FOD / HID CI Demarcation

OC18/11

Summary

This OC replaces OC 18/9. It defines the respective responsibilities of FOD and HID Chemical Industries Division (CI) and clarifies areas of overlapping responsibility. CI is a division of HID dealing with onshore chemical manufacture and storage industries. Para 57 details other demarcation papers such as gas safety, jetties, boreholes, harbours, biological agents, GMOs, OSD, nuclear sites, surface treatment, MoD, explosives and local authorities.

Introduction

1  Although FOD and HID CI allocations are primarily determined through the Standard Industrial Classification 2003 (SICR 2003), for certain industries and activities further explanation is required.

2  In this OC HID CI will be referred to as CI (Chemical Industries); this does not extend to Specialised Industries Division (SI).

3  Where the term "sites" is used, it is intended to include installations and establishments where appropriate.

4  Please note: In 2008 a major revision of UK SIC codes will come into effect, which will be called SIC 2007. However, HSE will retain use of SICR 2003 until further notice.

Premises inspected by CI

5  It has been agreed that the premises in Table 1 will be inspected by CI.

Table 1- Premises inspected by CI

Premises inspected by FOD

6  It has been agreed that the premises in Table 2 do not fall under CIs jurisdiction and will be inspected by FOD.

Table 2 – Premises inspected by FOD

7  All locations which are considered sub-COMAH or non-COMAH (below sub-COMAH thresholds) and which fall under CIs SIC allocations will remain inspected by CI. Sites which have fallen below the COMAH threshold and have no further major accident hazard potential and which fall outside CIs SIC allocations will be inspected by FOD.

COMAH enclave sites

8  A COMAH Enclave site is one primarily inspected, in this case, by FOD but where CI inspects a particular part of the site or process because COMAH applies. Examples of enclave are detailed in Table 3. 

9  CI will also be involved, primarily in respect of its land use planning duties, with sites subject to Notification of Installations Handling Hazardous Substances (Amendment) Regulations 2002 (NIHHS); and Planning (Hazardous Substances) Regulations 1992 (P(HS)R) as amended by The Planning (Control of Major-Accident Hazards) Regulations 1999 (and its equivalent in Scotland).

10  Sites or parts of sites within scope of COMAH, NIHHS and/or P(HS) Regulations are referred to as hazardous installations or major hazards sites. Enclave sites must be identified so CI inspectors can discharge their duties. This is particularly important because of the need for cost recovery on COMAH issues.

Responsibilities on enclave sites

11  Demarcation and cost recovery on enclave sites is dealt with by the fourth edition of Cost Recovery for COMAH Activities – A Guide.  

OC 124/11 - Health and Safety (Enforcing Authority) Regulations 1998: A-Z Guide to Allocation), FOD will retain overall responsibility for the location, or in the case of such a multi-site company, for the activities of the company as a whole. However, there may be activities on those locations, which CI will need to inspect ie the COMAH enclave. These may be restricted to a defined unit, eg a compressed gas storage compound, but in other cases, might cover large parts of the location (including processing areas) eg at a whisky distillery with COMAH quantities of potable alcohol, the bulk storage, warehouse and bottling hall would fall to CI.

13  Occasionally activities outside the hazardous site are less significant or low risk. In these instances, local agreement should be reached to transfer the whole of the location to CI. Each case should be judged on its merits.

Table 3 - Examples of enclave sites

14  For further information on COMAH quantities see COMAH Regulations Schedule 1 .

15  Effective liaison is vital to ensure that both CI and FOD fulfil their responsibilities efficiently: particularly when enforcement action is under consideration. Normally, agreements about demarcation should be at band 2/3 level: band 1s should be consulted when agreement is not achieved.

Inspection of enclave sites

16  CI will produce Intervention Plans for all COMAH sites and enclave sites, the latter of which will be copied to FOD for information. However, all contacts made by FOD and CI with the company will need to be co-ordinated through the Lead Directorate (see para 12). CI inspectors should seek out available information about enclave sites before carrying out interventions, eg from COIN or FOD colleagues. 
17  Joint visiting between FOD and CI should be undertaken where appropriate, although it is accepted that this may not always be practicable. The aim is to avoid duplication of effort, too many visits and mixed messages.

