Annual Regulation Report 2018

Our regulatory approach

We have set out our regulatory approach as a set of regulatory principles which guide the way we work. By following our eight principles we will meet our role as a regulator as well as complying with the regulators' code and the principles of good regulation.

Our regulatory role is established through a mix of European Directives, UK legislation and policy which specify the types of activities we regulate and require us to undertake certain duties such as issuing permits, checking compliance and monitoring. In line with the principles of the Sustainable Management of Natural Resources (SMNR), we adopt a broad definition of regulation that embraces many types of interventions including formal regulation, and informal regulation e.g. voluntary initiatives, economic and market-based mechanisms, through to information and communications-based approaches. The Environment (Wales) Act 2016 requires us to work in a way that better understands and values the natural environment, is more joined-up and more pro-active. We need to continue delivering our regulatory responsibilities which are wide reaching and complex whilst balancing new priorities and encouraging novel or innovative approaches.

We help shape and deliver regulatory approaches or interventions across Wales to promote responsible behaviour and where necessary tackle illegal activity. Regulation is about the law, but it also includes much wider levels of intervention including economic and voluntary tools or the provision of advice and guidance.

By publishing this annual report, we are meeting our requirements under the regulators' code and our own regulatory principles.

Species

The Species Permitting Team determine applications for a wide range of activities and species under five Acts and Regulations.

Act/Regulations	Number of licences issued
Conservation of Habitats and Species Regulations 2017	429
Wildlife and Countryside Act 1981	853
Badgers Act 1992	16
Deer Act 1991	0
Seals Act 1970	0

 

• Licence amendments: 390
• Applications rejected at application stage: 208
• Licences refused: 6
• Applications withdrawn: 17
• Number of offences reported to the police: 15

Forestry

The Forestry Permitting team deal with permits for felling and planting activities (external customers). We also approve Forest Resource Plans and administer the Countryside Rights of Way applications (internal customers).

Act/Regulations	No of licences issued	Applications refused	Applications withdrawn
The Forestry Act 1967	466	0	4
The Environmental Impact Assessment (Forestry) (England and Wales) Regulations 1999	97	0	0

Permitted waste facilities in Wales

There are 792 permitted waste facilities in Wales. Of these 628 were operational in 2018. Those that are classified as non-operational may be facilities where no operational waste activities have commenced, or the facility has closed. Of the operational facilities 558 have waste operations permits and 70 have waste installation permits.

Sector/Sub-sector	Total operational permits
	2018	2017	2016
Non–hazardous waste (storage and treatment)	269	263	249
Secondary metals	127	120	118
Landfill (including deposit for recovery)	42	58	41
Hazardous waste treatment (storage and treatment)	70	68	64
Inert waste (storage and treatment)	49	40	35
Biowaste use	35	35	30
Biowaste treatment	36	34	33
Totals	269	618	570

Waste operator performance

As a total of operational sites, poor performance is relatively low 5% of operational sites.

The number of Band E, C and A sites in 2018 has increased since 2017. This has coincided with a decrease in Band D and B sites, whilst the number of band F sites has remained the same.

Overall performance within the waste sector in Wales improved between 2011 and 2014, slipped back in 2015, began to improve again in 2016 and 2017 and then deteriorated again in 2018.

Compliance and enforcement of poor performance

All performance band D, E and F sites must have a compliance plan in place that details time limited actions agreed with the regulator to ensure that sites work towards improving their performance. In Wales all the D, E and F sites identified in 2018 had an action plan in place.

Most of the D, E and F sites have also been subject to an enforcement action or a remedial response such as an enforcement or suspension notice. A summary of the responses are as follows:

• 3 improvement plans in place
• 1 permit revoked
• 1 permit transferred to new operator & site cleared of waste
• 1 operator has ceased operating and site being cleared of waste by landlord
• 2 enforcement notices served
• 3 prosecutions
• 1 landfill permit suspended
• 1 formal caution
• 3 suspension notices
• 16 compliance notices
• 1 company in liquidation
• 4 compliance plan

High risk fire sites' progress

Fires at sites that manage waste continue to pose a risk to the environment and communities of Wales. Over recent years there have unfortunately been several large scales fires that have required significant resource from operational teams and the Fire and Rescue Service.

