. To control which cookies are set, click ‘Settings’. To learn more about cookies, how we use them on our website and how to change your cookie settings please view our cookie policy.

Manage cookie settings

Our use of cookies

You can learn more detailed information in our cookie policy.

Some cookies are essential, but non-essential cookies help us to improve the experience on our site by providing insights into how the site is being used. To maintain privacy management, this relies on cookie identifiers. Resetting or deleting your browser cookies will reset these preferences.

Essential cookies

These are cookies that are required for the operation of our website. They include, for example, cookies that enable you to log into secure areas of our website.

Analytics cookies

These cookies allow us to recognise and count the number of visitors to our website and to see how visitors move around our website when they are using it. This helps us to improve the way our website works.

Advertising cookies

These cookies allow us to tailor advertising to you based on your interests. If you do not accept these cookies, you will still see adverts, but these will be more generic.

Save and close