The Nimrod Review - Official Documents

The Nimrod Review
9.11
166
implemented European Council Directive 82/501/EEC 17 “on the major-accident hazards of certain industrial
activities”, issued in 1982 (known as the ‘Seveso Directive’). The CIMAH Regulations were later superseded
by the Control of Major Accident Hazards Regulations (COMAH Regulations), which came into force on 1
April 1999 by way of implementation of European Council Directive 87/216/EEC, 18 which amended the Seveso
Directive (known as the ‘Seveso II Directive’). The COMAH Regulations (as amended) apply mainly to the chemical
industry and impose upon operators a duty to take all measures necessary to prevent major accidents and limit
their consequences to persons and the environment (s.4) and to prepare, and keep under review, a “safety
report” (s. 5).
At the time that they were in force, the CIMAH Regulations applied to on-shore major hazard installations and,
pursuant to Regulation 7, required the operators of such installations to provide the HSE with a written report
on the safety of the installation. Lord Cullen in the Piper Alpha report explained that this written report was
commonly called the ‘Safety Case’. Its contents were specified in Schedule 6 of the CIMAH Regulations. The
four main headings related to information on: (1) every dangerous substance involved in the activity; (2) on the
installation itself; (3) on the management system; and (4) on the potential major accidents.
Lord Cullen’s Approach to Safety Cases
9.12
9.13
9.14
Having reviewed the CIMAH Regulations, Lord Cullen explained that the Safety Case was, first and foremost,
“the means by which an operator demonstrated to itself the safety of its activities”. 19 Its central feature was
that of ensuring that every company produced an FSA, in order to assure itself that its operations were safe
and that it gained the benefit of an FSA. Whilst the Safety Case had a further role in demonstrating this to
the regulatory body, this latter function was a matter of only secondary importance, 20 albeit that it met the
legitimate expectation referred to above.
Lord Cullen expressed the view that the Safety Case should normally be prepared primarily by the company
personnel. 21 He accepted the force of the comments in the guidance notes to the CIMAH Regulations22 in
relation to the level of expertise required that “A partial answer is to suggest that if a manufacturer was unable
to meet most if not all of the aims of the Safety Case set out in para 106 by using his own staff, doubts would
arise about his competence to manage a major hazard activity …”. He further considered the involvement
of the company’s own personnel to be the best way to obtain the full benefits of the Safety Case within the
company. In particular, it was desirable that the operator should deal itself with the QRA aspects of the Safety
Case rather than contract them out. Familiarity with the system was essential for good QRA and, moreover, the
use of company personnel would allow expertise to be built up in-house. 23 It is appropriate to note here that,
in the event, one of the major reasons for the failure of the Nimrod Safety Case (NSC) was the lack of relevant
operator input.
Lord Cullen also considered that the use of the company’s own personnel would help to promote an effective
dialogue with the regulators. He emphasised that the Safety Case should be seen not as a one-off exercise, but
as part of a continuing dialogue between the operator and the regulatory body. 24 He further recognised that
his proposal to assign a central role in a safety regime to FSA in general, and the Safety Case in particular, had
obvious implications for the regulatory body. This was because the regime that he envisaged was one in which
the regulator’s focus would move to an audit of the operator’s systems, with the Safety Case providing the
starting point for such an audit. The regulatory body would therefore need to be not only able to evaluate the
Safety Case, but also to be at ease with the whole approach. 25
17 OJ No. L230, 5.8.82, p. l.
18 OJ No. L85, 28.3.87, p. 36.
19 Cullen, paragraph 17.11.
20 Cullen, paragraphs 17.34 – 17.35.
21 Cullen, paragraph 17.40.
22 At paragraph 114.
23 Cullen, paragraph 17.40. On the other hand, Lord Cullen did recognise that consultants have a role in bringing an independent perspective and
assisting with novel and specialist techniques.
24 Cullen, paragraph 17.46.
25 Cullen, paragraph 17.70.