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Cost recoverable activities

  1. This Annex sets out the functions placed upon the Competent Authority (CA) under the COMAH regulatory regime and provides information on the nature of the activities for which a charge will be made.

    Regulation 17(1) - Functions of competent authority in relation to the safety report:

    The competent authority shall within a reasonable period of time of receiving a safety report-

    (a) communicate the conclusions of its examination of the report to the operator of the establishment concerned; or

    (b) prohibit the operation or bringing into operation of the establishment or installation concerned or any part thereof in accordance with regulation 18.

  2. The CA will charge for all work undertaken under Regulation 17(1)(a) for the examination of the safety report and communication of the findings to the operator.

  3. COMAH requires operators to submit safety reports at different stages within the lifetime of an establishment and to review and revise them every 5 years of when significant changes are made. The main differences are explained below.

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New Establishments

  1. Operators of establishments, construction of which is commenced after COMAH comes into force, should submit a pre-construction safety report within a reasonable period of time before construction starts. With very little prior information, the CA may require up to 3 months from receipt to assess the safety report and communicate its conclusions to the operator.

  2. Operators of establishments which come into operation for the first time after COMAH comes into force should submit a pre-operation safety report. It is proposed that a "reasonable period" prior to operation for submission is normally up to 6 months.

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Existing Establishments

  1. There are a variety of arrangements for operators of existing establishments for the timescale and form of submitting their first COMAH safety report. These arrangements are beyond the scope of this document but are covered in the CA's Guidance Booklet on COMAH. In all cases, however, the time taken by the CA to assess safety reports from operators of existing establishments will depend on the size and complexity of the establishment or the nature and scope of any modification or changes.

Assessment Process

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  1. Examination of safety reports is to ensure that the report meets the purposes in Schedule 4 Part 1, contains the information in Schedule 4 Part 2 of the COMAH Regulations and to decide whether the measures taken by the operator for the prevention and mitigation of major accidents are seriously deficient. Part 1 of Schedule 4 sets out the purpose of a safety report.

    The purpose referred to in regulation 7 are as follows:

    1. demonstrating that a major accident prevention policy and a safety management system for implementing it have been put into effect in accordance with the information set out in Schedule 2;

    2. demonstrating that major accident hazards have been identified and that the necessary measures have been taken to prevent such accidents and to limit their consequences for persons and the environment;

    3. demonstrating that adequate safety and reliability have been incorporated into the

      • (a) design and construction, and

      • (b) operation and maintenance,

      • of any installation and equipment and infrastructure connected with its operation, which are linked to major accident hazards within the establishment;

    4. demonstrating that on-site emergency plans have been drawn up and supplying information to enable the off-site plan to be drawn up in order to take the necessary measures in the event of a major accident;

    5. providing sufficient information to the competent authority to enable decisions to be made in terms of the siting of new activities or developments around establishments.

  2. Part 2 of Schedule 4: sets out the minimum information to be included in a safety report.

    The information referred to in regulation 7(1), (5) and (7) is as follows:

    1. Information on the management system and on the organisation of the establishment with a view to major accident prevention.

      This information shall contain the elements set out in Schedule 2.

    2. Presentation of the environment of the establishment:

      (a) description of the site and its environment including the geographical location, meteorological, geographical, hydrographic conditions and, if necessary, its history;

      (b) identification of installations and other activities of the establishment which could present a major accident hazard;

      (c) description of areas where a major accident may occur.

    3. Description of installation:

      (a) a description of the main activities and products of the parts of the establishment which are important from the point of view of safety, sources of major accident risks and conditions under which such a major accident could happen, together with a description of proposed preventive measures;

      (b) description of processes, in particular the operating methods;

      (c) description of dangerous substances:-

      (i) inventory of dangerous substances including -

      - the identification of dangerous substances : chemical name, the number allocated to the substance by the Chemicals Abstract Service, name according to International Union of Pure and Applied Chemistry nomenclature;

      - the maximum quantity of dangerous substances present;

      (ii) physical, chemical, toxicological characteristics and indication of the hazards, both immediate and delayed for people and the environment;

      (iii) physical and chemical behaviour under normal conditions of use or under foreseeable accidental conditions.