To try and reduce the likelihood of these fires occurring and if they do occur, reduce the impact that they may have, we have updated our Fire Prevention and Mitigation Plan (FPMP) Guidance, we have completed a programme to vary permits on the High-Risk Fire List and all relevant standard permit rule sets have been updated to include a FPMP condition.

Currently, 86 out of the 126 permitted sites that require a FPMP have one in place. We are working with the remaining operators to achieve full compliance.

Producer responsibility monitoring and compliance

In 2018 our focus has been on auditing reprocessors and exporters, with a focus on plastic exports.

Producers

Number	Planned Audits	Completed Audits
Circa 400	10	10

Reprocessors and exporters

Number	Planned Audits	Completed Audits
25	25	25
20	11	11
2	2	2

Case studies

1. We have established and developed very positive relationships with our regulatory partners including the HSE, FRS and HMRC. This has resulted in several successes at a number of our permitted sites. Our work was instrumental in HMRC securing a conviction against a waste operator for significant tax evasion. Several operators have had to implement significant improvements as a result of a joint approach with HSE and our partnership working with the FRS was fundamental to our success in closing down a high-risk wood recycling site.
   
   
2. 2018 has seen the clearance of several sites containing significant quantities of illegally stored waste. One site had been blighted by a significant volume of baled residual waste following the liquidation of an operator. We worked closely with the liquidator and secured full site clearance which allowed the site to become productive once again.
   
   
3. A skip company ceased trading after a suspension notice was served for non-payment of permit subsistence fees. We worked with a new operator who transferred the permit, and the landlord who both completely cleared the site of waste.
   
   
4. An operator abandoned their site following an NRW led variation to add the FPMP condition. The operator initially appealed the variation but then subsequently withdrew the appeal. Shortly after the operator abandoned the site leaving behind14,000 tonnes of waste. We worked closely with the landlord and a new waste operator to clear the site and we have taken enforcement action against the operator

Industry, radioactive substances and intensive farming

The table below shows the numbers of sites in each compliance band for industry installations, radioactive substances permits and intensive farms. There has been a further overall increase in site numbers in 2018. Most of the new sites are intensive poultry farms.

Site type	A	B	C	D	E	F	Total
Industry	88	35	19	6	7	0	155
RSR	127	8	0	0	0	0	135
IF	75	19	9	0	1	0	104
Total	287	63	28	6	8	0	394

We regulate 155 industrial sites and a further 104 intensive farms under Schedule 1, Part A(1) of the Environmental Permitting Regulations. We also regulate 94 sites holding non-nuclear radioactive sources, and we are joint Competent Authority with the Health and Safety Executive for 54 sites falling into the Control of Major Accident Hazard (COMAH) Regulations.

There are 135 permits for non-nuclear radioactive substances at 94 sites across Wales.

The number of permitted intensive farms rose to 104 in 2018, with all but one being intensive poultry units. There were 77 intensive farms in 2015 so this is a sector that has expanded rapidly in recent years.

There are 143 sites holding Environmental Permits for industrial Schedule 1, Part A(1) activities, excluding intensive farming, waste treatment and landfill activities. There are a further 12 permits held by operators of Directly Associated Activities on installations holding Schedule 1 permits.

Waste installation compliance

There are 49 waste treatment installations and 25 landfills regulated by industry regulation teams. The number of poor performing sites increased from 4 to 6 during 2018, including the one band F site.

Case studies

1. A chicken abattoir had ongoing difficulties with identifying the source of contamination in its surface water drains. The problems are now resolved, and the Environmental Management System has been significantly improved following an audit in Summer 2018. A Formal Caution was accepted by the company in late 2018 for non-compliance with an enforcement notice.
   
