Thousands of construction companies are "completely under-prepared" for a new regime of strict environmental civil penalties that come into effect from midnight on 6 April 2010, a leading law firm has warned.
Following a consultation by DEFRA, the government is to introduce a set of new civil penalties to aid in the enforcement of environmental offences. These new powers will be in addition to the existing criminal penalties.
This means that any company guilty of breaking environmental laws could be subject to a new regime of civil as opposed to criminal fines and penalties from 6 April.
One of the key changes is that companies could be fined up to £250,000 for environmental breaches. All penalties will be imposed by the regulators without initial recourse to the courts, although there will be a right to appeal.
This is a reversal of the current system designed to make it easier for penalties to be imposed, but clearly this approach comes with a number of pitfalls.
Despite the risks, many companies seem to have a very limited awareness of the new regime and the new range of penalties available to the environmental regulators, according to Simon Colvin, planning and environmental lawyer at international law firm Pinsent Masons.
“Companies and their in-house and environmental teams urgently need to get up to speed with the new regulations to ensure that they understand the consequences of breaching environmental laws,” he said.
“They also need to think about how they can ensure the regulators consider the use of the new regime of civil penalties prior to the imposition of any criminal penalties. This can be done through a detailed understanding of the new regime and by making representations at the appropriate point. Other considerations include the impact on insurance premiums and other contractual arrangements.”
In 2009, environmental regulators used their existing enforcement powers approximately 30,000 times for breaches of environmental laws, with breaches ranging from minor incidents warranting site warnings to the more serious prosecutions (of which there were approximately 800).
These figures give an indication of the potential scale of impact that the new civil penalties regime could have. (Figures based on the Defra impact assessment dated June 2009 associated with the civil sanctions proposals.)