    4. Identification and accidental risks analysis and prevention methods:

      (a) detailed description of the possible major accident scenarios and their probability or the conditions under which they occur including a summary of the events which may play a role in triggering each of these scenarios, the causes being internal or external to the installation;

      (b) assessment of the extent and severity of the consequences of identified major accidents;

      (c) description of technical parameters and equipment used for the safety of installations.

    5. Measures of protection and intervention to limit the consequences of an accident:

      (a) description of the equipment installed in the plant to limit the consequences of major accidents;

      (b) organisation of alert and intervention;

      (c) description of mobilisable resources, internal or external;

      (d) summary of elements described in sub-paragraphs (a), (b) and (c) necessary for drawing up the on-site emergency plan.

Practical Considerations

  1. It is expected that this work will mostly be undertaken by considering the information provided in the report and may not involve site visits. However, visits may prove necessary in some circumstances where inspectors are unfamiliar with the site, particular process or surrounding environment or where it is essential to directly view the establishment to undertake the examination of the report. Site visits will also be made where the examination of a safety report leads the CA to believe that the measures taken by the operator for the prevention and mitigation of major accidents may be seriously deficient and will be charged under the category of inspection.
  2. Assessments will be planned and scheduled within the CA's annual work plans dependent on the date upon which the safety report is submitted. The amount of time spent on the examination of individual reports will be based upon the nature of the hazards present, the complexity of the industrial process involved at the establishment and the manner in which this information is presented in the report together with the CA's current knowledge of both the establishment and the measures employed to prevent a major accident or to limit its consequences. Examples of the costs involved for a complete assessment of some typical safety reports are shown in Annex C.

  3. To determine whether the operator has demonstrated that all measures necessary have been taken to comply with the regulations, the CA may request further information to be provided and a charge will be made for the assessment of this additional information.

Regulation 7(9) - Deferred Submission of Safety Reports for Existing CIMAH Sites

  1. Existing CIMAH sites do not need to secure approval from the CA to defer the submission of a safety report to 3 February 2000. However, if an operator is looking to defer to a later date (but no later than 3 February 2001), they must get agreement from the CA in writing. The CA will charge for all work associated with considering applications from operators to defer submission of a safety report under this provision.

    Regulation 7 - Derogation of Safety Reports

    7(12) Where it is demonstrated by the operator of the establishment to the satisfaction of the competent authority that particular dangerous substances present at an establishment, or any part thereof, are in a state incapable of creating a major accident hazard, the competent authority may in writing and in accordance with criteria established by the European Commission pursuant to Article 9.6(b) of the Directive, limit the information required to be included in the safety report for that establishment to those matters which are relevant to the prevention of residual major accident hazards and the limitation of their consequences for persons and the environment.

  2. If operators can demonstrate that particular dangerous substances present at their establishment cannot give rise to a major accident then they can apply to the CA to limit the information to be included in a safety report. Considering applications for derogation will be undertaken as the initial stage of the assessment of the safety report and the CA will charge for its work in considering such claims.

Regulation 19 - Inspection

  1. The CA will charge for work associated with inspection.

    (1) The competent authority shall organise an adequate system of inspections of establishments or other measures of control appropriate to the type of establishment concerned.

    (2) The inspections or control measures referred to in paragraph (1) shall not be dependent upon the receipt of any report submitted by the operator and they shall be sufficient for a planned and systematic examination of the systems being employed at the establishment, whether of a technical, organisational or managerial nature, so as to ensure in particular -

    (a) that the operator can demonstrate that he has taken appropriate measures to prevent major accidents;

    (b) that the operator can demonstrate that he has provided appropriate means for limiting the consequences of major accidents both inside and outside the establishment;

    (c) that the information contained in any report sent to the competent authority by the operator of the establishment adequately reflects the conditions in the establishment; and

    (d) that information has been supplied to the public pursuant to regulation 14.

    (3) A system of inspection referred to in paragraph (1) shall meet the following conditions-

    (a) there shall be a programme of inspections for all establishments;

    (b) unless such a programme is based upon a systematic appraisal of major accident hazards of the particular establishment concerned, the programme shall, in the case of establishments to which regulations 7 to 14 apply, entail at least one on-site inspection made on behalf of the competent authority every 12 months;

    (c) following each inspection, a report shall be prepared by the competent authority; and

    (d) where necessary, matters shall be pursued with the operator within a reasonable period following the inspection.