   
2. During an audit at a milk processing site, we identified that the Liquified Natural Gas activity at the site should have been included in the permit. There were also some serious deficiencies in the site’s Environmental Management System. The operator has since applied for and been issued with a permit variation for the LNG activity.
   
   
3. An audit at a tissue manufacturer identified serious deficiencies in the storage of hazardous liquids. The operator took immediate action to address the problems and return into compliance.
   
   
4. Non-compliance at an abattoir in included the release of F-gas from the refrigeration system and released oil to the surface water. The operator has been advised to make improvements to the management system.
   
   
5. There have been ongoing problems with noise from this abattoir in for several years which have been difficult to identify and resolve. Improvements were made during 2018 including cladding and relocation of fixed equipment. Further noise monitoring confirmed that these measures had been effective, and the site is now compliant.

Agricultural regulation

Farm inspections

Act/Regulations	Inspections	Breaches / Non-Compliance
EPR sheep dip inspections	93	11
Nitrate Vulnerable Zones	40	6
Control of pollution, silage, slurry and agricultural fuel oil	27	22
Water Framework Directive farm visits/pollution incident follow up	28
Cross compliance inspections	21	5

Farm assessments

Act/Regulations	Applications / Assessments
Environment Permitting Regulations Mobile plant permit deployments	120
Sludge Use in Agriculture Regulations risk assessments	150
Dairy Project (SSAFO)	43

Enforcement

Civil sanctions

In Wales the Environmental Civil Sanctions (Wales) Order 2010 and The Environmental Civil Sanctions (Miscellaneous Amendments) (Wales) Regulations 2010 came into force on 15 July 2010.

The Order permits Natural Resources Wales as a regulator to impose civil sanctions in relation to offences specified in Schedule 5 of the Order. It sets out the procedure relating to the sanctions such as the provisions for non-compliance, administration costs, appeals and a requirement to provide guidance.

The Regulations amend a number of other Statutory Instruments which permits the regulator to impose specified civil sanctions in relation to breaches of those regulations. Civil sanctions are not meant as a substitute for the criminal law but are intended to provide a more proportionate, more effective approach for operators who are generally compliant, with criminal prosecution remaining available for the most serious offences. Civil Sanctions are available for certain sections of the following legislation:

• Salmon and Freshwater Fisheries Act 1975
• Salmon Act 1986
• Environmental Protection Act 1990
• Water Resources Act 1991
• Water Industry Act 1991
• Land Drainage Act 1991
• Environment Act 1995
• Water Act 2003
• Sludge (Use In Agriculture) Regulations 1989
• Environmental Protection (Disposal of Polychlorinated Biphenyls and other Dangerous Substances) (England and Wales) Regulations 2000
• Hazardous Waste (Wales) Regulations 2005
• Producer Responsibility Obligations (Packaging Waste) Regulations 2007

As a result of relevant environmental offences being committed, we accepted 4 Enforcement Undertakings, 1 Variable Monetary Penalty and Enforcement Cost Recovery Note, and 2 Fixed Monetary Penalties.

Enforcement undertakings 2018

Type of offender	Offence	Date accepted or rejected (date from returned offer of) - information/updates	Amount of costs to NRW	Charity donation	Recipient
Company	Environmental Permitting Regulations 2010 Reg 12(1)(a)	22/08/2018	£8587.00	150,000	Afonydd Cymru
Quality	Salmon and Freshwater Fisheries Act 1975 Section 4		£4683.26	15,000	Llangattock Dewatering Incident Improvement Plan
Company	Salmon and Freshwater Fisheries Act 1975 Section 4	Originally refused as the offer only referred to one incident	£7351.39	45,000	South East Rivers Trust, Afonydd Cymru & 3G's Community Development Trust
Company	Salmon and Freshwater Fisheries Act 1975 Section 4	The above offer was only for the above incident. A further offer was made for both incidents.	£7351.40	45,000	South East Rivers Trust, Afonydd Cymru & 3G's Community Development Trust

Civil sanctions case study: variable monetary penalty (VMP)

Section 24(1)(A) Water Resources Act 1991

Abstraction without licence or drought order/permit

In April 2017 NRW became aware that a company called Knolton Farmhouse Cheese Ltd had re applied for a licence to abstract groundwater at their production site near Overton. The company had previously held a licence to abstract groundwater, their most recent licence expired in September 2017. Our investigations showed that the company had continued to almost continually abstract water since the licence expired but had remained within the expired licence limits.

