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The key Scottish points on abandoned mines are contained in Schedule 13. Amendment No. 249, which amends Schedule 13, provides that the persons responsible, under the Control of Pollution Act 1974, for causing or knowingly permitting mine water from entering controlled waters are the owners or occupiers of the mine in question and not the surface owner.
The definition "knowingly permitting", which is accepted by the courts, is wide and may well place liability on a farmer or other surface owner of ground where polluted mine water emerges from underground shafts on to the surface.
It is hoped that the Minister will confirm that surface owners should not be held liable in that situation and that the appropriate persons to be held responsible are the owners and occupiers of the mine in question as provided for in the amendment.
On the subject of abandoned mines, it will be helpful if the Minister will clarify whether polluted water presently in a disused mineshaft may result in the land or mine falling within the definition of contaminated land under Clause 54.
The Earl of Lytton: My Lords, I support the amendments. There is one thing worse than contamination for spreading around its ill effects and that is risk. There is one thing worse than risk in general and that is unquantifiable serious risk and, following on from that, people's reaction and their total aversion to it.
I said earlier in connection with the Bill that it is no good looking for scapegoats and, in particular, for innocent scapegoats. As usual, the noble Lord, Lord Mason of Barnsley, spoke with enormous authority about coalfield dereliction and the problems associated with that. I know a little of the problems caused in some areas of the Nottinghamshire and Leicestershire coalfields, from where some of my forebears come.
I accept that mines have been closed and I make no particular point on that. But does the economic blight caused by those closures have to be added to by the blight of uncertainty relating to how liability for mine water is to be apportioned?
I said earlier that there are certain aspects of old residual contamination that rightly and properly fall into the public domain. I also said that it is no good for the Government and the Minister to ask, "Why should the taxpayer pay?" It is a matter of fine judgment as to what is appropriate for society to bear generally via the taxpayer also known as the Treasuryand what it is proper for the individual to bear. One of the failings of the Bill as it stands is that it makes no proper distinction between the two. I support the amendments because the Government will now have to consider whether to leave things as they are or face the music of the human and social disarray and economic dereliction which will otherwise be visited on areas which already have problems enough at present.
Viscount Ullswater: My Lords, Clause 57 removes the statutory protections for discharges permitted to flow from mines abandoned after the end of 1999. Section 30J(4) of the Control of Pollution Act 1974 added by paragraph 2 of Schedule 13 and the amendments in paragraph 25(16) of Schedule 18 have the same effect in Scotland. In proposing those changes, the Government have been concerned to remove an anomaly which resulted in discharges from abandoned mines being dealt with differently from other discharges.
In the Bill we are seeking to enhance the agencies' abilities to deal with water pollution from abandoned mines, and to remove anomalies in the existing legislation. There is at present a defence against prosecution and an exemption from recovery of costs by the National Rivers Authority in cases where polluting water is permitted to flow from an abandoned mine. We consider it right that those statutory protections should be removed, but have, for the reasons which I gave earlier, decided that they should only be removed in the case of mines abandoned after the end of 1999.
The effect of Amendments Nos. 168 and 172 tabled in the name of the noble Baroness, Lady Hilton, would mean, for the Coal Authority alone, that the removal of the statutory protection applied to all coal mines regardless of when they were abandoned. That would simply create a new anomaly. Surely it cannot be right for one discharger, whether it be the Coal Authority or anyone else, to have far heavier responsibilities than any other.
The same point applies in the case of Amendment No. 177 which places on the Coal Authority responsibility for the prevention, control and treatment of water pollution from abandoned coal mines. That responsibility would apply to mines abandoned before 1st January 1996. It is not clear whether the amendment envisages that the statutory protections for such mines would continue to apply. It would in any event appear to envisage that the Coal Authority is responsible for water pollution from any abandoned coal mine. Under the water resources legislation, an offence is committed where a person causes or knowingly permits water pollution to occur. If pollution from an abandoned coal mine occurred but the Coal Authority had neither caused nor knowingly permitted the discharge, it would clearly be wrong for the authority to bear the responsibility.