  2. As specified by regulation 19(3), the CA will establish a programme of inspections for all establishments. This will comprise either a systematic appraisal of the major accident hazards of the particular establishment or, in the case of top tier sites, at least one on-site inspection every 12 months.

  3. In practice, the nature and extent of inspection undertaken by the CA will be dependent upon the nature of the hazards present, the complexity of the operation and the CA's assessment of the competence of the operator in ensuring that all the relevant duties under COMAH have been met. Charges will be made by the CA for inspections under regulation 19(1) at top-tier and lower-tier establishments, as defined in Schedule 1 Parts 2 and 3 to the regulations. A time-based actual charging scheme will reward operators who maintain higher standards of control of risk compared with those who operate at a lower standard which consequently involves the CA in more extensive work.

  4. Examples of the sorts of activities likely to be undertaken include:

    • examinations of the installation or parts of it, including making tests, taking samples, taking photographs and gathering other information;
    • examination of management systems, systems of work or work practices, including making enquiries with employees or other persons with relevant information relating to compliance with the regulations.
  5. Inspection will usually involve a visit to the establishment but may also include visits made by the CA to other locations such as the operator's head office or other workplaces, or to the workplaces of contractors and other persons engaged in work at the establishment.

  6. Inspection by the CA encompasses work aimed at checking compliance with the duties placed on an operator under COMAH, for example, whether:

    1. the operator has complied with general duty to take all measures necessary to prevent major accidents and limit their consequences under regulation 4;
    2. a major accident prevention policy has been prepared and implemented under regulation 5;
    3. the notifications required under regulation 6 have been made;
    4. a safety report has been submitted under regulation 7 and reviewed and revised in accordance with regulation 8;
    5. an on-site emergency plan has been prepared under regulation 9, reviewed and tested in accordance with regulation 11 and implemented as required in regulation 12;
    6. information has been provided to the public under regulation 14;
    7. information has been provided when requested by the CA under regulation 15; and
    8. information has been provided to other establishments under regulation 16(3).
  7. Inspections of establishments following the assessment of a safety report to determine if the measures taken are seriously deficient will be included under this provision. Charges under this provision will not include costs associated with prohibition under regulation 18 but see paragraph 31.

Practical Considerations

  1. The nature and frequency of inspections at top-tier establishments will be determined by an inspection plan drawn up following the examination of the safety report. The main aim of inspection will be to explore issues and areas of concern highlighted by that examination and to verify that control measures described in the report operate in accordance with the report.

  2. Existing top-tier sites may be subject to an inspection prior to the examination of a safety report submitted under regulation 7 particularly where:
    • an inspection is already planned under an existing inspection programme, or
    • an assessment of the major accident hazards indicates to the CA that an inspection for the purposes of regulation 19(2) is appropriate prior to the examination of the safety report.
  3. For all establishments, inspection activity will be proportionate to the risks and targeted to key areas of concern. A number of different techniques are deployed by the CA, for example, management systems audits, detailed examination of key control measures and spot checks on compliance and reactive visits following complaints or incidents. Wherever possible, inspection under COMAH will be integrated into inspection under other legislation but only those aspects directly related to enforcement of COMAH will be subject to a charge under this scheme.

  4. Top-tier establishments can expect a minimum of one inspection per year. For safety issues, this will include a more detailed audit at least once during the 5 year COMAH safety report cycle and for lower-tier establishments at least one inspection every 3 years. Examples of typical inspection costs are given in Annex C.

    Regulation 19 - Investigation of Major Accidents

    19(4) Where the competent authority or the Executive has been informed of a major accident at an establishment the competent authority shall -

    (a) obtain from the operator of the establishment -

    • information as respects the circumstances of the accident, the dangerous substances involved, the data available for assessing the effects of the accident on persons and the environment, the emergency measures taken and the steps envisaged to alleviate the medium and long term effects of the accident and to prevent any recurrence of it, and

    • such other information in the operator's possession as will enable the competent authority to notify the European Commission pursuant to regulation 21(1).

    (b) ensure that any urgent, medium and long-term measures which may prove necessary are taken;

    (c) make a full analysis of the technical, organisational and managerial aspects of the major accident and collect, by inspection, investigation or other appropriate means, the information necessary for that purpose;

    (d) take appropriate action to ensure that the operator takes any necessary remedial measures;

    (e) make recommendations on future preventive measures.