This is the second time the company has allowed the licence to lapse in two years. The expiry date is clearly shown on the front of the licence and was explained at the time of issue, the companies excuse was that there had been staff changes in the company and they had not intended to allow their licence to expire.

There was no evidence of harm however should another company have applied for a licence in this groundwater area after the Knolton licence lapsing, they may have been granted a new licence, as the water previously allocated to Knolton would no longer have been allocated to them so it may have appeared that water was available in this area, which may have caused an over abstraction issue.

The company admitted the offence and assisted NRW with its investigation, the company also offered to pay back £ £782.80 that they had avoided paying by not having a licence.

The company were issued with a VMP £2331.60 and a cost recovery notice for £1493.13 which has been paid in full.

Civil sanctions case study: enforcement undertaking

Regulation 12(1)a & 38(1)b Environmental Permitting (England and Wales) Regulations 2010

Knowingly caused or permitted the operation of a regulated facility otherwise than to the extent authorised by an environmental permit.

Section 41 (1) Salmon and Freshwater Fisheries Act (SAFFA) 1975

Discharging matter or effluent that is poisonous or injurious to fish, spawn, spawning areas or food of fish.

In October 2016 a pollution incident occurred due to kerosene leaking from an oil pipeline under the A48 near Nantycaws. Mainline Pipeline Ltd were at the time constructing a new multi fuel pipeline to transport fuel oil from Pembroke Dock to a site in Northern England NRW led a multi-agency investigation that included the HSE and found that the pipeline had been fractured during the construction /repair works. As a result of these fractures approximately 140,000 litres of kerosene had been released into the surrounding environment.

Our investigation found that oil was seen on a tributary of the Nantycaws, the Nantycaws and the Nant Pibwr (a total distance of about 2 km.) There was a strong odour of kerosene around the river.

Over 300 fish of various species (salmonids, eels and other species) were killed, although the estimate of fish loss based on the electrofishing survey says that over 3000 were lost. Impact on aquatic invertebrates was significant. Dead macroinvertebrates were found 2.6km below the Nantycaws stream and parts of the Nant Pibwr suffered a 100% loss of invertebrates. Invertebrates are the food of some fish species including salmonids.

There was no intent by Mainline Pipelines Ltd who own the pipeline to allow the kerosene to leak out of the pipeline as the oil is the product they sell to make money. There is no evidence to suggest the pollution incident was caused by any deliberate act. There was also a breach of the Pipeline Safety Regulations 1996 which the HSE are the competent authority.

There was no evidence to suggest that Mainline Pipelines Ltd would have benefited financially from what has happened. On the contrary, huge expense has been incurred due to lost product (kerosene), lost revenue due to the pipeline not operating, extensive oil clean-up costs and additional construction works (laying a new section of pipe).

The Company donated £40,000 to the Llangunnor Community Council to be spent within the community. This was as a gesture of good will in recognition of the inconvenience suffered by local residents.

The Company donated £150,000 to Afonydd Cymru (AC). The Chief Executive of the organisation, Dr Stephen Marsh-Smith, has stated that Afonydd Cymru would use the donation to expand and advance an existing project that seeks to reduce the level of Diffuse Pollution in the Tywi catchment (Carmarthen) using the existing partnership between AC, the West Wales Rivers Trust, the Wye and Usk Foundation, Welsh Water (DCWW) and NRW.

NRW received a payment of £75,000 to cover our costs incurred in responding to this pollution incident.