18   Where FOD inspectors receive requests for COMAH advice or information, the matter should be referred to the appropriate CI inspector.

19  If FOD inspectors encounter sites and/or processes which may be subject to COMAH, but about which there is no information, they should not undertake any inspection, but discuss with the local CI inspector to agree inspection arrangements.

Examples of concerns to flag up to CI at enclaves

20  If FOD inspectors become aware of issues affecting COMAH activities they should be flagged up to the HID inspector such as:

1. Bunds providing containment for flammable or toxic substances (ie containing    
   the COMAH substances, such as TDI) if:
   1. The bund is cracked or otherwise damaged
   2. The bund contains water and/or bunded vessel substance
   3. The bund contains combustible material eg wooden pallets or vegetation
2. Storage tanks containing COMAH substances
   1. The tanks show signs of damage (eg indentations)
   2. The tanks are rusty and/or have the appearance of product escape
   3. Pipework leading to and from the storage tanks looks corroded and/or damaged and/or very poorly supported and/or product appears to have escaped
3. Road Tanker deliveries
   1. The driver is smoking or using their mobile phone (delivery of flammables)
   2. The vehicle isn't earthed when delivering flammables
   3. The company appear to exercise little control over the delivery (ie road tanker driver "does their own thing")
4. Management Competence
   1. Management competence gives cause for concern or is indifferent to health and safety
   2. Management is unaware that they are a COMAH site (and what this means)
5. Incidents on site
   1. Fires or explosions on site
   2. Losses of containment

FOD sites adjacent to COMAH sites

21  Where an incident at a FOD site could initiate a major accident at a neighbouring COMAH site, FOD and CI inspectors should work together and share information to encourage operators to reduce risks to ALARP. Changes in occupation at sites adjacent to COMAH sites should also be flagged up where this may affect or by affected by a COMAH site.

22  If FOD inspectors become aware of issues, which may affect COMAH activities, on sites adjacent to COMAH sites, these should be flagged up to the CI inspector, such as:

1. Combustible material stored adjacent to the boundary/fence of the COMAH site
2. A fire or explosion at the FOD inspected site with the potential to impact the COMAH site.

Inspection of sub-COMAH sites

23  Sub-COMAH sites are discussed here in order to alert FOD to CIs approach to these sites and to help identify them on COIN. Sub-COMAH sites may be under the jurisdiction of CI or FOD according to the demarcations laid out previously.

24  Sub-COMAH sites are defined as:

1. Sites falling below COMAH thresholds quantities with;
2. Agreed inventories of relevant dangerous substances as laid out in Delivery Guide for sub-COMAH and; 
3. Where the worst foreseeable event would be comparable to that possible at a COMAH site.

25  COMAH does not apply to sub-COMAH sites; see the Delivery Guide for sub-COMAH.

Table 6 - Examples of sub-COMAH demarcation

Please note this table does not take account of the COMAH aggregation rules.

26  Please note that all COMAH or sub-COMAH premises should be recorded as such using the drop down DUTY tab on the site details page on COIN.

Special cases

Research projects

27  FOD and CI may commission research on a variety of issues. Where that research involves visiting sites from the other directorate, the research contractor should be asked to contact the FOD or CI team dealing with the site to ensure that the visits will not cause difficulties or embarrassment. Where few sites are involved contact can be direct to the site inspector however, where many sites are involved contact should be made at a higher level preferably through HQ Band 2.

Research sites

28  FOD has the lead responsibility for typical 'bench and fume cupboard' laboratories, animal houses and field stations. Any connection between the research site and its parent company does not override these arrangements, eg a stand-alone facility associated with a major pharmaceutical company.

29  CI should assume the lead responsibility at research sites if a pilot chemical production plant is in permanent use. If the permanent research facility is not the major activity an enclave should be set up.

