BCL partner Richard Reichman has been quoted in an article from ENDS Report titled ‘Reg 61: The information request pitfalls to avoid’
Here’s an extract from the article featuring Richard’s quotes:
The Environment Agency (EA) has the power to request information from businesses with environmental permits. The notice in question is a Regulation 61, or Reg 61, issued under the Environmental Permitting Regulations (EPR) 2016.
So, what is Reg 61 all about and what kind of information does the EA ask for?
First things first: if you are sent a Reg 61 notice, it does not mean you have done anything wrong. “It’s an investigative step, not an enforcement action,” explains Richard Reichman, partner at BCL Solicitors. “It’s a power the EA has to require the provision of information.”
Reg 61 actually gives the EA the power to “require that person to provide such information in such form and within such period as is specified in the notice”. So, the information is not always on a document that’s lying about the office, says Reichman. There could be questions to respond to, for instance, or a spreadsheet of information using specific column headings. However, the extent of the power is “debatable”, he adds.
It’s in this respect that Reg 61 differs from section 108(k) of the Environment Act, which relates to the production of records. “There are arguments regarding the extent of these powers and the admissibility of evidence obtained,” Reichman explains. “The Environment Act is arguably not as wide as EPR Reg 61, only giving the EA the power to require the production of existing records.” And it’s also worth noting that, according to Willetts, section 108 of the Act relates to site visits, so requests for information must be made at that time. She has had local authorities using section 108 to ask for information months after a site visit. “We challenged that and were right,” she says. “Those kinds of requests are what Reg 61 is for.”
Reichman suggests the rationale behind the offence is similar to that of perverting the course of justice or obstruction. “It’s an offence relating to hindering the regulator’s investigation, although no intention is required,” he says.
At the light touch end of enforcement is a warning. However, a formal caution or a prosecution are also possible. A prosecution, which some lawyers suggest is unlikely, would be under Reg 38(4) of the EPR. ENDS could find only one of these on the EA’s prosecutions register, from 2017. “A regulated company tends to respond to a Reg 61,” says Reichman.
This article was originally published by ENDS Report on 24/04/2020. You can read the full article on their site.