Comment by: Jo Lloyd
Focus area: Chemicals
Regulator concerned: Environment Agency,Health and Safety Executive (HSE),Local Authority or Fire Authority
Response by the Chemical Industries Association:
BIS Review of Enforcement in the Chemicals Sector – COMAH
CIA welcomes this review of enforcement in the chemicals sector, with a particular focus on COMAH, and we are pleased to respond on behalf of our industry. We have previously responded formally to several earlier consultations touching on similar issues, including the Lofstedt Review and the BIS Review on Transforming Regulatory Enforcement, both in 2011.
CIA is the largest industry association representing the chemicals manufacturing and allied industries in the UK. We have approximately 120 member companies and 160 manufacturing sites. Of these, 93 are COMAH Top-Tier sites and 51 Lower-tier sites. We understand that there are about 980 COMAH establishments currently in the UK (350/630 TT/LT), which means we represent almost 15% of the entire UK COMAH base. Furthermore, because of the diversity of our membership (including refining, pharmaceutical and speciality chemicals) and the fact that many of our members are the larger chemical manufacturers and refining operations, we consider we have a unique perspective on the major hazards industry and its regulation in the UK.
The scoping document for the BIS Survey has focused on some specific areas, and we deal with these below. However we have some general points we think it would be useful to set out:
• Firstly, major accidents in the chemical industry are fortunately relatively infrequent, due to the commitment of industry to high standards of health, safety and environment and also because of the rigorous regime operated by the COMAH Competent Authority (CA) – HSE, EA and SEPA. Despite this, we recognise that there is no room for complacency. We are actively working to raise process safety standards and competence across our industry – both directly by leading our own initiatives, and by joint work with the CA and others such as the Sector Skills bodies.
• Most of our members would see the HSE as the prime COMAH regulator, as the CA inspection programmes for our members based on our knowledge of Intervention Plans companies have received are weighted far more towards health and safety issues.
• The recent COMAH ‘Remodelling’ review exercise by the CA, which we were pleased to contribute to, has improved the transparency and duplication of inspections over the last couple of years. Our knowledge of how these aspects work ‘on the ground’ indicates there are still some areas where further bedding in is necessary before consistency across the country can be achieved, but we acknowledge that it is going in the right direction.
• While we can give a generally positive picture of how the efforts of the regulators and industry seem to be combining to improve the process of implementation and enforcement of COMAH, we are nevertheless surprised that in the current review there is not a greater emphasis on exploring more radical models for the organisation of COMAH enforcement, including the possibility of streamlining under one regulator. While we have worked hard in our regular and constructive contact with HSE, EA and SEPA to improve the impact and the effectiveness of COMAH inspection on business, and acknowledge the work by the regulators in this, we feel that the coordination and consistency necessary to manage this effectively across the country for our industry would be better served by a single regulatory body reporting to one Government department and with one set of policies and operational arrangements for COMAH. We certainly do not underestimate the complexities that would be involved in fully considering the implications and practicalities of this, however we consider that it is worthy of such consideration. Indeed, we also believe there is scope to extend this model further in that the regulation of high hazard sites would be more efficient and effective if the single regulator model also included all other regulatory activity on site such as Environmental Permits, other HSE statutory instruments and local authority engagement. This would address the current problem with regulators from a business perspective with the responsibilities split between separate organizations, with separate cultures, in separate Government departments. There has never been the drive to really move to fully integrated working to regulate safety and environment and in a way that is industry-friendly and that is practiced in some other Member States.
• Finally we would like to record again, as we have done in response to previous reviews, that the policy of cost-recovery for COMAH – i.e. Charging – remains the single most troublesome issue that businesses in the UK report to us. Responses from our members suggest a rising trend in annual cost of COMAH to companies, and for many companies the cost is both a disincentive to growth (some sites choosing to limit inventory and process to stay out of Top-Tier status) as well as a constraint on improving safety – we have several reports from companies that they have deferred or cancelled planned improvements they had identified as necessary because they had large Charging bills to pay instead. Having made these general points, we recognise that charging is not a major focus of the current review and therefore we have not followed this up with further information in this response.
