The Offshore Environmental Civil Sanctions Regulations 2018
2018 No. 800
Environmental Protection
The Offshore Environmental Civil Sanctions Regulations 2018
Made 27th June 2018
Coming into force 1st October 2018
The Schedule to the following Regulations sets out provisions containing (i) criminal offences created by statutory instruments made in exercise of powers conferred by specified enactments (as defined in section 62(4) of the Regulatory Enforcement and Sanctions Act 20081) (the “RESA offences”) and (ii) criminal offences created in exercise of powers conferred by section 2(2) of the European Communities Act 19722(the “ECA offences”).
The Secretary of State is a relevant enforcement authority (as defined in section 62(5) of the Regulatory Enforcement and Sanctions Act 2008) in relation to the RESA offences.
In accordance with section 66 of the Regulatory Enforcement and Sanctions Act 2008, the Secretary of State as both the relevant authority and the relevant enforcement authority will act in accordance with the principles referred to in section 5(2) of that Act in exercising the powers conferred by these Regulations.
The Secretary of State makes these Regulations in exercise of the powers conferred by article 2 of the Merchant Shipping (Oil Pollution Preparedness, Response and Cooperation Convention) Order 19973, sections 2(1) and (3), 3(1) and (3), and 7(9) of, and paragraph 17 of Schedule 1 to, the Pollution Prevention and Control Act 19994and section 62(2) of the Regulatory Enforcement and Sanctions Act 2008 in relation to the RESA offences.
The Secretary of State, being a Minister designated5for the purposes of section 2(2) of the European Communities Act 1972 in relation to the environment, makes these Regulations in exercise of the powers conferred by that provision in relation to the ECA offences.
Before making these Regulations, the Secretary of State consulted the persons required to be consulted by sections 2(4) and 3(4) of the Pollution Prevention and Control Act 1999.
In accordance with paragraph 2(2) of Schedule 2 to the European Communities Act 1972, sections 2(8) and 3(6) of the Pollution Prevention and Control Act 1999 and section 62(3) of the Regulatory Enforcement and Sanctions Act 2008, a draft of this instrument has been approved by a resolution of each House of Parliament.
PART 1
Preliminary
Citation and commencement
1.—(1) These Regulations may be cited as the Offshore Environmental Civil Sanctions Regulations 2018.
(2) These Regulations come into force on 1st October 2018.
Interpretation
2. In these Regulations—
“fixed monetary penalty” has the meaning given in regulation 4(3);
“FMP offence” has the meaning given in regulation 4(2);
“non-compliance penalty” has the meaning given in regulation 18(3);
“relevant permit” means any of the following—
(a) a permit within the meaning of the Offshore Chemicals Regulations 20026(authorisation to use or discharge an offshore chemical);
(b) a permit within the meaning of the Offshore Petroleum Activities (Oil Pollution Prevention and Control) Regulations 20057(authorisation to discharge oil);
(c) a permit within the meaning of the Offshore Combustion Installations (Pollution Prevention and Control) Regulations 20138(written permission to operate an offshore combustion installation);
“Tribunal” means the First-tier Tribunal9;
“variable monetary penalty” has the meaning given in regulation 11(3);
“VMP offence” has the meaning given in regulation 11(2).
Penalties may only be imposed in respect of acts or omissions occurring on or after 1st November 2018
3. The power to impose fixed and variable monetary penalties under these Regulations may be exercised only in relation to acts or omissions occurring on or after 1st November 2018.
PART 2
Fixed monetary penalties
Fixed monetary penalties: power to impose
4.—(1) If the Secretary of State is satisfied beyond reasonable doubt that a person has committed a FMP offence, the Secretary of State may, in accordance with this Part, impose a fixed monetary penalty on the person in relation to the offence.
(2) An offence is a “FMP offence” if—
(a)
(a) the offence is contained in a provision specified in column 1 of any of the tables in the Schedule; and
(b)
(b) “Yes” is set out in the corresponding entry in column 2 of that table.
(3) A “fixed monetary penalty”, in relation to a FMP offence, is a requirement to pay to the Secretary of State a penalty of the amount set out in the corresponding entry in column 3 of that table.
