Legislation Update: Civil Sanctions
and the Packaging Amendment
Regulations
Tessa Bowering
Senior Environment Officer (Waste)
US EPA study on compliance
Regulatory compliance
Never comply
Always comply
?
Outcome focussed outcomes
A. To Stop Offending
– aim to stop an illegal
activity from
continuing
C. To Bring under
Regulatory Control –
aim to bring an into
compliance with the
law
B. To Restore and/or
Remediate – aim to put
right environmental
harm or damage
D. Punish and/or Deter
– to punish an offender
and/or deter future
offending
RES Act Civil Sanctions
RES Act
Fixed Monetary
Penalties
Variable Monetary
Penalty
Compliance Notice
Stop Notice
Restoration Notice
Enforcement
Undertaking
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 individuals
Discount for early payment
Penalty for late payment
Debt recovery for failure to pay –
not prosecution
Variable Monetary Penalty (VMP)
Calculation methodology
£250k cap per offence
Third Party Undertakings
Debt recovery for failure to pay –
not prosecution
Can 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; and
Involves or is likely to
involve an offence.
Compensation provisions
New offence – Failure to
comply with a Stop Notice
Enforcement Undertaking
(EU)
Offered voluntarily by the offender
- not imposed by the regulator
Reasonable grounds to suspect
the person of an offence
Can be accepted or rejected –
subject to our policy/criteria
Failure 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 2007
Offence 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
penalty
Intended for the more serious cases of non-compliance where
prosecution is not considered to be in the public interest
The main purpose of a VMP is to remove the financial benefit obtained
by the offender as a result of their non-compliance
1 VMP per offence
Maximum penalty for an “either-way” offence is £250k
Maximum 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 effects
Proactive or Reactive
We can accept or reject it
If 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 recurrence
Actions to ensure restoration
Actions to ensure benefit to those affected
Where restoration is not possible – must specify
equivalent benefit to the environment; and
the period when action must be completed.
For Further Information
http://www.environmentagency.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 filled
Pre-amendment position: conversion and
pack/fill obligation
Post 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.