SEPA consults on how it will calculate fines for environmental breaches

Terry A’Hearn, chief executive of SEPA, said that having the power to impose variable monetary penalties (VMPs) on those that commit environmental offences in Scotland should SEPA deter other breaches.

"Our staff will ensure that VMPs are fairly and proportionately applied so that our enforcement actions make a really positive contribution to tackling illegal activity," A'Hearn said. "They will, as a result, help to ensure a more level playing field for legitimate operators and that prosecution is used for the most serious offending."

"Consistency in approach is our intention whilst recognising that VMPs (by their very name and nature) will ‘vary’ because they will be made specific to the circumstances of an offence, the associated impacts and behaviour of the offender," he said.

A'Hearn said that, despite the new powers to issue VMPs, SEPA is keen to encourage environmental offenders "to come forward with undertakings that offer environmental improvements and longer term gains in sustainability".

With the passage of the Regulatory Reform (Scotland) Act 2014, SEPA was given new powers to impose fixed and variable monetary penalties and to accept enforcement undertakings. For the most serious offences SEPA will be able to impose VMPs of up to £40,000 per offence. The powers reflect the Scottish Government's ‘Better Environmental Regulation’ programme and bring Scotland into line with and beyond the practice in England where VMPs are already in use, although not for all environmental offences.

Under the SEPA proposals (23-page / 197KB PDF), the precise VMPs environmental offenders will be issued with will depend on the financial benefit to the offending organisation, the environmental impact and the behaviour of the company and context of the offence.

Offenders that do not promptly report breaches or cooperate with SEPA investigations risk more severe penalties than those that adopt a "constructive approach" and proactively take quick steps to minimise the harm of breaches, SEPA said.

The SEPA proposals are open to consultation until 28 November.

“VMPs are the most significant of the new powers for SEPA under the environmental enforcement framework: the threat of a fine of up to £40,000, imposed following SEPA’s assessment of the evidence on a civil, not criminal, standard of proof, will constitute a major change to the regulatory landscape," environmental law expert Gordon McCreath of Pinsent Masons, the law firm behind Out-Law.com, said.

"The opportunity is there for regulated persons to challenge the level of fine imposed but the opening levels of fine will be set by SEPA, and the maximum fine available to them is the same as generally applies in court. So less evidence will be required to impose the same level of fine, with no preceding court procedure. That ups the stakes for regulated persons and makes it all the more important that they have environmental incident response protocols in place to respond quickly to any incident, in a way that minimises their exposure to a fine," McCreath said. 

Last month SEPA set out a new strategy for regulation of environmental legislation in Scotland. At the time it said it wanted to encourage businesses in Scotland to reduce their use of resources and develop their own practical environmental protection measures as part of a new "beyond compliance" approach to regulation.