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Regulating Coal Tip Safety in Wales: a Consultation Paper

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Regulating Coal Tip Safety in Wales A Consultation Paper Consultation Paper 255 Law Commission Consultation Paper 255 Regulating Coal Tip Safety in Wales A Consultation Paper 9 June 2021 © Crown copyright 2021 This publication is licensed under the terms of the Open Government Licence v3.0 except where otherwise stated. To view this licence, visit nationalarchives.gov.uk/doc/open-government-licence/version/3. Where we have identified any third party copyright information you will need to obtain permission from the copyright holders concerned. This publication is available at www.gov.uk/official-documents. i THE LAW COMMISSION – HOW WE CONSULT About the Law Commission: The Law Commission was set up by section 1 of the Law Commissions Act 1965 for the purpose of promoting the reform of the law. The Law Commissioners are: The Rt Hon Lord Justice Green, Chair, Professor Sarah Green, Professor Nicholas Hopkins, Professor Penney Lewis, and Nicholas Paines QC. The Chief Executive is Phillip Golding. Topic of this consultation: This consultation paper evaluates current legislation relating to coal tip safety in Wales and considers options for new Welsh legislation to ensure an integrated and future-proofed regulatory system which adopts a uniform approach to inspection, maintenance and record-keeping throughout the life cycle of all coal tips from creation to abandonment to remedial works. It makes a number of preliminary proposals and asks whether consultees agree. It also seeks views on more open questions. Geographical scope: This consultation applies to the law of England and Wales, as it applies in Wales. Duration of the consultation: We invite responses from 9 June 2021 to 10 September 2021. Responses to the consultation may be submitted using an online form at: https://www.lawcom.gov.uk/project/regulating-coal-safety-tips-in-wales/ . Where possible, it would be helpful if this form was used. Alternatively, comments may be sent: By email to [email protected] OR By post to The Regulating Coal Tip Safety in Wales team, Law Commission, 1st Floor, Tower, 52 Queen Anne’s Gate, London, SW1H 9AG. If you send your comments by post, it would be helpful if, whenever possible, you could also send them by email. Availability of materials: The consultation paper is available on our website at https://www.lawcom.gov.uk/project/regulating-coal-safety-tips-in-wales/ . We are committed to providing accessible publications. If you require this consultation paper to be made available in a different format please email [email protected] or call 020 3334 0200. ii After the consultation: We will analyse the responses to the consultation, which will inform our final recommendations for reform to Government, which we will publish in a report. Consultation Principles: The Law Commission follows the Consultation Principles set out by the Cabinet Office, which provide guidance on type and scale of consultation, duration, timing, accessibility and transparency. The Principles are available on the Cabinet Office website at: https://www.gov.uk/government/publications/consultation-principles-guidance. Information provided to the Law Commission: We aim to be transparent in our decision- making, and to explain the basis on which we have reached conclusions. We may publish or disclose information you provide in response to Law Commission papers, including personal information. For example, we may publish an extract of your response in Law Commission publications, or publish the response itself. We may also share responses with Government. Additionally, we may be required to disclose the information, such as in accordance with the Freedom of Information Act 2000. We will process your personal data in accordance with the UK General Data Protection Regulation. Consultation responses are most effective where we are able to report which consultees responded to us, and what they said. You may want your response to be anonymous, for example because it contains sensitive information about you or your family, or because you are worried about other people knowing what you have said to us. If you ask us to treat your response anonymously, we may refer to what you say in your response, but will not reveal that the information came from you. Alternatively, if you consider that it is necessary for all or some of the information that you provide to be treated as confidential and so neither published nor disclosed, please contact us before sending it. Please limit the confidential material to the minimum, clearly identify it and explain why you want it to be confidential. We cannot guarantee that confidentiality can be maintained in all circumstances and an automatic disclaimer generated