My noble friend the Chief Whip said, while he was a Minister with the DTI, that the Government would expect the Coal Authority to go beyond the minimum standards of environmental responsibility that are set by its legal duties, and to seek the best environmental result which can be secured from the use of the resources available to it. We consider that the Coal Authority should have the discretion to take action where circumstances demand, rather than be placed under such an indiscriminate duty as Amendment No. 177 would appear to envisage. There is clearly a need to have proper regard to use of public funds in addressing environmental problems of that kind.
While it is too soon to say what might emerge, the Coal Authority is currently consulting the regulators about concerns and priorities. I believe that that answers in part the questions posed by the noble Baroness, Lady Hilton, as regards the nature of the statutory duties and how the authority would go beyond its legal duties. I shall have to write to her on the question of the money it has, as I do not have the answer for her this evening.
I understand the concern expressed by the noble Lord, Lord Dormand of Easington, and by his noble friend Lord Mason of Barnsley in respect of a previous amendment, about the problems of the North East of England in particular, the closing of so many coal mines in Durham, and the consequent problems of the pumping of minewater from those abandoned mines. Perhaps the noble Lord misheard me. I indicated that the NRA's recent report stated that 1.5 per cent. of river length in England and Wales is currently affected by minewater pollution. I did not refer to what would happen if pumping operations ceased in the future. I also indicated to my noble friend Lord Crickhowell that I gather that, of that 1.5 per cent., only 0.5 per cent. of the river length in England is polluted by water from abandoned coal mines. I do not disagree with my noble friend that perhaps the 1 per cent. is more damaging than the 0.5 per cent.
It is right that my noble friend should draw attention to our European responsibilities. Earlier in the evening my noble friend raised the question of the provisions in the Bill concerned with abandoned mines and compliance with European Community legislation. My noble friend will be well aware that it is the Government's policy to comply with our European Community obligations in this area as in any other area.
The amendments tabled by my noble friend Lord Stanley of Alderley and the noble Earl, Lord Lytton, would maintain for landowners the defence against prosecution for pollution of controlled waters and the exemption from cost recovery by the agency where water is only permitted to flow from an abandoned mine unless they are the owner or operator of the mine. The amendment of the noble Earl, Lord Kintore, aims to achieve a similar effect as regards defence against prosecution in Scotland.
Under the provisions in the Bill, discharges from mines abandoned after the end of 1995 will be subject to the same rigorous controls as other discharges into controlled waters. That means that anyone causing or knowingly permitting such discharges will need to do so in compliance with a discharge consent. In addition, the provisions in Clauses 55 and 56 will place a requirement on mine operators to furnish the agencies with information regarding the consequences of abandonment for any future pollution of controlled waters. In those circumstances such abandoned mines will be well known to the regulator and it will be a matter of fact whether any landowner is either causing or knowingly permitting the discharge.
My noble friend Lord Stanley, in speaking to his amendments, drew attention to his concern at the possibility of innocent landowners being prosecuted for discharges from abandoned mines. An offence would be
The noble Lord, Lord Northbourne, and I believe the noble Earl, Lord Kintore, asked about the test of liability regarding "caused or knowingly permitted". The knowledge of an ability to prevent the pollution occurring is required to satisfy "knowingly permitted". That would be a difficult test to meet where there was pollution of an aquifer deep under ground. The owner of the surface land would be unlikely to know about it or be able to prevent such pollution.
The provisions in Clauses 55, 56 and 57 and Schedules 13 and 18 strike a balance between protecting the environment and creating a regime which is workable. They also remove a long-standing anomaly which is widely felt to be confusing and unnecessary. It would surely be wrong to remove that anomaly only to replace it with another, thus frustrating the Government's aim of putting all types of water pollution on the same footing.