Legislation Update: Civil Sanctions and the Packaging Amendment Regulations Tessa Bowering Senior Environment Officer (Waste)

US EPA study on compliance

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 NoticeRestoration 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 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 penaltyVariable monetary penaltyEnforcement undertaking Regulation 40(1)(a) Registration Yes Regulation 40(1)(b) Recover and Recycling Targets NoYes Regulation 40(1)(c) CoC YesNo Regulation 40(3) Scheme fails R&R targets NoYes Regulation 40(7) Delay/obstruct auth. person NoYesNo Regulation 40(8)(a) Group – not comply with R&R NoYes Regulation 40(8)(b) Group – no CoC YesNo

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 agency.gov.uk/business/regulation/ aspx

PACKAGING REGULATIONS - AMENDMENTS

The Producer Responsibility Obligations (Packaging Waste) (Amendment) Regulations 2010 Came into force on 26 th 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.