Enforcement undertakings – when the EA will consider accepting an offer

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In a recent article, we provided an overview of enforcement undertaking (“EU”) offers. To recap briefly, an EU offer is a voluntary agreement proposed by a business or an individual (“the offeror”) when the Environment Agency (“EA”) has reasonable grounds to suspect that particular environmental offences have been committed by the offeror.

An EU offer is available for acceptance by the EA as an alternative sanction to prosecution or monetary penalty for handling particular environmental offences. Once an EU offer is accepted by the EA, it becomes a legally binding written agreement between the offeror and the EA.

To understand why an offeror would submit an EU offer, and what offences can be dealt with by way of an EU, review our previous article in this series.

In this article, we will focus on when the EA will consider accepting an EU offer. The key government guidance which addresses when the EA will consider accepting EU offers is Annex 1: RES Act – the Environment Agency’s approach to applying civil sanctions and accepting enforcement undertakings – GOV.UK (“Annex 1: RES Act Guidance”).

When the EA will consider accepting an EU offer

The EA are more likely to accept offers when they are offered early and proactively.

According to the Annex 1: RES Act Guidance, generally, the EA will only consider accepting an EU offer when:

  1. they are confident the terms of the EU will be complied with
  2. they believe a breach of relevant legislation has occurred
  3. they consider the EU to be the correct regulatory outcome in factoring in:
    1. the nature of the offence and its effect
    2. other forms of enforcement available, to remedy the issues identified, to the environment and the community; however, the EA will preserve its discretion to accept offers which may be exceptional or otherwise desirable in the public interest
  1. the offer is above what the offeror would normally need to do to comply
  2. the offer is provided in good faith
  3. the offeror makes a positive commitment, at the right company level to stop the offending conduct or alleged breach and to maintain compliance
  4. the offeror rectifies the consequences of the conduct, including interacting with any third party affected by the offence
  5. the offer does not contain restrictions on how the EA may publish its acceptance in cases involving pollution of the environment or harm to human health and it is shown that any necessary remediation or restoration work started or will start at the earliest opportunity

When the EA will not normally accept an EU offer

According to the Annex 1: RES Act Guidance, the EA will not normally accept an offer:

  1. for an incident or breach which has been classified under the CCS or CICS as:
    1. category 1, unless there is, at most, low culpability
    2. category 2, unless there is, at most, negligence
  2. where the EA have started legal proceedings
  3. where the offence was intentional or of the most severe environmental impact; however, the EA will not rule it out, as it will always apply discretion
  4. where the EA have already decided that a prosecution is appropriate in the public interest
  5. made after issue of a variable monetary penalty notice of intent

The EA will not normally accept an EU offer if it contains:

  • a clause denying liability
  • any clause that sets up defences for possible breach of an EU.

When the EU offer is accepted

Accepting an EU offer made by the offeror is always at the discretion of the EA; however, if accepted, it becomes a legally binding written agreement between the offeror and the EA.

What happens if there is a failure to comply with an EU

If an offeror fails to comply, either fully or in part, with an EU, the EA are likely to do one of the following:

  • serve a variable monetary penalty, compliance notice or restoration notice on the offeror
  • prosecute for the original offence
  • vary or extend the time for complying with an EU

Concluding remarks

If the EA are prosecuting you and/or your business for an offence which an EU offer can be made to the EA as an alternative to being prosecuted, we urge you to seek legal advice from a solicitor who can advise you on this option, the process, and help you in preparing the offer. EU offers can also be made proactively before a prosecution has commenced.

At Dyne Solicitors, we have extensive experience in preparing EU offers which are acceptable to the EA. An important element of preparing the EU offer is in framing the offer to ensure all the factors the EA will expect to be addressed are addressed. Otherwise, there is a risk the EA will reject the offer and the prosecution will continue.

If you would like legal support and advice, please contact James Edes today.