The existence and operation of the charging regime for major-hazard sites are seen as the major irritants for the chemicals industry, a Government review of how the COMAH Regulations are enforced has found.
Last year the Department for Business, Innovation and Skills (BIS) carried out a ‘Focus on Enforcement’ review to examine the industry’s day-to-day experience of regulation and how current enforcement practices could be reformed to reduce red tape for major-hazard sites.
Publishing its response to the consultation yesterday (6 February), BIS says its reforms will include integrated inspection regimes, greater support for companies who wish to grow their business, and introducing more transparency into the COMAH-charging appeals process.
In particular, the most significant irritant to chemicals businesses, in relation to COMAH enforcement, is the charging regime. Concerns about transparency and consistency were raised by businesses and trade bodies, which reported differences in the way that charges were applied and a lack of clarity, on occasions, in relation to the final bill. Examples of inconsistencies fed back to the review team included how inspectors’ travelling time was charged, how staff handovers were billed, and being charged when new inspectors were reading up and getting up to speed on sites.
As well as a widespread perception that chargeable hours are increasing, some businesses felt that charging is driven more by “covering the cost base, than cost recovery” and others view it as, effectively, an ‘operator tax’.
Other concerns highlighted a negative impact on the relationship between duty-holders and inspectors – with some in the sector suggesting it was becoming a disincentive to seek advice in case they were charged, or it led to an inspection; and a detrimental impact on investment – with charges identified as being sufficiently high in some cases as to affect spending decisions.
Mike Macdonald, negotiations officer at Prospect – the union that represents HSE inspectors – countered that if the regulator had more resources to work with the Environment Agency (its partner regulator in the Competent Authority for COMAH enforcement) on carrying out and coordinating inspections, then “yes, safety would be more expensive in the short term but, in the long term, the benefits for the high-tech industries and the country, in general, would be far greater”.
The potential disincentive of not investing in safety and letting sites ‘wind down’ is likely to be outweighed by the incentive of avoiding a hefty penalty in the courts through non-compliance, he explained.
He added: “As long as the changes are not designed to reduce the income of the HSE, in principle, having a more clearly-defined and easier charging mechanism would have some advantages. It could reduce the bureaucracy and avoid the impressions [from businesses] that inspectors experience, which does lead to some operators checking their watches.”
Also commenting on the charging reforms, IOSH head of policy and public affairs Richard Jones said: “Given that some chemicals-industry operators are concerned about inconsistency and transparency issues in charging and feel that the charges seem to be growing, we’re pleased to note that the regulator is responding positively and we would hope that any relevant lessons learned here can be fed across to the Fees for Intervention scheme.”
In addition to the changes to fees and reviewing the appeals process to increase transparency, the HSE and Environment Agency have undertaken to: coordinate their activities more closely; reduce site visits and burdens by integrating some of their inspection regimes; and develop an approach with industry that can take greater account of company performance in planning inspections.
Steve Elliott, chief executive of the Chemicals Industries Association, said: “We believe this review is good news for the chemical industry and the regulation of businesses, making an essential contribution towards the UK’s economic recovery and growth.
“Companies, workforces and the general public have much to gain from a pragmatic, efficient and transparent approach to regulatory enforcement.”
Gordon MacDonald, chair of the COMAH Competent Authority Strategic Management Group, also welcomed the findings. Noting the positive feedback from businesses about the quality of inspectors, he said: “We are determined to work with industry to make the COMAH regime as clear and straightforward as possible for all companies, without compromising the protection of people and the environment.”
The full review findings are at www.discuss.bis.gov.uk/focusonenforcement
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