Application

  1. Investigation of the circumstances relating to a major accident are likely to involve consideration of whether an offence has been committed under these regulations for which the operator should be prosecuted. Because of the differences in the legal system in Scotland outlined in paragraph 35, the recovery of the costs of such investigations will not be charged in Scotland, and in England and Wales will only be charged up to the date on which a summons is obtained from the Magistrates' Court.

  2. An investigation of a major accident under regulation 19(4) may arise as a result of:

    • a notification made by the operator under regulation 15(3) - (notification of a major accident),
    • information gained during an inspection carried out under Regulation 19(1)-(3),
    • as a result of a notification made under The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995,
    • where information about a major accident is gained during the course of other work undertaken by HSE, EA or SEPA.
  3. Examples of the sorts of activities likely to be undertaken are:

    • examinations of the installation or parts of it or of the surrounding environment affected by the accident, including making tests, taking samples, taking photographs and gathering other information needed to confirm the nature or extent of the accident and to determine suitable remedial measures,
    • examination of management systems, systems of work or work practices, including making enquiries with employees or other persons affected by the accident or having relevant information relating to the accident.

Practical Considerations

  1. Investigative work will be reactive in nature and cannot be pre-planned. It is therefore difficult to give an estimation of a typical cost. However, experience has shown that investigation of major incidents utilises significant resources resulting in a serious impact upon the regulator's normal planned work.

    Regulation 16 - Provision of information to other establishments

    (1) The competent authority shall, using the information received from operators in notifications sent pursuant to regulation 6 and in safety reports, designate groups of establishments where the likelihood or consequences of a major accident may be increased because of the location and proximity of establishments in the group and the dangerous substances present there.

    (2) The competent authority shall notify each operator of an establishment in a group designated pursuant to paragraph (1) of the names and addresses of other establishments within the same group.

Practical Considerations

  1. The CA will charge operators for this work. For top-tier establishments this work will be undertaken upon receipt of a safety report and will be undertaken as part of the assessment of the report. For lower-tier sites this work will be done following notification under regulation 6 and will be charged for separately.

    Schedule 8 - Provision of information by the Competent Authority

    1. The competent authority shall maintain a register containing the information comprised in

    (a) notifications to the competent authority under regulation 6;

    (b) safety reports;

    (c) notifications under regulation 16(2);

    (d) communications under regulation 17(1)(a);

    • and such a register is in this Schedule referred to as "the register".

    2. The competent authority may remove from the register information relating to an establishment -

    (a) after the expiration of five years from the time the establishment ceases to be subject to these Regulations; or

    (b) if it is of the opinion that for the past five years the information has not related to current major accident hazards at the establishment.

    • 4. It shall be the duty of the competent authority -

    • (a) to secure that the register is available, at all reasonable times, for inspection by the public free of charge; and

    • (b) to afford to members of the public facilities for obtaining copies of entries, on payment of reasonable charges.

    • 5. The register may be kept in any form.

    11. Where information is provided to the competent authority pursuant to a requirement imposed by or under these Regulations then, if the person providing it applies to the competent authority to have the information excluded from the register on the ground that it is commercially or personally confidential (as regards himself or another person), the competent authority shall determine whether the information is or is not commercially or personally confidential.

    16. Information excluded from the register shall be treated as ceasing to be commercially confidential for the purposes of this Schedule at the expiry of the period of five years beginning with the date of the determination by virtue of which it was excluded; but the person who furnished it may apply to the competent authority for the information to remain excluded from the register on the ground that it is still commercially confidential and the competent authority shall determine whether or not that is the case.

    18. Information is, for the purposes of any determination under this Schedule commercially confidential, in relation to any individual or person, if its being contained in the register would prejudice to an unreasonable degree the commercial interests of that individual or person.

  2. The CA will charge operators for work undertaken under paragraphs 11 and 16 of this Schedule.

Regulation 20 - Enforcement

  1. The CA may take formal enforcement action i.e. serve an improvement or prohibition notice, to secure compliance with the Regulations and operators who contravene the Regulations may be prosecuted. Subject to the exclusions outlined in paragraphs 35 et seq below, the cost connected with enforcement activities will be recovered from operators.

