DEFRA seeks comments on F-gas enforcement

UK: DEFRA is seeking comments on its plans to issue enforcement notices rather than take court action against those breaching the new F-gas regulations.

In a new consultation document, Implementing the new EU Fluorinated Greenhouse Gases Regulation, DEFRA is inviting industry comment on the UK’s implementation plans for the new legislation which comes into force on January 1. It is also seeking views on the financial impact of the new legislation on UK businesses which it has put at between £10,000 and £60,000 per year.

DEFRA says that it has made enforcement notices the focus of actions against those breaching the legislation in order to limit the number of actions which directly result in criminal liability.

In effect, this means that a breach of a requirement under the legislation, would not, in most cases, itself be a criminal offence. Instead, the enforcing authority would be able to issue an enforcement notice. A breach of a requirement under an enforcement notice would then be a criminal offence. A failure to comply with an information notice – a requirement to provide specified information to the enforcing authority –  would also be grounds for serving an enforcement notice.

The proposed regulations no longer include a separate category of prohibition notices because enforcement notices are considered sufficient for the purpose of enforcing the EU regulation and Commission regulations.

The powers of entry given to enforcement authorities are also more limited than in the current 2009 regulation which the new powers will replace. Authorised persons will now only be able to enter premises between the hours of 8am and 6pm on working days and be limited to bringing up to four other persons with them. A warrant obtained from a justice of the peace (or stipendiary magistrate or sheriff in Scotland) will also be needed before the powers of entry can be used.

Direct criminal liability will still apply to a few breaches of the EU requirements, although the options of using an enforcement notice in those cases is still available.

These breaches include:

• Intentionally releasing F-gases to atmosphere

• Placing on the market prohibited products and equipment (as listed in Annex III of the F-gas regulation)

• From January 2017, placing equipment charged with HFCs on the market (unless it is within quota limits)

• Manufacturers or importers failing to conform with requirements for documenting pre-charged equipment when placing on the market

• From January 2018, importers failing to ensure that accuracy of documentation is verified by an independent auditor by March 31 each year

• Manufacturers and importers of refrigeration, air conditioning and heat pump equipment charged with HFCs failing to keep the documentation and declaration of conformity for at least five years

• Producers or importers exceeding their allocated quota

• Failing to comply with a requirement to dispose, render harmless or remove a product or equipment containing, or whose functioning relies on F-gases

• Failing to comply with an enforcement notice

• Obstructing those carrying out enforcement

• Failing to provide information or assistance without reasonable cause to those carrying out enforcement

• Providing false or misleading information

• Failing to produce a document or record to an enforcement authority when required to do so.

The consultation is open now and runs to January 20. It can be accessed here.