Fixed monetary penalties: duty to serve notice of intent
5.—(1) This regulation applies where the Secretary of State proposes to impose a fixed monetary penalty on a person in relation to an act or omission constituting a FMP offence.
(2) Before imposing a fixed monetary penalty, the Secretary of State must first serve on the person a notice of what is proposed (a “notice of intent”) that complies with regulation 6.
(3) But no notice of intent may be served if—
(a)
(a) the Secretary of State has previously imposed a fixed or variable monetary penalty on the person in relation to an offence constituted by the act or omission;
(b)
(b) the person has discharged liability to a fixed monetary penalty in relation to an offence constituted by the act or omission under regulation 5(4);
(c)
(c) the act or omission constituted a breach of a term or condition of a relevant permit and the permit has been revoked because of the breach; or
(d)
(d) criminal proceedings have been instituted in relation to an offence constituted by the act or omission.
(4) The person on whom the notice of intent is served may discharge the person’s liability for the fixed monetary penalty by paying two-thirds of the amount of the fixed monetary penalty to the Secretary of State within the period of 28 days beginning with the day on which the notice of intent is received.
(5) The person on whom the notice of intent is served may make written representations and objections to the Secretary of State in relation to the proposed imposition of the fixed monetary penalty within the period of 28 days beginning with the day on which the notice of intent is received.
Fixed monetary penalties: content of notice of intent
6. The notice of intent must—
(a) include information as to the grounds for the proposal to impose the fixed monetary penalty (including details of the act or omission referred to in regulation 5(1));
(b) state the amount of the fixed monetary penalty;
(c) state that the person on whom the notice of intent is served may discharge the liability in accordance with regulation 5(4) within the period referred to in that paragraph and include information as to how payment may be made;
(d) state that the person on whom the notice of intent is served has the right to make written representations and objections to the Secretary of State in relation to the proposed imposition of the fixed monetary penalty within the period referred to in regulation 5(5) and include information about how representations and objections may be made; and
(e) include information as to the circumstances in which the Secretary of State may not impose the fixed monetary penalty.
Fixed monetary penalties: decision to impose
7.—(1) This regulation applies where the person on whom the notice of intent was served does not discharge the person’s liability for the fixed monetary penalty in accordance with regulation 5(4).
(2) After the end of the period referred to in regulation 5(5) (period in which person may make representations and objections), the Secretary of State must—
(a)
(a) consider any representations and objections made by the person; and
(b)
(b) decide whether or not to impose the fixed monetary penalty.
(3) The Secretary of State may not impose a fixed monetary penalty on a person in relation to a FMP offence if the Secretary of State is satisfied that the person would not, by reason of any defence raised by the person, be liable to be convicted of the offence.
(4) If the Secretary of State decides not to impose the fixed monetary penalty, the Secretary of State must give notice in writing to the person on whom the notice of intent was served.
(5) If the Secretary of State decides to impose the fixed monetary penalty, the Secretary of State must serve on the person on whom the notice of intent was served a notice (a “final notice”) that complies with regulation 8.
(6) A person on whom a final notice is served must pay to the Secretary of State the amount of the fixed monetary penalty within the period of 28 days beginning with the day on which the final notice is received.
(7) The Secretary of State may at any time withdraw a final notice by giving notice in writing to the person on whom the final notice was served.
Fixed monetary penalties: content of final notice
8. The final notice must state the amount of the fixed monetary penalty and include information as to—
(a) the grounds for imposing the fixed monetary penalty;
(b) how payment may be made;
(c) the period within which payment must be made;
(d) rights of appeal; and
(e) the consequences of non-payment.
Fixed monetary penalties: appeals
9.—(1) A person on whom a final notice is served may appeal to the Tribunal in relation to the decision to impose the fixed monetary penalty on any of the following grounds—
(a)
(a) that the decision was based on an error of fact;
(b)
(b) that the decision was wrong in law;
(c)
(c) that the decision was unreasonable;
(d)
(d) any other reason.
(2) In any appeal where the commission of an offence is...
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