Weighing up the law


After exploring the COMAH Regulations in May, Laura Page examines a recent, related prosecution


H


AVING LOOKED at the complex Control of Major Accident Hazards (COMAH) Regulations 2015, we will add context by


studying the recently concluded prosecution of Total Lindsey Oil Refinery Limited (TLOR), following a gas escape on 26 March 2015. Reports indicate that around 50 tonnes of high flammable and asphyxiating butane gas escaped from the Killingholme refinery. At the time, TLOR was carrying out planned maintenance and inspections, involving shutdowns of operating equipment and process units, pipework, vents and drains. One of the planned tasks was connecting a new 1km long butane line, providing an additional link between two processing units. It appears that due to its location, the new line was not part of the detailed procedures and checklists in place for the two processing units, with neither having overall responsibility for the new line. As a consequence, when commissioned, its


integrity ‘was assumed to have been checked’, but checks would have revealed that a high point vent at 40ft remained open. This went unnoticed, pumps were turned back on and neither unit detected that butane gas was being pushed through and released. This continued for more than three hours, by which time operators were arriving (at the height of maintenance, some 1,200 workers were on site), although the incident controller very quickly stopped the pumps, and secured the establishment of a water curtain to ‘knock down’ or control the release. The leak was dealt with by the site’s own staff, and emergency services were not needed. TLOR was charged and pleaded guilty to a


breach of the COMAH Regulations. Sentencing was carried out in accordance with the Sentencing Council’s Definitive Guideline 2016. In force since February 2016, this marked a distinct change, with fines in health and safety cases now directly linked


to the risk of harm due to failings rather than, as was usually the case previously, any actual harm caused. Its tariff based structure has specific starting points and ranges, and uses a nine step approach to increase consistency and transparency. This involves an assessment of the overall seriousness of the offence – culpability and risk of harm – giving the court a starting point and range of possible fines, depending on the size of the organisation. Although there were no injuries or health risks associated with the leak, reports indicate that the sentencing judge determined the incident to have a ‘high’ harm level and ‘medium’ culpability; in normal operating mode the refinery processes 220,000 barrels of oil a day, and apart from having over 500 employees, there are regularly a significant number of contractors on site. The court accepted there was no suggestion


that safety is generally disregarded by TLOR: there were no previous warnings that had been ignored, and no deliberate flouting of the law or sacrifice of safety made for profit. There had been prompt self reporting and full cooperation, and TLOR demonstrated that the plant had operated for 2.3m hours in the previous year without incident – its best safety performance for 20 years. In imposing a £400,000 fine, the court stated it


was ‘sufficiently substantial to have a real economic impact’ and ‘bring home to both management and shareholders the need to comply with health and safety legislation’. With a turnover of £2bn and a 2016 profit of £122m (although an operating loss of £19.2m), it could have deemed TLOR a very large company under the Guideline, and imposed a substantially increased fine. We can only speculate as to why not, but arguably TLOR’s safety record and cooperation had an impact. Things may have been very different had the position been otherwise


Laura Page is a solicitor in the health and safety team at Pinsent Masons


www.frmjournal.com JUNE 2018 1


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