Legislation Update: Civil Sanctions and the Packaging Amendment Regulations

Tessa Bowering

Senior Environment Officer (Waste)

US EPA study on complianceRegulatory compliance

Never comply

Always comply

?

Outcome focussed outcomes

A. To Stop Offending – aim to stop an illegal activity from continuing

B. To Restore and/or Remediate – aim to put right environmental harm or damage

C. To Bring under Regulatory Control – aim to bring an into compliance with the law

D. Punish and/or Deter – to punish an offender and/or deter future offending

RES Act Civil Sanctions

RES Act

Fixed Monetary Penalties

Stop Notice Enforcement Undertaking

Variable Monetary Penalty

Compliance Notice Restoration Notice

Civil sanctions

English legislation 6 April 2010

Welsh legislation 15 July 2010

Not for immediate use - from 4 January 2011

EPR offences from October 2011?

Civil Sanctions – What are they?Fixed Monetary Penalty (FMP)

£300 for companies£100 for individualsDiscount for early paymentPenalty for late paymentDebt recovery for failure to pay – not prosecution

Variable Monetary Penalty (VMP)Calculation methodology£250k cap per offenceThird Party UndertakingsDebt recovery for failure to pay – not prosecutionCan easily be combined with Compliance & Restoration Notices

Restoration Notice (RN)

Specified steps to restore harm

Third Party Undertakings

Can prosecution for original offence, if not complied with and no VMP has been served; or

Non-compliance penalty

Compliance Notice (CN)

Specified steps to come back into compliance

Same provisions as Restoration Notices

Civil Sanctions – What are they?

Stop Notice (SN) Reasonable belief that the activity:

Is causing or presents a significant risk of causing, serious harm to human health and/or the environment; andInvolves or is likely to involve an offence.

Compensation provisionsNew offence – Failure to comply with a Stop Notice

Enforcement Undertaking (EU)Offered voluntarily by the offender - not imposed by the regulatorReasonable grounds to suspect the person of an offenceCan be accepted or rejected – subject to our policy/criteriaFailure to comply can lead to prosecution for original offence or impose a different civil sanction

Table of civil sanctions - the Producer Responsibility Obligations (Packaging Waste) Regulations 2007Offence under these regulations Fixed monetary penalty Variable monetary penalty Enforcement undertaking

Regulation 40(1)(a)

Registration

Yes Yes Yes

Regulation 40(1)(b)

Recover and Recycling Targets

No Yes Yes

Regulation 40(1)(c)

CoC

Yes No No

Regulation 40(3)

Scheme fails R&R targets

No Yes Yes

Regulation 40(7)

Delay/obstruct auth. person

No Yes No

Regulation 40(8)(a)

Group – not comply with R&R

No Yes Yes

Regulation 40(8)(b)

Group – no CoC

Yes No No

Variable Monetary Penalties (VMP’s)

A Notice requiring an offender to pay a proportionate monetary penaltyIntended for the more serious cases of non-compliance where prosecution is not considered to be in the public interestThe main purpose of a VMP is to remove the financial benefit obtained by the offender as a result of their non-compliance1 VMP per offenceMaximum penalty for an “either-way” offence is £250kMaximum penalty for a “summary-only” offence cannot exceed the maximum amount of that fine.Minimum amount?Third Party Undertakings (TPUs)Cannot be issued retrospectively

Enforcement Undertakings (EUs) (1)A voluntary offer from an offender to make amends for an offence and its effectsProactive or ReactiveWe can accept or reject itIf we choose to accept, it becomes a legally binding written agreement between the offender and us

Enforcement Undertakings (EUs) (2)

It must specify:Actions to stop offence & ensure no recurrenceActions to ensure restorationActions to ensure benefit to those affectedWhere restoration is not possible – must specify equivalent benefit to the environment; andthe period when action must be completed.

For Further Information

http://www.environment-agency.gov.uk/business/regulation/116844.aspx

PACKAGING REGULATIONS - AMENDMENTS

The Producer Responsibility Obligations (Packaging Waste) (Amendment) Regulations 2010

Came into force on 26th November 2010

Main points to be covered: target changes, revised position on conversion and pack/fill at the same time, allocation method for small subsidiary companies, businesses experiencing financial difficulties, provision of SIC codes, PRN/PERN revenue reporting, IARs, change from small to large reprocessors/exporters

Target Changes

Targets were set up to 2010

New targets were needed for 2011 onwards

Defra initially consulted on targets up to 2020

Targets set for just 2 years (new government and Waste Policy review)

Conversion and Pack/fill

Previously where conversion and pack/fill occurred at the same time, the conversion obligation passed back up the chain

Revised position removed the words ‘at the same time’

Position now adopted to the ‘same process’

Example

Bottle filling line – pre-forms blown to full size and then filledPre-amendment position: conversion and pack/fill obligationPost amendment position: pack/fill obligation. Conversion obligation passes up to pre-form manufacturer.Blowing to full size and filling occurs as part of the same process

Allocation Method

Previous regulations prevented subsidiaries who had a t/o below £2 million from using the allocation method

Now corrected – all businesses with at/o below £5 million can use the allocation method

Businesses in Financial Difficulties

Amendment in regulations to require businesses to advise when they get into difficulties.

Useful so that we can communicate with the right contacts, ensure obligations are not lost, issue for reprocessors using NPWD – move to manual process to control PRN issue.

No offence for failure to notify us.

Provision of SIC codes

All producers must provide their SIC code as part of the registration process

PRN/PERN Revenue reporting

Must now report under 6 categories

Any deviation from forecast revenue must be explained (10% threshold)

Categories: Infrastructure investment, funding collection, reduction in prices and development of new markets, cost of complying, future investment and communications.

Independent Audit Reports

Requirement for reprocessors and exporters to submit an IAR has been removed from the regulations.

Small to Large reprocessor/exporter

Regulations now explicitly require the additional fee to be paid within 28 days of the change.