Policy paper

Annex 3: The Control of Mercury (Enforcement) Regulations 2017 – the Environment Agency's enforcement approach

Updated 11 December 2023

Applies to England

Under the Control of Mercury (Enforcement) Regulations 2017 (referred to as the Control of Mercury Regulations) breaches of Regulation (EU) 2017/852 and additional requirements in the Control of Mercury Regulations are criminal offences.

The Environment Agency may impose a civil penalty for many of these breaches instead of pursuing a criminal sanction - see Breaches for which we can impose a civil penalty.

Annex 3 explains:

• breaches for which we can impose a civil penalty
• breaches that are a criminal offence
• how we will decide which enforcement option to pursue
• how we will calculate the civil penalty
• our nature of the breach assessment
• our additional enforcement position

You must read this annex with the enforcement and sanctions policy which explains how we will use our enforcement powers.

1. Breaches for which we can impose a civil penalty

We may impose civil penalties for the breaches of Regulation (EU) 2017/852. They relate to mercury, mercury mixtures, mercury compounds and mercury containing products that are:

• imported
• exported
• used
• converted and stored

We may also impose a civil penalty for failing to comply with an information notice or enforcement notice.

2. Breaches that are a criminal offence

The breaches of Regulation (EU) 2017/852 and failing to comply with an information or enforcement notice are also criminal offences.

It is also a criminal offence to obstruct and fail to provide assistance or information.

We cannot pursue a criminal offence and impose a civil penalty for the same breach.

3. How we will decide which enforcement option to take

We will make an initial assessment to work out whether to pursue a criminal offence or impose a civil penalty.

3.1 Our initial assessment

We will assess:

• the seriousness of the offence based on the actual or potential harm done
• the culpability (blame) of the offender
• the extent to which a sanction will deter future offending
• the extent to which a sanction is needed to punish
• how we will achieve the outcome we seek to achieve

We will also consider aspects of the guidance on how the Environment Agency makes enforcement decisions in section 9 of the enforcement and sanctions policy as appropriate.

4. How we will calculate the civil penalty

If we decide to impose a civil penalty, we will set the penalty using the stepped approach - see section A of Annex 2: The Environment Agency’s penalty setting approach to the climate change schemes.

Our normal ‘nature of the breach’ assessment and additional enforcement position apply to all Control of Mercury Regulations breaches where we decide to impose a civil penalty. Our nature of the breach assessment explains how we will determine the normal ‘initial penalty amount’ (see section A of Annex 2).

However, before we set the initial penalty amount we will take account of any representations we receive.

4.1 Our nature of the breach assessment

The maximum civil penalty amount is up to £200,000. We will normally use the statutory maximum as the initial penalty amount. This is because the civil penalties in the Control of Mercury Regulations have been set based on the seriousness of the breach taking into account the:

• affect the breach has on the integrity of the working of the Regulations
• environmental effect of the breach, where relevant

However, we may decide to use an initial penalty amount lower than the statutory maximum where we consider the breach warrants this, for example when:

• a breach is serious because of its potential for environmental harm but the actual harm caused is much less
• we impose a civil penalty for failure to comply with an enforcement notice and we do not think the statutory maximum of £200,000 is justified

4.2 Additional enforcement position

We may not impose a civil penalty where the following apply:

• we consider giving advice and guidance will be sufficient
• it is not necessary to deter future offending

If after we have given advice and guidance the breach is not put right then we may pursue enforcement action.

5. How we will use criminal sanctions

If we pursue a criminal sanction, it could be:

• a warning
• a formal caution
• prosecution

For the detail, see enforcement and sanctions policy section 7.4, enforcement options: criminal proceedings.