Making Regulation Work – a new approach to regulating Major Accident Hazards in the UK
22 April 2015
Major Accidents Hazards are regulated in the UK through the Control of Major Accident Hazards (COMAH) regulations. COMAH regulations implement the Seveso II Directive(1), aimed at the prevention and control of onshore major-accident hazards involving dangerous substances. This article from the UK Petroleum Industry Association looks at recent changes to COMAH and impacts on operators.
COMAH is enforced by the Competent Authority (CA) which consists of the Health and Safety Executive (HSE) and Environment Agency (EA), the Scottish Environment Protection Agency (SEPA) and Natural Resources Wales (NRW).
From April 2011 to April 2013, under the government’s Red Tape Challenge, designed to review and reduce regulatory burden on business, over 21,000 statutory rules and regulations were examined. For industry regulated under COMAH, the process began with a chemical sector review and an independent review of health and safety legislation(2). Findings were subsequently analysed by the Better Regulation Executive (BRE) as part of its ‘Focus on Enforcement’ programme.
Understanding the issues
COMAH is a goal setting regime. This means that the CA does not set prescriptive requirements but cites expectations, national and international standards and good practice. Industry is required to demonstrate how it meets these objectives as far is as reasonably practicable(3). Whilst this approach promotes innovative thinking and continuous improvement, assessing and determining what is reasonably practicable and proportionate can be quite complex. To add to this complexity, COMAH is regulated by four different agencies, each having specific priorities and objectives.
Four main trade associations represent the interests of a large number of COMAH sites in the UK. These are the UK Petroleum Industry Association (UKPIA), the Chemical Industries Association (CIA), the Tank Storage Association (TSA) and the Chemical Business Association (CBA).
The trade associations acknowledge that the regulatory regime under COMAH is broadly effective, particularly since a remodelling exercise in 2010. However, they identified a number of areas for improvement:
• Multiple agencies enforcing the same legislation, duplicating inspection and requests for information
• Agencies with different priorities, making targeted improvements difficult
• A reduction of in-house specialists and growing reliance on consultancy services can lead to confrontation with specialist inspectors
• Well performing sites do not always receive recognition when planning inspections
• Sites are not always advised on which inspections are planned and how many inspectors will be on site, making planning and budgeting difficult
To address these issues, recommendations to the BRE programme included the following:
• Single regulatory contact for COMAH
• Recognition of good performance
• Improved appeals’ mechanism
A single regulatory contact
As part of the BRE programme, a COMAH Intervention Manager (CIM) role is being developed to provide a single interface for industry on all COMAH regulatory matters, from safety to the environment. The CIM will be generally represented by the site’s existing HSE regulatory inspector, except on sites where environmental risk far outweighs safety risks. In these cases, the role of CIM would be held by the assigned environmental officer. As well as existing regulatory duties, the CIM will be responsible for:
• Acting as the single point of contact for all safety and environmental regulation under COMAH.
The COMAH Intervention Manager
• Acting as the project manager for all COMAH regulatory activities, including co-ordination of specialist inspection teams.
• Developing the COMAH intervention plan, describing which inspections will take place and when.
• Facilitating the review of the intervention plan with the site operator – understand and agree which inspections will take place, when and by whom.
• Work with other relevant Competent Authority partners to ensure that there is no overlap or duplication with other regulatory regimes (e.g. Environmental Permitting).
The CIM will certainly provide greater efficiency for regulator and industry by reducing the risk of duplication in both inspection activities and requests for information. More information on the role of the CIM can be found in the COMAH Intervention Manager User Manual (4).
Recognition of good performance
High-hazard industries require regulation and must be subject to some level of intervention to demonstrate that risks are managed appropriately. The concept of recognition for good performance is particularly valuable as it could reduce time and depth necessary for some inspections, and take credit for third party verification schemes (subject to review of process and findings) as evidence of regulatory compliance.
Recognition of good performance may have an influence over the depth of intervention identified in the COMAH intervention plan. However, any influence must be based on:
• Hazard – how dangerous is the site’s activity?
• Performance – how well does the site score against regulatory priorities?
• Performance – how well does the site perform against its own performance indicators?
• Continuous Improvement and Leadership – does the site engage in relevant initiatives?
The influence of good performance when planning for interventions is subject to a discussion between the site operator and the CIM, who agree where some level of recognition could apply, along with the evidence required.
More information on performance recognition can be found in the Performance and Recognition Framework and Examples of operator activities in scope of the framework (5).
A formal challenge mechanism, allowing site operators to challenge regulatory actions arising from inspections, has also been developed. It provides clear and documented escalation points, outcomes and expectations, and applies to both safety and environmental actions raised by the CA. However, it is important to note that the mechanism does not apply to improvement or prohibition notices.
The challenge mechanism is a four stage process with clear escalation routes:
• Stage 0 – resolve the issue locally with the site inspector (or CIM) to avoid engaging in the formal challenge process.
• Stage 1 – challenge reviewed by the inspector’s line manager.
• Stage 2 – challenge reviewed by the CA area/operations manager. During this particular stage, the challenge may also be considered by the relevant Trade Association.
• Stage 3 – challenge reviewed by the Independent Review Challenge Panel (IRCP).
Typically, should the site operator wish to purse the challenge past stage 3, a judicial review will have to be sought.
More information on the challenge mechanism can be found in Understanding COMAH- The challenge mechanism (6).
COMAH Strategic Forum
The COMAH Strategic Forum, which includes representation from senior officials within the CA, Government and Trade Associations, is currently overseeing the implementation of changes to the regulation of major accident hazards in the UK. The Forum aims to ensure the effective implementation of these changes and determine how best to measure and report their success. Looking ahead, the Forum will continue to review industry and CA’s performance to identify potential strategic and cross-sector areas for improvement, commissioning work were appropriate or engaging in dialogue with government. It will also consider challenges, from the challenge mechanism, that have significant cross-sector impact.
Changing the way in which regulation is applied is a complex task, requiring stakeholders’ commitment and participation. The COMAH Strategic Forum will continue to play a crucial role in monitoring the implementation of changes and in measuring their success. The task ahead will require collaboration between industry and regulator, along with continued scrutiny in order to improve performance in process safety. The challenge will be to ensure that changes under the Better Regulation Review deliver both consistency and efficiency for COMAH.
(1) Council Directive 96/82/EC
(2) Reclaiming health and safety for all: an independent review of health and safety legislation (Löfstedt report), 28 November 2011.
(3) Refer to the HSE regulatory model for more information: http://www.hse.gov.uk/hid/
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