Hazardous substances rules need tightening, says DoE report

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.

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.

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.