Weighing up the law
COMAH Regulations are complex, as Laura Page explains
are enforced. In this and next month’s article, some relevant cases will be discussed, including the Total Lindsey Oil Refinery Limited (Total LOR) case. COMAH Regulations seek to prevent major accidents and, should one happen, require businesses to limit effects on people and the environment. They are aimed at scenarios in which significant quantities of flammable, environmentally hazardous or toxic substances on a site increase the potential to cause multiple injuries or fatalities, either to those working on site or living in the local community; and/or cause damage to the environment. These aspects are worth considering in order to understand how enforcing authorities may approach incidents. They apply to establishments which have any specified dangerous substances present at or above certain thresholds (or could have as a by product of a process, or as a result of a loss of control of a process). An online guide on the Health and Safety Executive (HSE) website helps establish if a business falls within the regulations. COMAH establishments are regulated by the
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Competent Authority (CA), which comprises the HSE (or Office for Nuclear Regulation), the Environment Agency, the Natural Resources Body for Wales (NRW) and the Scottish Environment Protection Agency (SEPA). Under the COMAH Regulations, the CA has statutory responsibility to provide regulatory oversight of high hazard industries using or storing quantities of dangerous substances that fall within their scope. Operators of establishments subject to the
regulations have a general duty to ‘take all measures necessary to prevent major accidents and to limit their consequences for human health and the environment’. “Major accidents” covers a widely defined field, and include a major emission, fire or explosion ‘leading to serious danger to human health or the environment’. As in other health and
16 MAY 2018
www.frmjournal.com
HERE ARE some unusual and interesting aspects to the Control of Major Accident Hazards (COMAH) Regulations 2015 and how they
safety areas, the HSE guidance ‘recognises that risk cannot be completely eliminated’, with proportionality key between the risk and control measures taken. Operators must submit a notification to the
CA setting out the name and address of the establishment; details of the dangerous substance(s), activities or proposed activities; and a description of the immediate environment and neighbouring establishments, plus details of anything likely to aggravate the consequences of a major accident. There are additional requirements, depending on whether an establishment is lower or upper tier. For example, although Regulation 5 requires every operator to prepare and keep a document setting out its major accident prevention policy (MAPP), upper tier MAPPs must be included in a separate safety report submitted to the CA. This report is designed to demonstrate that the
establishment has in place suitable arrangements to prevent and control a major accident. Upper tier operators must also prepare, review and test emergency plans to ensure major accidents can be contained and controlled, and consequences minimised. Information must be communicated internally and externally, although the latter is carried out by the appropriate local authority after receipt of necessary information from the operator. The Total LOR incident saw the escape of 50
tonnes of highly flammable butane gas during planned maintenance, although luckily noone was injured, and Total LOR was able to manage it using its own resources, rather than the emergency services. This resulted in a fine of £400,000 plus £15,975 costs being imposed on 22 February 2018. Although COMAH Regulations are not the most commonly prosecuted, there is certainly a stringent regime to comply with, and serious consequences if they are breached
Laura Page is a solicitor in the health and safety team at Pinsent Masons
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