The Environment Agency (EA) have a number of tools at their disposal to enforce the Producer Responsibility Obligations (Packaging Waste) Regulations. As additional enforcement powers to prosecution rights and injunctions, less serious offending companies may face Civil Sanctions.
Are you new to packaging compliance? Has your company been obligated under the packaging regulations in previous years, but not been registered with the Environment Agency for packaging compliance?
Up until 2011, if a company had not been complying with their obligations under the packaging regulations, even unknowingly, the company would be subject to criminal prosecution in court by the Environment Agency.
In 2011 the Environment Agency introduced new modes of dealing with non-compliant organisations that allow them the option of resolving matters of non-compliance out of court in the first instance, avoiding criminal prosecution where possible.
PODCAST: Understanding the impact of non-compliance with the Packaging Regulations
We often find that companies that have been unaware of the packaging regulations and didn’t know that they had an obligation, shy away from the potential repercussions and delay starting their journey to become compliant. This podcast will explain why this is not the best plan of action and that being proactive once you do find out your company is obligated is a positive step and will benefit you in the long-run. We will be helping you to understand your obligations and the importance of being compliant.
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There are now three different options available to the Environment Agency when resolving an organisation’s historic non-compliance, depending on the severity of the company’s actions. These are:
- Enforcement undertaking – organisations fill out a form to detail any historic non-compliance with the packaging regulations, calculate the total costs that they have avoided through historic non-compliance and then propose a donation to an environmental project of their choice, in order to offset any unfair financial advantage the company had gained through non-compliance against other organisations who had been compliant with the regulations. Please note, the enforcement undertaking route is only available where the company has not been non-compliant either wilfully or negligently.
- Variable monetary penalty – a fine imposed by the Environment Agency against a non-compliant organisation. Variable monetary penalties can be levied up to a maximum of £250,000, depending on the nature and severity of the offence.
- Criminal prosecutions – prosecution under UK criminal law for the most severe offences, including wilfully or negligently providing false or misleading information.
Reactive/Proactive Enforcement Undertakings
It is important to note that there are two different types of Environment Agency enforcement undertaking processes, depending on how the historic non-compliance was identified.
The first type is reactive enforcement undertakings, in which the Environment Agency have identified that a company has been historically non-compliant with their obligations under the packaging regulations. In these instances, the Environment Agency request that these companies complete an Enforcement Undertaking form, calculate the total costs that they have avoided through historic non-compliance, and then add a 30% uplift to their avoided costs, when calculating their proposed donation.
The second type is proactive enforcement undertakings, in which the historically non-compliant company admits to their historic non-compliance before it is identified the Environment Agency. As the company themselves realised their own unfair advantage over historically compliant companies and have decided to proactively offset their advantage by proposing a donation to an environmental project, the Environment Agency allow these proactive companies to add an uplift of just 10% to their total avoided costs when calculating their proposed donation.
It is therefore highly recommendable to rectify any historic non-compliance proactively, before it is identified by the Environment Agency.
How Can Comply Direct help?
Comply Direct have extensive experience of assisting companies in rectifying historic non-compliance through both proactive and reactive enforcement undertaking procedures.
Comply Direct can help you with:
- Calculating your total avoided costs through historic non-compliance
- Providing assistance with completing of enforcement undertaking offer form and other documents required, such as methodology
- Support in the event of any EA investigation, such as an interview under caution
- Support with any subsequent negotiation with the EA, regarding amounts payable
- Assisting with the selection of an environmental project to which you will propose the donation
- Helping you to coordinate the funding of your selected environmental project
- Ensuring you have requirements in place to demonstrate to the EA your ability to ensure on-going compliance
The Environment Agency publish a list of company’s who have gone through the civil sanctions process, along with details of the monetary donations. The latest list can be downloaded here
If you would like further information about how we can assist you with rectifying historic non-compliance, please call 0844 873 1034 or email email@example.com