Specified areas of regulatory activity identified in BIS scoping document
In preparation for our response, we surveyed CIA members on their views on these issues. CIA also has its own views, based on the national picture we see from our contact with member companies across the country. The responses below represent the combined response, and we have indicated the strength of views from member responses in percentage terms which we hope will be useful.
Provision of advice on compliance with the law
Generally we have few issues with the quality and accuracy of this aspect of the regulator’s work. Where there are problems, they tend to be when there is substantial turnover of inspector staff for a site (so potential breakdown of developed relationships, need for re-familiarisation with site process and inspection history etc).
However a regular concern raised by member companies as regards advice on COMAH health and safety issues is the increasing tendency for the regulator to charge under COMAH for the provision of advice – this often suppresses communication with the regulator by industry.
From our survey of members, 86% of respondents rated the regulator as Good (62%) or Average (24%) in this respect. A further 10% rated them as Excellent.
Inspections of locations or equipment
A significant improvement in the planning of inspections has been achieved by the provision of 2-year Intervention Plans by the CA, provided for each site by the start of April each year. These plans indicate the areas that the CA inspectors intend to focus on; the detail is more accurate for the first year, which is understandable, and as the plans are shared between HSE and EA/SEPA they are reasonably joined-up. There are a few rough edges that are still being ironed out, but this has been a very welcome development which has assisted industry in planning the necessary resource and budget for CA inspections. However, our Members tell us that though they now have greater clarity and detail through their Intervention Plan, we have received several reports of plans that describe a greater number of inspection days on site when compared with previous years when there has been no increase in hazard or risk.
In most cases, members tell us that the topics for inspection identified in Intervention Plans are appropriate priority issues for the hazards at their site. Furthermore, the move to Strategic Topic Inspection has improved both consistency and transparency of what is expected. The Delivery Guides on HSE website for each inspection topic, which constitute guidance to CA inspectors and is also available to site operators, are helpful.
Nevertheless we are aware of some inconsistencies across different parts of the country – inspectors at member sites in one part of the country will require something different or pursue a different issue to those in other regions. There is also often an issue where specialist inspectors have a particular ‘agenda’ on technical aspects of inspection and on which companies sometimes find difficulty in achieving close-out.
From our survey of members, 89% reported they had received their Intervention Plans by the end of March 2012. However 44% reported that the Intervention Plans contained significantly more planned inspection than in previous years.
On arranging and carrying out inspections, 81% reported this as Good (62%) or Average (19%), but 13.5% also rated this aspect as Poor
One final point that was evident from our survey relates to COMAH Environmental Inspections in that most of our members’ COMAH sites also come under the inspection regime of the under the EPR/PPC regulations which can lead to duplication of effort as many of the same environmental risk measures are assessed. In 64% of cases a site COMAH Environmental Inspector and an IPPC Permit Inspector are a different person which can lead to duplication of resources for both site and regulator.
Requirements to make formal applications, or provide information
Land Use Planning, and specifically Hazardous Substance Consent, is an area where CIA regularly learns of problems for member companies and on which we have had direct contact with HSE in support of members.
The UK chemicals industry needs to grow and develop by attracting investment, in order to be able to respond to business opportunities and meet the challenges of global competition. There is a necessary ‘Licensing’ regime for consent to store and use hazardous substances needed for many chemical processes. The Planning (Hazardous Substances) Regulations are administered by local authorities for the provision of the required Consents, with a technical assessment input by HSE specialists before a decision on the application can be made. The HSE standard time to respond to applications for Consent is 6 months from receipt from local authority. The system involving application to a local authority, referral to HSE, detailed technical assessment and communication with the company, HSE advice back to the local authority and finally a response to the company, has inherent delays and inefficiency, and is not ‘business friendly’. Industry needs greater certainty that if investment is provided, the necessary consents can be obtained and in place in a reasonable time – this requires a much quicker assessment time and a more streamlined overall process.