Single Justice Procedure (Fisheries)

Rod and Line Offences	2018
Number of Prosecutions	26
Total Fines	£3756
Average Fine	£144
Total Costs awarded	£2750
Average Costs	£106
Compensation	£794

Regulatory contraventions

Regulatory contravention	2018
Environmental Permitting Regulations 2010 (Waste offences)	39
Environmental Permitting Regulations 2016 (Waste offences)	180
Environmental Permitting Regulations 2016 (Water offences)	69
Environmental Protection Act 1990 (Waste offences)	67
Salmon and Fresh Water Fisheries Act 1975	38
Forestry Act 1967	15
Plant Health (Forestry) Order 2005	2
Environmental Permitting Regulations 2010 (Water offences)	12
Water Resources Act 1991	19
Wildlife and Countryside Act 1981	31
Sea Fisheries (Shellfish)1968	6
The Dee Estuary Cockle Fishery Order 2008	2
Environment Act 1995 (Waste)	6
Hazardous Waste Regulations 2005	4
Silage, Slurry and Agricultural Fuel Oil Act 2010	2
Reservoirs Act 1975	2
Environmental Damage (Prevention and Remediation) (Wales) Regulations 2009	1
Transfrontier Shipment of Waste Regulations 2007	2
The Control of Pollution (amendment) Act 1989	2
Control Of Pollution (Silage, Slurry Afo) Reg 1991	1
No Charge Identified	132
Total	632

Enforcement outcomes

The information provided below shows our enforcement outcomes from 1 January 2018 until 31 December 2018. A few cases will have commenced before 2018 but were completed within the year, there will also be cases that were commenced during 2018 that are either still under investigation or in the court system, and these will be recorded in our 2019 report.

In addition to the information below we issued a total of 46 site warnings whilst responding to incidents.

No further action (NFA)	Number	Advice and guidance given (A&G)	Number
Total number of cases	4	Total number of cases	46
Total Number of offenders	4	Total number of offenders	52
Total number of NFA	4	Total number of A&G	53

 

Fixed notice	Number	Greenhouse gas emissions	Number
Total number of cases	18
Total number of offenders	25
Total number of notices sent	36	Number of charges	7

 

Warnings	Number	Cautions	Number
Total number of cases	69	Total number of cases	48
Total number of offenders	84	Total number of offenders	67
Total number of warnings	86	Total number of charges cautioned	71

Prosecutions 2018

Outcome	Guilty	In progress	No evidence offered	Proved in absence	Grand total
Number of charges	44, including 2 suspended custodial sentences	2	5	13	73
Fines	£247,243.66			£2,290.00	£249,533.66
Costs awarded	£89,346.68	£2,825.00	£17,858.38	£1,652.00	£131,682.06
Victim surcharge	£1,755.00	£170.00	£340.00	£390.00	£2,655.00

Case study: burning of waste on land

Following reports of burning of waste at a farm our officers attended the site and saw what they described as a large fire burning which was unattended. The fire contained large thick broken wooden planks and general waste including plastic and metal, the fire was alight in an area that appeared to have been frequently used for burning. The officers described the area used for burning a sheltered large soil bund, which was heavily contaminated with general waste and metals. Also, on site our officers saw a pile of metal, which had been burnt, three medium skip sized loads of demolition waste, tree brash and 7 gas canisters.

A few days later our officers re attended the site to check if any more burning had taken place and found another fire burning in the same location, this time they saw a man using a digger to push waste wood which consisted of a mixture of laminate flooring, wooden frames, doors and plywood onto a fire.

Our investigations showed that the farm was a Ltd company had a tenancy to farm on the land where the burning was taking place, in interview the director of the company admitted that the person seen putting waste was employed by the company and that the company had allowed gardening companies to deposit waste on their land. The company also admitted they had previously received a warning letter for burning waste on their land in 2014.

The burning of business or controlled waste on land is an offence, the regulations are there to protect human health from the pollution of air, in this case harmful chemicals may be released from the mixed waste when it was burnt, which could have contributed to a decline in localised air quality. In this incident the waste has been illegally and unnecessarily disposed of via burning when other legal disposal options were available.

