Scottish courts are cracking down on environmental crime as a recent case illustrates, John McGovern writes.

In the period 2014-2015, Scottish courts imposed a record total of fines of £284,000 for environmental crimes following investigation and recommendations by Scottish Environmental Protection Agency (SEPA). This tough approach on environmental crime looks set to continue, as we now see the highest ever confiscation order handed out to an Alloa based waste company. On 15 February 2016, Oran Environmental Solutions (OES) were handed a confiscation order of £345,558.43 under the Proceeds of Crime Act (POCA). OES were also fined a further £12,000 for waste related offences.

The charges relate to the company’s failure to remove waste materials from their site at Kilbagie Mill. During inspection visits, SEPA officers discovered that the main site was full and OES Ltd were storing additional waste in an unlicensed area of their site. SEPA served OES with enforcement notices ordering them to stop accepting waste and to remove the backlog of stockpiled waste. SEPA also received complaints from residents about the impact on the local community due to an increase in vermin, flies and birds. However, OES failed to implement sufficient pest control measures.

Overall, between April 2012 and July 2013, SEPA made 43 site inspections and issued 7 enforcement notices even partially suspending the licence twice. Ultimately, OES’s failure to deal with the problems sufficiently led to SPEA referring to case to the Procurator Fiscal.

Speaking about the decision, Calum MacDonald, executive director of SEPA stated: “The confiscation order reflects the costs avoided by the company in undertaking these illegal activities and is the result of close collaborative working arrangements between SEPA and the Crown Office.”

Ultimately, it is recognised that environmental criminal activities have a severe impact on the environment, economy and society. The Environmental Crime Task Force, was set up by the Scottish Government in July 2013 so that various bodies including COPFS, SEPA, Association of Chief Police Officer (ACPOS) and Society of Local Authority Chief Executives (SOLACE) could work together in the financial investigation of environmental crime. The POCA is another tool which is being used alongside this, and aims to recover the revenue and potentially personal assets of business persons which has originated out of environmental non-compliance.

Furthermore, businesses should bear in mind that there has been a considerable increase in the financial amount recovered under a POCA confiscation order for an environmental offence. The first confiscation order in Scotland, handed out to a scrap metal dealer in 2013 for illegally keeping and treading waste materials over a 14 year period was for £41,131. Again this was made following a report by SEPA of non-compliance to the Procurator Fiscal.

The message is loud and clear: businesses can no longer escape from environmental non-compliance and so it is essential to take steps to avoid such non-compliance and have procedures in place to protect your position in the event that this occurs.