US EPA study on compliance

Legislation Update: Civil Sanctions and the Packaging Amendment RegulationsTessa BoweringSenior Environment Officer (Waste)

US EPA study on compliance

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

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 Civil Sanctions – What are they? • 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

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 Civil Sanctions – What are they?

Table of civil sanctions - the Producer Responsibility Obligations (Packaging Waste) Regulations 2007

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.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 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.

US EPA study on compliance