by your IT system will not be regarded as binding on the Law Commission. We list who responded to our consultations in our reports. If your response is anonymous we will not include your name in the list unless you have given us permission to do so. If you provide a confidential response your name will appear in that list. Further information about how we handle data is available at: https://www.lawcom.gov.uk/document/handling-data/. Any queries about the contents of this Privacy Notice can be directed to: [email protected]. iii Contents Page GLOSSARY 1 CHAPTER 1: INTRODUCTION 5 A brief history of coal mining in Wales 7 This project 10 Next steps 11 Overview of this consultation paper 11 Impact assessment 13 Acknowledgements 13 Project team 13 CHAPTER 2: COAL TIP HAZARDS 14 Instability 14 The history of coal tip slides in South Wales 14 Causes of coal tip instability 19 Types of failure 22 Flooding 25 Pollution 26 Spontaneous combustion 30 Remediation and reclamation of tips 35 CHAPTER 3: MAPPING THE COAL TIPS OF WALES: ACTIVITY STATUS, OWNERSHIP AND RISK CATEGORIES 38 Active mines 38 Operational coal mines in Wales 39 Disused mines 40 Ownership of disused mine tips 41 Early mining 41 Changes in ownership of coal mines and tips as a result of nationalisation and privatisation of the coal industry 41 Tips owned by the Coal Authority 43 Local authority ownership and the Land Reclamation Programme 44 Tips managed by Natural Resources Wales 45 iv Unknown or fragmented ownership 47 Tips on common land or land with open access rights 47 Distribution of coal tips across local authorities and risk categories: provisional figures 48 Regulatory problems with recently closed mines 51 Inadequate financial provision 51 Shell companies 52 CHAPTER 4: THE ABERFAN DISASTER AND THE MINES AND QUARRIES (TIPS) ACT 1969 53 The Aberfan Disaster and the Disaster Tribunal 53 Parliamentary debates leading to the Mines and Quarries (Tips) Act 1969 55 The Mines and Quarries (Tips) Act 1969 59 The Mines and Quarries (Tips) Regulations 1971 60 The Part 2 regime for disused tips 62 The current regime for tips associated with active mines and quarries 68 Mines Regulations 2014 68 Quarries Regulations 1999 70 CHAPTER 5: OTHER LAW RELEVANT TO COAL TIP SAFETY 72 EU Directives 72 The Mining Waste Directive 72 The Waste Framework Directive 75 The Water Framework Directive 76 Environmental Permitting Regulations 76 The Environmental Damage (Prevention and Remediation) (Wales) Regulations 2009 78 River Basin Management Plans 79 UK legislation of relevance to coal tip safety 79 The Environmental Protection Act 1990 79 The Civil Contingencies Act 2004 82 Welsh legislation of relevance to coal tip safety 84 The Well-being of Future Generations (Wales) Act 2015 84 The Environment (Wales) Act 2016 84 Environmental principles and responsibilities following EU Exit 86 Welsh Government consultation 88 The Environment Bill 2019-2021 90 Implications of EU exit for the reform of coal tip safety law 90 Devolution 90 Implications of devolution for reform of the law relating to coal tip safety 91 CHAPTER 6: CIVIL AND CRIMINAL LIABILITY FOR COAL TIP HAZARDS AT COMMON LAW 92 v Common law civil liability 93 The rule in Rylands v Fletcher 93 Reasonable foreseeability of damage in private nuisance 95 Unreasonable use of land in private nuisance 95 Statutory civil liability 97 Common law criminal liability 98 CHAPTER 7: PROBLEMS WITH THE 1969 ACT 99 Problems 99 Loss of specialist skill and experience 99 Local authority resources 99 Cumbersome procedures 100 Lack of power to require or perform maintenance 102 Issues with landowners 102 Unauthorised interferences 103 Clash of regimes 103 Declassification of tips 106 Impact of a tip register 106 Solutions 107 An oversight body 107 Regional approach 108 Inspection 109 Maintenance 109 Restrictions on landowners modifying coal tips 109 Panel of engineers 109 Ownership 109 Alternative uses of the land 110 Long-term view 110 Clash of regimes 110 The need for a new regulatory framework 111 CHAPTER 8: THE INITIAL WORK COMMISSIONED BY THE WELSH GOVERNMENT 112 Initial safety work commissioned by the Welsh Government 112 Data-gathering 112 Walk over inspections 114 Standardised mapping 114 Interim approach to organising tip data 115 Views of the Coal Authority on tip management 116 Inspections 116 Maintenance and remediation options 117 Tip management plan 118 Views on longer-term tip management 119 Longer-term work 119 Next steps 120 vi CHAPTER 9: OTHER REGULATORY MODELS 121 General 121 The Reservoirs Act 1975 122 Detail of the regulatory framework 123 Comparisons between reservoirs and coal tips 128 Evaluation of the reservoirs regime 129 The Quarries Regulations 1999 and Mines Regulations 2014 131 Mines Regulations 2014 132 Quarries Regulations 1999 133 Appraisal 133
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