The offenders in this case have shown a complete disregard for the law which is in place to protect human health and the environment, there are various authorised methods of waste disposal yet the company chose to burn the waste despite being fully aware it was against the law.

The defendants pleaded guilty in magistrates court and were fined a total of £7270.

Case study: producer responsibility

The company which imports and manufactures flat screen TV’s was identified as a potential 'free rider' as part of NRW's routine producer responsibility enforcement work. The company’s activities make them obligated as producers of electrical and electronic equipment (EEE). Because the new TV's have a remote control included that contain batteries, means they are also obligated as producers of batteries. The TV's are imported and supplied in boxes with associated other packaging items which also means that the company was obligated as a producer of packaging.

The company were contacted in March 2016 and following advice our advice registered as a producer of EEE and batteries in April 2016 and as a packaging producer in May 2016. The company had started its operations in August 2014 but did not register until 2016 after being contacted by NRW. This means that the company should have been registered as a producer of EEE and batteries in 2014 and 2015 as well as registering as a producer of packaging in 2015. There was an awareness by staff in the company that they should have been registered for their producer responsibility obligations.

Producer responsibility offences are technical offences that do not cause direct environmental harm. The purpose of producer responsibility is to make companies responsible for the goods they produce or sell when they become waste, reduce the amount of these wastes going to landfill and to contribute to the financial costs of the recycling and recovery. By not registering in 2014 and 2015 the company have not contributed to this. By failing to register as a producer of WEEE, batteries and packaging the company failed to meet its responsibilities under the WEEE, batteries and packaging Regulations. The company failed to contribute towards the recycling of goods when they become waste.

Based on the registration and compliance costs the company stated for 2016 the company saved approximately £321,000 costs for EEEE, £3,000 for batteries and £650 for packaging. In total this is an approximate saving of approximately £325,000. In 2018 the company was found guilty in magistrates court and was fined a total of £146,881 plus NRW costs.

Orders imposed by the Court ancillary to prosecution

The Code for Crown Prosecutors requires us to apply for compensation and ancillary orders, such as anti-social behaviour orders and confiscation orders, in all appropriate cases. Listed below are the ancillary orders that a court may make following a conviction:

Disqualification of directors

No orders have been made by the court

Confiscation of assets - Proceeds of Crime Act 2002

See table below

Anti-social behaviour orders

No orders have been made by the court

Forfeiture of equipment used to commit the offence

No orders have been made by the court

Disqualification from driving

Zero

Compensation other than PoCA

Zero

Vehicle seizure

None

Remediation – under the Environmental Permitting Regulations

Zero

Unpaid work

One

Community orders

Zero

Curfew

One

Restoration Order under Wildlife and Countryside Act 1982

Zero

Proceeds of Crime (Asset Recovery Incentivisation Scheme-ARIS)

Tax Year 17-18

POCA 2017-2018			*Variation Made
Date of Order	Defendant	Benefit	Amount of Order	Amount Paid	Amount Outstanding
27/02/2017	1	£950,000.00	£1.00	£0.00	£0.00
24/05/2017	2	£154,229.93	£81,287.73	£81,745.37	£0.00
24/05/2017	3	£907,321.01	£208,000.00	£0	£208,000.00
24/05/2017	4	£113,415.12	£544.81	£544.41	£0.40
06/06/2017	5	£433,500.00	£226,326.29 *£214,133.84	£214,133.84	£0.00
06/07/2017	6	£950,000.00	£339,023.53	£173,255.52	£165,769.01
16/08/2017	7	£694,481.77	£694,481.77 *689,298.75	£5,183.07	£0.00
17/08/2017	8	£694,481.77	£433,500.00 *£306.096.81	£306.096.81	£0.00
11/01/2018	9	£319,136.43	£319,136.43	£19,200.00	£299,936.43
09/03/2018	10	£36,939.61	£10,179.06	£10,179.06	£0.00