SEPA Enforcement Report 2015-2016 SEPA Enforcement Report 2015-20161 Foreword The Scottish Environment Protection Agency’s (SEPA) Enforcement Report is an annual publication. The Enforcement Report provides an overview of enforcement action taken by us, summarising how we have deployed the enforcement tools which are available to us to deal with those who have failed to comply with the environmental legislation, which exists to protect Scotland’s environment, local communities and our economy. The enforcement tools available to us have assisted us in delivering a number of successful actions over recent years. This report will be the final report in its current format, which focuses largely on the deployment of Statutory Notices, Final Warning Letters and Reports to the Procurator Fiscal. This is because the range of enforcement tools available to us changed on 1 June 2016, when our new Enforcement Policy came into effect. Our next report will also include details of the way in which SEPA has deployed Fixed Monetary Penalties, Variable Monetary Penalties, Enforcement Undertakings and Non-Compliance Penalties, all of which are now available to us to achieve our outcomes. In comparison to 2014- 2015, SEPA utilised its formal enforcement tools less frequently. You will see more detail of this in Section 1.1.1. During this time, the rates of compliance of those we regulate improved. Section 1.3.2 of the report shows a reduction in the average level of fine imposed by the Scottish Criminal Courts for environmental offences over the last year as well as exploring some background to this, and illustrates the dramatic effect in England of the introduction of Sentencing Guidelines for environmental offences by the English Sentencing Council. 1 This report covers the period from 1 April 2015 until 31 March 2016. References in this paper are to financial years running from 1 April to 31 March 2 Figure 202 demonstrates the increasing use by the Scottish criminal courts of significant sentences, other than fines in environmental cases, such as custodial sentences amounting to 29 months imprisonment, restriction of liberty orders totalling 12 months and community payback orders of 770 hours. 2015-16 also saw the largest confiscation order to date for environmental offences in Scotland, amounting to over £345,000. There remains, however, a need for significant effort in order to meet the commitments of One Planet Prosperity: Our Regulatory Strategy. We will continue to support those we regulate to enable them to meet their legal and environmental obligations, achieve compliance quickly and help them to move ‘beyond compliance’, and continue strongly tackling non-compliance and criminal activity. Non - compliance is not up for discussion as we transform SEPA into a world class Environment Protection Agency. Calum MacDonald Executive Director 2 Figure 20 shows the outcome of cases reported to the PF by SEPA in 2012-2013 to 2014-2015 which resulted in a conviction, as of 14 September 2016 3 Contents 1. Formal enforcement action ........................................................................................ 5 1.1 Overview of enforcement activity in 2015-2016 ................................................... 6 1.1.1 Formal enforcement action ................................................................................. 6 1.1.2 Referrals to PF under each regime ..................................................................... 8 1.1.3 Statutory notices served under each regime ..................................................... 10 1.1.4 Final warning letters served under each regime in 2015-2016 .......................... 11 1.2 Convictions secured in 2015-2016 .................................................................... 12 1.2.1 Total number of convictions secured in 2015-2016 ........................................... 12 1.2.2 Convictions secured in 2015-2016 by regime .................................................... 13 1.3 Fine levels ......................................................................................................... 14 1.3.1 Total fine levels ................................................................................................. 14 1.3.2 Average fine levels where fines imposed by criminal courts .............................. 15 1.3.3 Range of fines ................................................................................................... 17 1.3.4 Fine levels by regime ........................................................................................ 18 1.3.5 Status of cases reported by SEPA to the PF in the previous three years (as at 14 September 2016) ..................................................................................................... 21 2. 2015-2016 outcomes – case examples ................................................................... 25 2.1 Cases resulting in imprisonment, restriction of liberty or community payback orders 25 2.3 Fines in excess of £10,000 ........................................................................................ 27 3 Civil penalties .......................................................................................................... 28 4 1. Formal enforcement action During the financial year 2015-2016, SEPA had a number of enforcement options in its toolkit. These ranged from informal verbal advice, guidance and advice letters, to the use of more formal enforcement tools, including final warning letters, statutory notices and reports prepared and submitted to the Procurator Fiscal (PF) requesting consideration of prosecution. Enforcement action is only one tool in a package of measures which SEPA can deploy, often in partnership with others, to achieve positive outcomes for Scotland’s environment, economy and communities. Where there is non-compliance our experience is that most of those we regulate respond to our advice and guidance and come into compliance. Many are also increasingly recognising the value of compliance and good environmental practice in delivering outcomes not just for the environment but for their business and the communities they operate in. Whilst advice and guidance will therefore continue to be our main route to securing compliance, there will be circumstances where it is appropriate for us to take formal enforcement action, indeed depending on the circumstances we may refer a matter directly to the Procurator Fiscal without utilising other enforcement tools first. This report focusses largely on SEPA’s use of formal enforcement tools. 5 1.1 Overview of enforcement activity in 2015-2016 1.1.1 Formal enforcement action In 2015-2016, we: referred 21 cases to the Procurator Fiscal (PF); served 76 statutory notices (does not include information notices); issued 111 final warning letters. Figure 1: Enforcement actions taken by SEPA in 2015-2016 21 Referrals to the PF 111 76 Statutory Notices Final Warning Letters SEPA’s formal enforcement actions taken since 2011-2012 to 2015-2016 are set out in table 1 & figure 2 below. Table 1 Enforcement Action taken by SEPA Type of Total for Total for Total for Total for Total for enforcement action 2011-12 2012-13 2013-14 2014-15 2015-16 Referrals to PF 37 33 27 36 21 Statutory notices 124 93 93 116 76 Final warning letters 160 93 137 141 111 6 Figure 2: Enforcement actions taken by SEPA from 2011-2012 to 2015-2016 Referrals to PF Statutory notices Final warning letters 160 160 141 137 140 124 116 120 111 100 93 93 93 76 80 60 37 36 40 33 27 21 20 0 2011-2012 2012-2013 2013-2014 2014-2015 2015-2016 Table 1 and Figure 2 above show a reduction in the level of formal enforcement action undertaken by SEPA in comparison to the previous year. Whilst it is difficult to be definitive over the reasons behind increases or decreases in the level of formal enforcement action undertaken in different years, the Compliance Assessment Scheme (CAS) operated by SEPA is a useful tool to consider when looking at such data. CAS outlines how well permitted operators in Scotland have met the conditions of their licences on a calendar year basis. In 2014, of the 5305 licensed activities assessed as part of the scheme, 88% (4666) were assessed under CAS as compliant and 12% (639) were assessed as non-compliant. In 2015, of the 5470 licensed activities assessed as part of the scheme, 90.4% (4944) were assessed under CAS as compliant and 9.6% (526) were assessed as non- compliant. There was, therefore, a 20% reduction in the percentage of operators assessed as non-compliant in 2015 as compared to 20143. 3 Calculated by dividing the 9.6% non-compliance figure in 2015 by the 12% non-compliance figure in 2014 7 The reduction in non-compliance is likely to be a significant factor behind the drop in the number of formal enforcement activities undertaken by SEPA in the 2015-16 financial year, when compared to the 2014-15 financial year. Although difficult to give exact reasons behind the 20% reduction in the number of sites assessed as non-compliant in 2015 compared to 2014, it should be noted that in 2014/2015, significant resource was invested by SEPA in targeting non-compliant sites. For example, page 9 of the SEPA Enforcement Report 2014-2015 included information regarding a specific initiative undertaken to address non-compliance in respect of the End Of Life Vehicle sector, which traditionally had a poor compliance record. The resource invested in 2014-2015 in trying to improve non-compliance appears to have worked to an extent, either in terms of operators improving