Comment by: Alison Galbraith
Focus area: Chemicals
Regulator concerned: Environment Agency,Health and Safety Executive (HSE)
Our comments refer to both the HSE and SEPA as our industry’s facilities are all Scottish based. Although the BIS reivew of enforcement in the chemicals sector does not cover Scotch Whisky, we believe our experiences of the Competent Authority (CA) may be relevant.
In the Scotch Whisky sector, approximately 47 lower tier and 19 top tier sites come under COMAH due to the flammable properties of Scotch.
‘Regulatory creep’ has been evident in relation to COMAH since 1999. Our members report that, whilst it initially appeared straightforward to comply with COMAH, the CA’s expectations are often unclear, leading to significant amounts of time being spent writing and re-writing Safety Reports. The CA frequently reverts to the operator asking for more detail in a number of areas particularly in relation to ALARP (‘as low as reasonably practicable’) and this additional detail often leads to many hours of work for the regulated company or the use of external consultants to provide further information (often to prove a negative). These ‘hidden’ costs of health and safety regulation are usually where businesses can incur disproportionate costs proving that their operations do not, in fact, pose a risk. We firmly believe that regulation and regulatory intervention should be proportionate to the level of risk that an operator poses. Our members are increasingly finding that whisky warehouses are being expected to comply with very stringent COMAH rules by the CA, consistent with high-hazard installations. The CA should speak with one voice, but in our experience this rarely happens.
We have concerns regarding the CA’s enforcement of the Regulations and, in particular, inconsistency and disproportionality of approach taken at some COMAH sites. For example, the CA should only seek basic requirements for lower tier sites which take into account the SME’s capacities. Instead, there has been a blurring of distinction between the treatment of top and lower tier COMAH activities in terms of regulatory requirements.
We understand the need to reduce risk to both people and the environment and fully support the CA’s key goals of preventing major accidents, limiting the consequences of major accident hazards and improving the health and safety of people. But we are concerned about the growing cost of compliance with little financial justification or benefit.