One solution which CIA has advocated could be to make HSE the lead body, rather than local authorities, for Consent applications. HSE would need a modest improved resource for this, but there would be a significantly reduced role for LAs; it would also have the advantage of managing the process from where the technical expertise lies; and there is a clear connection with the COMAH Safety Report assessment system which HSE already operates. This proposal for changed arrangements for lead responsibility of Consent applications was one of the recommendations of a multi-stakeholder Steering Group that reported to the Department for Communities & Local Government (CLG) in 2009. CLG established a Steering Group to advise on land use planning as one of the recommendations of the Major Incident Investigation Board report following the Buncefield explosions. CIA was represented on the Steering Group which was led by consultants WYG Planning & Design and which reported to CLG.
From our survey of members on this aspect, 46% reported the regulator as ‘Good’, and 49% as ‘Average’. In addition to comments on the Consents process, for those companies that had had to make applications, there were also several comments about the requirement to submit multiple (up to 7 or 8) printed paper copies of COMAH safety reports – as a safety report is often a very large document in several volumes with appendices and drawings, this is both expensive and bureaucratic.
Emergency Planning and Response has been a Strategic Inspection Topic for the CA for about 3 years, and is a logical priority for major hazard companies given the lessons from recent major accidents that have highlighted the importance of this aspect. Hence we consider this to be an appropriate priority and topic area.
One area where we have some increasing concerns however is the role of local authorities. For off-site emergency plans, the COMAH requirement is shared between industry and the LA, with the latter having the primary responsibility to prepare, maintain and test an emergency plan based on information provided by the company about potential scenarios. We are aware that LAs have had to implement significant cuts in size and budget over the past few years, and it is essential that this key activity required under COMAH is ringfenced to ensure it is properly resourced and without transferring unrealistic and unreasonable increased costs to industry.
In our survey of members on this question, 88% reported this as ‘Good’ (56%) or ‘Average’ (32%) while 9% considered their experience ‘Poor’.
Requirements to attend courses / obtain particular qualifications
We have seen a few limited examples from within member companies where the regulator has suggested individuals should undertake particular training in order to develop or improve competence in a specific area – for example risk assessment techniques for preparing COMAH safety reports, or process safety leadership. When this happens it is usually the competence that is highlighted as the objective rather than attending a particular service provider course. We think that this is perfectly reasonable where the regulator has identified a particular competence deficiency, and generally helpful. In most cases companies already have their own training requirements and arrangements for employees in key roles; furthermore CIA is leading on the development of appropriate courses for staff in member companies with COMAH responsibilities – working with HSE, TU and the Skills bodies Cogent and National Skills Academy on the development of Standards for topics including Leadership and Process Safety Management.
In our survey of members, 76% reported they had not been subject to requirements to attend courses or obtain particular qualifications. Of the 24% where this had been recommended, most were in technical areas and there was some recognition that this was helpful in demonstrating competence.
Enforcement proceedings taken against individuals or organizations in the event of failure to comply with regulations
We understand the need for formal enforcement in appropriate circumstances of serious or persistent failure to comply with legislation. CIA does not condone any breach of regulation, in fact we actively encourage our industry to go beyond basic compliance and to adopt ‘best practice’ in the prevention and control of major accident hazards, and to continually improve. Nevertheless we have some experience of member companies being subject to enforcement proceedings. Generally we find that there is an increasing tendency towards formal enforcement such as Notices at the first sign of a breach rather than a site being given advice and time to correct the matter first; and furthermore that when a site has been the subject of formal enforcement there is a greater tendency towards more intensive follow-up inspections and further formal enforcement. While this is entirely necessary and understandable in the case of recalcitrant operators and for the most serious breaches, we do not consider it is helpful or necessary for the majority of employers who are compliant and positive about operating within legal requirements.
We are not aware of any experience within CIA membership of formal enforcement against individuals.
In our survey of members, the majority had had no experience of formal enforcement but of those who responded 92% rated this aspect as ‘Good’ (52%) or ‘Average’ (40%). There were positive comments about fairness and professionalism by the regulators in this aspect.