Modern Legisaltion

In this article we shall discuss the similarity in regulatory approach between a number of apparently disparate pieces of modern legislation, and indicate some of the practicalities of being regulated under these provisions. This article deals with:

• IPPC (Integrated Pollution Prevention and Control Regulations 2000)
• COMAH (Control of Major Accident Hazard Regulations1999)
• MSER (Manufacture and Storage of Explosives Regulations 2005)

Note that the approach remains very similar to that taken by the first major piece of non-prescriptive legislation, the Health and Safety at Work, etc. Act 1974 (HSWA).

Application

The application process is a very significant activity in each case. With IPPC there is a deceptively simple application form, but this must be supported by an extensive information pack covering such items as process maps, energy use, waste streams and safety and environmental management systems. A key component is the Application Site Report, which is a detailed land survey, and sets the standard for the land when an application is made to relinquish the permit. The totality of this information can require several man months to pull together, and may well demand the use of a consultant who knows his way around the very extensive IPPC guidance (see later).

Although there is no application process as such for COMAH, within a given period of being identified as a Top Tier or Lower Tier site it is necessary to submit a Major Accident Prevention Policy (MAPP), and a Safety Report (for Top Tier Sites). The MAPP supplements the Safety Policy required by HSWA S. 2(3), and the Environmental Policy required by, for example, ISO14001; together these three documents set out the Operator’s intentions with regard to safety and environmental performance. The Safety Report is even more detailed than the IPPC application and, for example, might consist of three Parts. Part 1 would give detailed information on the site and the safety management systems in place. Part 2 might discuss each individual process in detail, basically broken down into a risk assessment and a discussion of the controls in place, with a justification of whether controls are such that the risks are either broadly satisfactory or ALARP (As Low As Reasonably Practicable). Processes where the risks were deemed to be unacceptable in the terminology of the HSE’s Reducing Risks, Protecting People would not be permitted to operate by the regulator. Part 3 of the COMAH Safety Report might typically be a gap analysis, where time based proposals for further decrease of the residual risks in ALARP processes would be presented to the regulator.

MSER basically replaces the Explosives Acts of 1875 and 1923, which, as you might expect, are classic examples of prescriptive regulation. In order to be allowed to store or process explosives on site, it is necessary to hold an explosives licence, which gives the permitted quantity of each type of explosive in each building on site. In applying for a licence for a particular building, it is necessary to be able to demonstrate that all required precautions have been taken to protect occupants of that building, and of neighbouring process buildings. Storage buildings, inhabited buildings on site, and in particular off site activities must also be protected. Explosive licences are calculated based on quantity/distance considerations - in other words, the allowed explosives quantity is determined by the distance to adjacent buildings, the type of explosives involved, and the protection such as mounding and compartmentalisation in the building in question. A licence application is made to the relevant licensing authority on an approved form; this is normally the HSE, but for smaller quantities may be the Police or Local Authority.

Regulator

The regulators for IPPC are the Environment Agency (in England, SEPA in Scotland), and for COMAH the EA and HSE acting jointly, although the EA mainly concentrate on environmental matters and MATTEs (Major Accident Threats to the Environment). Operators are helped by this situation, because information gathered for COMAH can be used for IPPC, and vice versa, which saves some effort.

To all intents and purposes industrial MSER sites are licensed by the HSE, which again gives commonality of approach, and data gathered for COMAH is also applicable to MSER.

Regulatory Approach

All three sets of legislation are in their own way a demonstration of the ‘polluter pays’ principle, or at least that the regulated party pays. Under IPPC there is an application charge for the permit itself, then an annual maintenance charge to cover the regulator’s administration charges. The maintenance charge is made up of five elements, the first three relating to how polluting the process is, the fourth to the OPRA (Operator Pollution Risk Appraisal) score, and the fifth to performance over the previous year.

Under MSER there is a charge for granting each building licence, although there is no annual administration charge.

Under COMAH a fee is payable to the regulator for any function relating to the enforcement of the regulations. In practice this means that time spent in considering the Safety Report, or auditing the facilities under the COMAH Intervention Plan, is charged to the Operator.

In practice, this means that all three sets of regulations are essentially self-funding.

