Polluters face bigger fines under new guidelines

Construction companies face massively increased fines for breaching environmental legislation from 1 July 2014, warns Dr Richard Coulton. 

In its recently published guidelines (Environmental Offences – Definitive Guidelines) the Sentencing Council sets out parameters for the judiciary and magistrates on the sentencing of environmental offences.

What they have come up with is a rationale for imposing fines that is based on three factors, namely culpability, harm and size of the responsible organisation. 

The guidance subdivides the culpability factor into four classes, ranging from “low to no culpability” (for example where the incident was the result of accident or action of a rogue employee) through to “deliberate” where there was an intentional or flagrant breach of the law by those in position of responsibility.

Similarly harm is split into four categories comprising:

• Category 1 – Covering major incidents where there is a release of hazardous/noxious chemicals into the environment resulting in major clean up or rehabilitation costs.
• Category 2 – Incidents causing significant environmental (or human health) damage resulting in significant cleanup/rehabilitation costs.
• Category 3 – Minor localised damage resulting in low clean up/rehabilitation costs.
• Category 4 – Incidents where there was a risk of minor localised damage.

The guidelines state that the court should determine the offence category based solely on these two factors and then assess the fine based on upon tabulated values depending on the company’s turnover which is again split into four ranges:

• Large – (greater than £50m turnover)
• Medium – (£10m to £50m turnover)
• Small – (£2m to £10m turnover)
• Micro – (turnover not more than £2m)

The guidance then presents tabulated ranges of fines and a recommended “starting point” based on these three factors.  

Prior to this, fines have been issued on an ad hoc basis and without any guidelines, there has been little or no consistency in the sentences handed out. The fines issued, when reviewed by the Sentencing Council, were deemed to be far too low and often did not reflect the seriousness of the offence committed.

These recently published guidelines should put an end to this. They mean that as of 1 July, a clear sentencing rationale based on culpability, harm and size of the responsible organisation will be used to determine the size of fines imposed on companies polluting the environment.

Potential fines vary from a minimum of between £100 and £700 for an incident by a micro company resulting in a risk to the environment, through to between £450,000 and £3m for a deliberate act causing a major pollution incident by a large company. While this represents the upper range, a typical pollution incident as a result of negligence by a large company could result in a fine of between £22,000 and £750,000 depending on its severity.

So what does this mean for the construction sector?

With the risk of potential fines of this magnitude, less scrupulous construction companies which in the past may have simply factored the cost of any potential fines into overall project costs, rather than take the necessary actions and precautions to mitigate pollution risks, can no longer afford to have this attitude. It will no longer be cheaper to offend, than take the necessary steps to protect the environment.

Furthermore, the many construction companies that haven’t behaved in this cynical way, but which are less than completely clear about the environmental implications of their activities, also need to carefully manage the environmental risk imposed by their operations and in particular actively address how they manage the disposal of waste.

A good starting point for organisations would be to introduce a programme of education for their site managers and environmental offices. By increasing awareness of the problem companies can help their site engineers better manage the risk of water pollution. For instance, off the back of this, we have developed a series of free CPD courses which provide practical guidance on how to plan works to minimise water contamination and how to implement appropriate treatment solutions. Such education should be embraced, rather than companies relying on “on the job learning”.

As Mike Summersgill, president of the Chartered Institute of Waste Management (CIWEM) has said: “Far too many employers assume that if you don’t learn about waste water treatment at college you will instead pick it up somehow. Companies cannot afford to be this casual about such an environmentally and legally important subject. Companies that rely on their people learning on the job are treading a dangerous path as that often means learning by your mistakes – and we can’t afford to have mistakes when it comes to the disposal of waste water from construction sites.” 

The UK is at the forefront in developing affordable, tried and tested technologies to tackle these issues. The new guidelines mean there has never been a greater reason for all companies to take a look at them.

Dr Richard Coulton is CEO of Siltbuster. www.siltbuster.com