Environmental offences
October 1st 2009

Environmental health and safety consultancy ENHESA explains the Environmental Protection Agency 's Office of Environmental Enforcement (OEE) recent case study entitled 'A Study on the Use of Administrative Sanctions for Environmental Offences in other comparable countries and assessment of their potential use in Ireland'

The OEE's study compares and reviews up to 20 widely used administrative sanctions for environmental offences that are currently being applied across different countries, including the United Kingdom, United States, Germany and Australia.

On the basis of Irish legislation, the Environmental Protection Agency (EPA) is the national enforcing agency which is entitled to apply up to 11 different types of sanctions for legislation non-compliances.

On-spot fines are currently being enforced by the EPA, in accordance with the Litter Pollution Act 1997 (section 28) and the Safety, Health and Welfare at Work Act, 2005 (Section 79(1)). The maximum fine that can be imposed as a result of the prosecution of the offender by the EPA can reach up to Euro 3,000 when they are imposed by District Courts and a maximum fine of Euro 15 million by Circuit Judges. In 2008, the EPA prosecuted at District Court level twenty cases, the majority of which, seventeen, were made for infringing their licensing conditions.

Fourteen of these prosecutions resulted in fines being issued to the offenders and costs awarded to the EPA up to 150,953 Euros.

At present, Irish legislation allows the EPA to apply other sanctions including for example, mandatory audits, enforcement statutory notices and clean up orders, etc.

However, the OEE's study highlights 9 noncriminal sanctions that are not applied in Ireland, including for example, enforcement undertaking, warning letter, fixed penalties, variable and discretionary penalties, civil penalties, monetary benefits penalty order, environmental services order, compensation order and name and shame.

The study entailed the detailed assessment of whether the introduction in Ireland of some or all of these sanctions for environmental offences and an appeal mechanism would be in the interest of stakeholders and the protection of the environment.

According to Table 1 of the OEE study (left), the following include the main noncompliance situations in which the proposed administrative sanctions could be applied by the EPA, including for example: Enforcement undertakings could be useful where pollution has been caused by nonlicensed facilities.

Warning letters could be used as an intermediate step to a formal statutory notice.

Fixed penalties could be used for minor offences and variable penalties for more serious offences while civil penalties could be served for breaches of operating conditions of an Integrated Pollution Prevention and Control license or flytipping.

Environmental Services Order could be implemented for serious environmental offences where the offender carries out a specified project for public benefit, such as, recycling facilities, conservation or remediation work, training or education initiatives.

Compensation Orders could be an option where the offender compensates the regulator or third party for costs incurred in taking action.

Name and Shame or Publicity Orders which entail negative publicity of environmental consequences and penalties.

This could be used by the EPA and the Local Authorities on an ad-hoc basis.

The study also reviews the need to implement an appeal mechanism for the resolution of disputes related to administrative sanctions and makes recommendations on the basis of the position taken by Australia, whereby the Australian Law Reform Commission (ALRC) has recently carried out a review on their appeal process. The UK and Ireland have not yet implemented an appeal process when referring to administrative penalties whereby the polluter could take the decision forward to the Regulatory Tribunal for reconsideration of the sanction.

http://www.epa.ie/downloads/pubs/enforc ement/Admin_Sanctions_final.pdf (The Study on the Use of Administrative Sanctions for Environmental Offences in other comparable countries and assessment of their possible use in Ireland) is available online.