    Regulation 18 - Prohibition of use

    (1) The competent authority shall prohibit the operation or bringing into operation of any establishment or installation or any part thereof where the measures taken by the operator for the prevention and mitigation of major accidents are seriously deficient.

    (2) The competent authority may prohibit the operation or bringing into operation of any establishment or installation or any part thereof if the operator has failed to submit any notification, safety report or other information required by or under these Regulations within the time so required.

    (3) Where the competent authority proposes to prohibit an operation or the bringing into operation of an establishment or installation or any part thereof pursuant to this regulation, it shall serve on the operator a notice giving reasons for the prohibition and specifying the date when it is to take effect and any such notice may be withdrawn in writing by the competent authority.

    (4) A notice served pursuant to paragraph (3) may specify measures which, if taken, would cause the competent authority to withdraw the notice.

    (5) Where a notice has been served on an operator in accordance with paragraph (3) the operator shall comply with it (including any such notice as modified on appeal).

    (6) Section 24 of the 1974 Act (appeal against improvement or prohibition notice) and in England and Wales, regulation 8(4)(b) of, and Schedule 4 to, the Employment Tribunals (Constitution and Rules of Procedure) Regulations 1993 and in Scotland, regulation 8(4)(b) of, and Schedule 4 to the Employment Tribunals (Constitution and Rules of Procedure) (Scotland) Regulations 1993 shall apply in relation to a notice served under this regulation as they apply in relation to a prohibition notice served under section 22 of that Act.

  2. The Competent Authority must prohibit the operation of an establishment or installation, or any part of it, if it identifies a serious deficiency and may prohibit the operation, or any part of it, if there has been a failure to submit the notification, safety report or other information required under COMAH. Prohibition action may arise as a result of:

    • the examination of the safety report under Regulation 17(1)(a),
    • information gained during an inspection carried out under Regulation 19(1)-(3),
    • during the investigation of a major accident under Regulation 19(4), or
    • during the course of other work undertaken by HSE, EA or SEPA.

    Practical Considerations

  3. Where a serious deficiency is suspected, the CA will not prohibit solely on the basis of documentary evidence in the safety report. The operator will be contacted and the situation assessed, usually by a site visit. The CA would always hold discussions with operators before taking prohibition action.

Deferral of Charges

  1. Charges for work associated with issuing improvement or prohibition notices and checking compliance will be deferred until the expiry of the period allowed for an appeal against the notice or until the resolution of any appeal, whichever is the later. Should an appeal succeed, costs for this work will not be charged.

Exclusions

  1. In England and Wales, costs associated with the prosecution of an offence or dealing with an appeal against a notice are recoverable via the courts or Employment Tribunal, and to ensure against double charging, the cost of this work is excluded from these provisions.

  2. In Scotland, because of differences in the legal system, it is not the practice to seek to recover any prosecution costs and these provisions have been drawn up in accordance with that practice.

    22.(6) Any fee payable under this regulation shall not include costs connected with-

    1. in England and Wales, any criminal investigation or prosecution incurred (in either case) from the date any summons is obtained from a Magistrates' Court;
    2. in Scotland, any investigation carried out with a view to it being ascertained whether the operator should be prosecuted for an offence of contravening these Regulations, or where such a prosecution has been commenced against the operator, any costs connected with that prosecution; and
    3. any appeal pursuant to section 24 of the 1974 Act incurred from the date that a notice of appeal has been received by the Secretary of Tribunals pursuant to, in England and Wales, the Employment Tribunals (Constitution and Rules of Procedure) Regulations 1993, and in Scotland, the Employment Tribunals (Constitution and Rules of Procedure) (Scotland) Regulations 1993.

England and Wales

  1. In practice, this means that, in England and Wales, investigation and prosecution costs will not be charged to the operator from the date on which a summons is obtained from a Magistrates' Court.

Scotland

  1. In Scotland, the costs associated with any investigation to decide whether an operator should be prosecuted, prosecution costs and any subsequent investigations which are conducted once the prosecution has commenced will be excluded. Where such investigations concurrently provide evidence to support prohibition under regulation 18 then those costs will also be excluded from any charge made under prohibition.

Appeals Against Notices

  1. For appeals, the cut-off point for charges for enforcement under these provisions is set from the date on which a notice of appeal is received by an Employment Tribunal.

2010-06-07