Regulation under IPPC is focussed on compliance with the conditions set out in the IPPC permit, supplemented by a demonstration that BAT (Best Available Techniques) is being applied. This is determined by reference to sector guidance documents produced by EA/SEPA, which in turn are based on EU BREF Guidance Notes. As an example, for a particular IPPC sector such as Speciality Organic Chemicals, there is a Sector Guidance Note S4.02, which among many other points includes advice on how to carry out a waste minimisation audit. The EA will expect a waste minimisation audit to be carried out using the techniques given in S4.02, and the results to be supplied to the EA, who will then assess whether the audit is satisfactory. If not satisfied with performance, it would be expected that the EA would initially enter into a dialogue with the Operator, although ultimately the EA/SEPA have variation, revocation, suspension and enforcement notices available to them.

Continual improvement can be driven through the permit conditions, the BAT guidance, and gradual tightening of conditions. As well as ‘vertical’ sector guidance, there is also extensive generic ‘horizontal’ guidance.

Having assessed the COMAH Safety Report as satisfactory, the regulator then audits performance against the ‘promises’ made in the Safety Report. In other words, the Operator must be able to demonstrate that he is doing what the Safety Report claimed. Regulation under COMAH consists of detailed and in depth audits of different aspects of the management system, such as Control of Contractors or Human Factors, the aim being to cover the whole of the management system on a rolling basis over, say, a five-year period. Audit findings drive continual improvement of the management system; this is supported by a mandatory review of the Safety Report at least every five years. Improvement and Prohibition Notices are available to the regulator, although again it would be expected that necessary improvements would be agreed by dialogue. There is extensive guidance on COMAH, such as L111, Guide to the Control of Major Accident Hazards Regulations 1999 (as amended), and Guidance on the Interpretation of Major Accidents to the Environment for the Purposes of the COMAH Regulations.

Similarly, under MSER it must be demonstrated to the regulator that the key requirements of the regulations have been met before a licence will be granted. These key requirements are:

• Preventing fires and explosions
• Measures to limit the extent of fire or explosion
• Protecting people from the effects of fire or explosion.

A risk-based approach is used to demonstrate compliance with these key requirements, and the approach is described in the key guidance, L139, Manufacture and Storage of Explosives. Failure to comply would mean a licence not being granted, or being withdrawn, but again it would be hoped that a mutually acceptable solution could be achieved by dialogue with the licensing authority

Public Access to Information

Each of COMAH, IPPC and MSER has extensive provisions for public access to information, subject to certain restrictions such as national security. In addition, there are opportunities for the IPPC permit application to be considered by various statutory consultees such as Natural England, and MSER includes provision for new licence applications to be sent out for Local Authority Assent. COMAH requires certain information to be made available to all residents within a notification zone, normally in the form of a COMAH Information Leaflet. This includes advice on the name of the Operator, the hazardous substances handled, and the action to be taken in the event of a declared major incident. Also, COMAH requires an off site emergency plan to be prepared and practised at least every three years; this is produced by the local authority emergency planning department in conjunction with the site operator, and is agreed with all the ‘blue light’ services. Routine correspondence with the regulator under IPPC, including compliance with permit conditions, is placed on the public register.

Surrender of Permits, Licences

Formal application must be made to the regulator to ‘give up’ an IPPC permit. This will only be permitted when it has been demonstrated that ground condition is no worse than it was when the permit was granted, and any other conditions set by the regulator have also been met.

The process is somewhat easier under COMAH and MSER. COMAH will cease to apply when the Operator no longer holds the trigger quantity of hazardous materials. MSER has provision for the licence to be revoked by agreement between the licensing authority and the licensee; in effect the licensee agrees to surrender his licence.

Summary

This article has hopefully given a flavour of how regulation under modern legislation operates in practice. Although extensive powers are available to the regulators, and ultimately processes can be closed down, the aim is to reach agreement by dialogue and discussion.

There seems little doubt that the general principles of modern legislation discussed, such as:

• application process
• extensive formal guidance (which allows for interpretation by the regulators)
• self funding of regulation
• public access to information
• risk based approaches
• surrender requirements

will be carried forward into future regulations and will form the approach taken, at least to ‘polluting’ and ‘high-risk’ industries, for the foreseeable future. From the point of view of the Operator, although the regulatory burden is high and no doubt some relaxation would be welcomed, at least the synergy between these regulations and the respective regulators ensures that as far as possible there is a minimisation of wasteful duplication of effort.

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