Hazardous substances rules need tightening, says DoE report

A system of hazardous substances consents (HSCs) introduced in 1992 has improved planning control over hazardous installations, according to a report for the Department of the Environment (DoE).1 However, the report also reveals serious flaws in the implementation and enforcement of the controls.

HSCs were introduced by the Planning (Hazardous Substances) Act 1990, which requires site operators to obtain a consent for any use or storage of one of 71 specified hazardous substances in quantities above certain thresholds (ENDS Report 206, pp 28-30 ). They were intended to close loopholes in planning controls over the introduction or intensification of hazards from the storage of hazardous substances, and are implemented by "hazardous substances authorities" (HSAs) - in most cases, local planning authorities.

The DoE commissioned Staffordshire University to assess the implementation of the rules. The research was based on case studies in ten diverse HSAs and a postal survey of 291 HSAs which generated a response rate of 55%.

Most HSAs and industry bodies accepted the need for the legislation, and the DoE commented that the rules "appear to be posing few additional burdens on industry." Calls from bodies such as the Independent Tank Storage Association for the legislation to be repealed have, says the report, been "strongly, but not widely, expressed."

The Health and Safety Executive (HSE) and HSAs with more experience with hazardous installations believe that HSCs have given improved control of storage locations on site and improved the accuracy of lists of hazardous sites. However, the survey reveals widespread concern that lack of expertise of many planners has led to poor implementation in many areas, together with confusion over the HSE's role.

  • Deemed consents: Sites which had stored hazardous substances over the relevant threshold in the 12 months before the regulations came into force had to apply to the HSA for a "deemed consent" by 30 November 1992. The report says that this arrangement has "left a complex and unintended legacy", and the errors stand to be repeated if the list of controlled substances is amended.

    Some 1,500-2,000 sites were initially expected to apply for deemed consents, which were granted automatically provided the claim was valid. However, only 873 applications were received in England in the first six months of the legislation.

    The report says that this discrepancy suggests that "there are many sites operating in contravention of the HSC legislation against which enforcement action needs to be taken." It calls for improved information flows between the HSE and HSAs, and guidance from the DoE on whether "missing" operators should now be treated as new installations - with the risk that a consent might be refused.

    Furthermore, of 73 applications studied, 20 contained "obvious errors". The report says that HSA's failure to pick up on invalid claims means that the legal status of such consents is in some doubt, and needs clarification from the DoE.

    The most common error - in some cases "done quite deliberately" - concerned the calculation of quantities of hazardous substances on-site. To allow for "controlled expansion" at existing sites, operators were permitted to calculate the quantity by, in most cases, doubling the amount notified to the HSE under other legislation. However, two-thirds of industry applicants surveyed had no intention of ever taking up the full consent they had obtained.

    Some planners fear that the use of a "multiplier" has given them no sanction over what may be a significantly increased hazard. However, the most acute problems have been caused where the increased quantities mean that the HSE must extend the area around existing sites within which development proposals must be notified to it. The report points to "considerable confusion and uncertainty" about the effect on the HSE's policies on determining such consultation distances and risk assessments.

    Overall, the report says, the multiplication provision "has left a messy and unsatisfactory legacy", and urges the DoE to consider revising the legislation to reduce the level of the multiplier, or to make it optional.

  • Express consents: New use or storage of hazardous substances requires the operator to apply for an express consent. Only 90 applications were received in England and Wales in the first ten months of the system, and the report says that procedures have operated relatively smoothly.

    Deemed consents contain standard conditions controlling the manner and location of storage. However, no standard conditions are contained in express consents. The report found that over half of early express consents had been granted unconditionally. This creates a "gap in the legislation" where there is nothing to stop significant alterations to the method of on-site storage. The report says that legislative action may be needed to correct the situation.

    Even where conditions have been imposed, HSAs have had difficulty in deciding what may be appropriate. Furthermore, at present the HSE is the only consultee which can require conditions to be set. The report recommends an amendment to the regulations to allow other consultees, such as the National Rivers Authority and Fire Service, to suggest conditions provided these do not conflict with the HSE's requirements.

  • Enforcement: HSAs have a range of enforcement options, including contravention notices, injunctions and prosecutions, at their disposal. However, the researchers encountered no case where any of these powers had been used. Furthermore, activity by HSAs to detect contraventions was at a low level. In only one of the ten case studies had the local authority visited sites for which deemed consents had been claimed.

    Many HSAs argue that they lack expertise and resources to provide effective enforcement, and appear to be expecting the HSE to point out breaches of the legislation. However, the HSE has made it clear that this is outside its remit. The report says that more guidance should be provided to HSAs and that their enforcement activities could be tied more closely to those of the HSE.

    The DoE had no immediate response to the report's recommendations. Environment Minister commented that it "will need to look at these very carefully to see how we can improve matters," suggesting a prolonged period of deliberation.

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