THE Law Commission of England and Wales has today, Wednesday (Jun 9) launched a consultation on a proposed new coal tip safety regime in Wales that would replace outdated laws and improve how a range of risks with coal tips are managed. The changes proposed by the new regime include:
A proactive and holistic approach to coal tip safety: this would allow earlier intervention to prevent tip problems developing, help to tackle issues beyond tip instability and protect against future implications of climate change
A supervisory authority with responsibility for the safety of all disused coal tips. Proposed functions for the authority include :
Compiling and maintaining a register of all disused tips in Wales
Arranging for inspections of tips and the creation of tip management plans
As required, designating tips as high risk (in relation to tip slides and/or other risks) which would bring into play an enhanced safety regime with increased involvement of the supervisory authority to minimize dangerous hazards occurring.
Nicholas Paines QC, Public Law Commissioner at the Law Commission of England and Wales, said:
“The laws governing coal tips in Wales date from an earlier age and no longer offer adequate tools to manage Wales’s legacy of coal tips. Only a small minority of tips have the potential to be a danger but new legislation is needed to enable all tips to be effectively monitored, preventive work to be done to avert danger and remedial work to be carried out to reduce any existing risks.
“We think our proposed reforms would significantly improve the management of coal tips and especially the highest-risk tips. We are keen to receive feedback on our proposals to help us to ensure that we achieve the best design for coal tip safety management.”
Julie James, the Welsh Government’s new Minister for Climate Change said:
“The challenge presented by coal tips in Wales is a clear illustration of how responding to the climate emergency is fundamentally a question of social justice. To protect the wellbeing of communities who live in the presence of coal tips, the legislation needs to be improved to reflect advances in scientific knowledge, the changes in our economy and society, and the implications of our changing climate.
“The extensive work completed by the Law Commission to bring forward this consultation has been a part of wider collaborative efforts between government and communities. Changes to the law will be one important part of creating the basis for us to continue to work together to take action to heal these industrial scars and create a stronger, greener and fairer Wales.”
The current situation
A coal tip is a pile built of waste material removed from the ground during coal mining. Across Wales, there are currently a tiny number of tips associated with operational coal mines, but more than 2,000 disused coal tips. Without careful management, these tips can present a number of risks. These include risks of:
Instability and coal tip slides:. Slides can be caused by heavy rainfall and/or poor drainage. Increased rainfall caused by climate change has increased the risk of tip slides taking place.
Flooding: tips can cause or contribute to flooding.
Pollution: drainage from tips can release pollutants into the environment which can cause a range of damage to local habitats and wildlife.
Spontaneous combustion: coal tips can spontaneously combust and remain alight for many years. This can cause subsidence and form hidden cavities prone to collapse, and treating burning tips is hazardous.
Issues with the current law
The Mines and Quarries (Tips) Act 1969 was enacted following an investigation into the Aberfan disaster of 1966. At that time there was an active coal industry and disused tips were not thought to be a significant problem. Almost all tips in Wales are now disused, and increased rainfall intensity as a result of climate change brings an increased risk of tip instability, as illustrated by tip slides which occurred in Wales in February 2020 following Storms Ciara and Dennis. The 1969 legislation is now outdated and no longer fit for purpose. It is not effective at managing the safety of disused coal tips in a holistic way. Reform is needed to reduce the risk of dangerous incidents – particularly tip slides – occurring.
Issues with the legislation include:
The powers created by the Act are fragmented across local authorities, leading to inconsistent safety standards and risk classifications.
There is no mechanism to prioritise the highest risk coal tips to ensure they are managed as a matter of urgency.
There is no general duty to ensure the safety of coal tips and local authorities have no power to intervene until there are concerns that a tip is unstable.
There is no power to undertake preventive maintenance before a tip becomes a danger.
Proposals in detail
To improve how coal tips are regulated and maintained, and to minimize risk of dangerous incidents, the Law Commission is proposing the creation of a new regulatory framework. This would promote consistency in the management of coal tips across the country and avert danger by introducing a proactive rather than reactive approach.
The consultation seeks views on the proposed framework including the introduction of:
A single supervisory authority with a duty to supervise the management of all disused tips, which is able to monitor all disused tips and ensure compliance with regulatory requirements to a consistent standard across Wales.
A coal tips register, compiled and maintained by the supervisory authority which would include a wide range of information including potential risks associated with each disused tip.
Inspections of each tip for the purpose of a risk assessment and designing a tip management plan. The inspection could potentially cover all potential risks including the risk of tip slides but also flooding, pollution and any other risks.
For those coal tips designated as high risk, an enhanced safety regime with increased involvement of the supervisory authority to manage the tip and reduce the chance of significant dangerous incidents occurring.
The Law Commission will be consulting on these proposals until 10 September 2021. Following the consultation period, we will analyse the responses and develop final recommendations for the Welsh Government. We are aiming to publish our final report in early 2022.