30  Where a CI site includes laboratories or other research sites, the whole site including those facilities should be inspected by CI. Consideration should be given to joint inspection with FOD and/or SI (as per OC349/10) where animal houses or pathology laboratories are present.

Carriage of dangerous goods

31  CI has primary responsibility for the administration of legislation relating to the carriage of dangerous goods (CDG) by road. However, both CI and FOD are responsible for making enquiries and responding to queries about carriage matters, when visiting hauliers' premises and companies registered with them. In some cases, the premises are LA enforced (eg haulage or distribution companies) and whilst LAs have no role in carriage matters they should be informed that matters relating to carriage are being followed up at the premises.

32  Police and VOSA officers are also empowered to enforce the CGD Regulations when appointed to do so. The majority of on the road inspection is now carried out by those officers. The extent of what they do is covered by a Memorandum of Understanding. Where offences appear to have been committed by, or occasioned by, dutyholders other than the carrier, information may be sent to FOD or CI for follow up.

33  CI will be responsible for liaison with the police on the carriage of dangerous goods by road and are usually the initial HSE recipient of that information. Either CI will follow up directly, keeping the relevant CI or FOD operational group informed, or pass the information on for follow up locally.

34  CI inspectors may also carry out roadside checks. Details of procedures to follow may be found in the CDG Manual - Operational Strategy and Enforcement.

35  The CDG Manual (issued by HID) contains information about the legal and practical issues associated with this topic.

Enforcement of supply legislation

36  FOD and CI are responsible for supply work concerning the manufacture and supply of products and substances, and for enforcement during any inspection or investigation as laid out in the Product Safety Manual. 

37  Where substances are manufactured for a FOD sector, or have reached a point in the supply chain where they are targeted for a FOD sector, the lead will be FOD. Compliance with the Product Safety Procedures will ensure consistency where FOD and CI inspectors are dealing with parts of the same supply chain, eg wholesaler and manufacturer. These principles also apply to the enforcement of HSWA s.6 in premises where the Act is normally enforced by local authorities (LAs). CI inspectors should liaise with FOD inspectors before discussing the supply of pesticides with chemical manufacturers.

Docks, harbours and jetties

38  CI deals with specialist docks/jetties which are subject to the NIHHS and COMAH Regulations. However, jetties in general dock areas handling flammable or toxic substances in bulk, but not dedicated to serving NIHHS or COMAH sites, are FODs responsibility. For further information see SPC/Permissioning/03 on the application of COMAH to jetties which are not part of the establishment.

39  FOD deals with the handling of dangerous chemicals in packages and containers in dock areas in major hazard quantities but where major hazard legislation does not apply, because the presence of the substances is incidental to transportation. FOD should consult CI where necessary about the assessment of hazards and risks.

40  FOD enforces the Dangerous Substances in Harbour Areas Regulations 1987 in general and mixed docks. However, CI has a particular interest in Parts V (Liquid Dangerous Substances in Bulk), VII (Emergency Arrangements) and IX (Explosives) and CI should be consulted about, and where appropriate involved in, any potential FOD enforcement action relating to these parts.

41  The long-standing demarcation arrangements between FOD and SI2 (Explosives) at docks and jetties will continue as set out in OC 783/3 Dangerous Substances in Harbour Areas Regulations 1987 (DSHAR).

Construction work on chemical sites

42  As a general principle, FOD has responsibility for the activities covered by SIC45** although CI inspectors will apply the same approach as FOD inspectors in dealing with small-scale construction work encountered during the course of routine visits. Green field sites will remain with FOD, although CI may also have a role in respect of design and post-build operational issues. FOD will be responsible for demolition activities. Liaison and discussion between divisions/directorates should take place where it is judged to be helpful and appropriate.

43  CI is responsible for routine maintenance activities on fixed plant carried out on CI sites; except when this is done as part of other construction work, or it involves substantial dismantling, or alteration of fixed plant which is large enough to be a structure in its own right, for example structural alteration of a large silo; complex chemical plant; power station generator or large boiler. Structures supporting fixed plant should be considered part of the fixed plant this includes: maintenance work and services attached to fixed plant. Work on these items will fall outside the definition of construction and so will not attract CDM. Consequently, the erection of scaffolds associated with the maintenance of fixed plant does not attract CDM as they are not provided during construction work.

44  Shutdown maintenance or turnaround normally involves more extensive construction activities. Although CI will take the lead, FOD is also likely to be involved. Such matters may be best handled as a joint CI/FOD project. When an F10 is received, the relevant FOD and CI PIs should liaise and decide whether a visit or other action is appropriate and if so, who should carry it out. FOD should provide advice or assistance to CI where necessary.

45  The installation, commissioning, de-commissioning or dismantling etc. of fixed plant is construction work and will attract CDM which FOD will inspect.

46  FOD should recover costs from the operators of COMAH sites for inspecting construction work where the inspection is for the purpose of preventing a major accident ie work on or very close to live plant, such as lifting over pipes etc. FOD should liaise with CI in these circumstances.

Ionising radiation work at CI sites

47  CI will inspect common applications of ionising radiations on their sites, eg gauges.

48  FOD will inspect all forms of radiography by contractors, ie site radiography or fixed enclosure work on CI sites. FOD has the primary responsibility for dealing with the contractors involved in this work through its site radiography co-ordinating inspectors and can ensure consistency and targeting in regulating such activities.

49  CI inspectors should advise FOD site radiography co-ordinating inspectors where contractors use enclosures on CI sites for which notification under the Ionising Radiations Regulations 1999 (IRR99) is not required. CI inspectors coming across site radiography or receiving notifications for this work should pass on the information to the FOD co-ordinating inspector.

Asbestos work at CI sites

50  Asbestos stripping by licensed contractors at CI sites should be dealt with by FOD. If a notification is received or if asbestos stripping work comes to the attention of CI, it should be referred to the FOD asbestos licensing PI. There should be local liaison on any programme of inspection targeted at CI sites.

The work of the emergency services at CI sites

51  Incidents at chemical sites can require the intervention of one or more of the emergency services. CI is responsible for checking that a site operator has emergency arrangements in place. The preparation of emergency plans will involve the exchange of information between operator and emergency services and, in cases where an off-site plan is required, involve the LA. (Emergency arrangements are also required by other legislation, eg the Management of Health, Safety and Welfare Regulations 1999, Regulation 9).

52  Generally, FOD will deal with the activities of emergency services responding to emergencies, including the investigation of any accidents involving emergency service personnel. Where an Operator has failed in their duties towards emergency service personnel, enforcement shall be undertaken by FOD in liaison with CI.

53  The arrangements for ensuring the health and safety of fire-fighters will remain with FOD, as they are the lead for the Home Office on this matter. Matters relating to the efficiency or effectiveness of the emergency service are an issue for the Home Office.

54  Effective liaison is necessary between CI and FOD, particularly during the investigation of accidents and when shortcomings are identified during the testing of emergency plans with implications for the emergency services' health and safety.

55  CI will retain responsibility for 'private fire services' which are based at chemical sites and contracted by the LA to attend off-site emergencies. To ensure consistency, advice on health and safety procedures and training can be provided by Public Services Sector (Defence Fire, Police & Prisons Unit) Basingstoke Office.

Local liaison about allocations

56  Many of the allocations described will require local discussions. Any issues which cannot be agreed locally should be referred to FOD and CI operations managers. They will refer any issues they cannot resolve to their respective HQs for a decision.

Further information on specific demarcations

57  This OC only covers the demarcation agreements between FOD and CI for further information on other demarcation agreements within HSE please see the links below. Please note some information has been removed from the current OC because it is present in the other demarcation papers below.

1. OC440/28: The Gas Safety (Installation and Use) Regulations 1998 and the Gas Safety (Management) Regulations 1996 and the Pipelines Safety Regulations 1996. Liaison between FOD and HID on gas safety matters
2. OC415/9: the Boreholes Sites and Operations Regulations 1995
3. SPC/PERM/03: Application of COMAH to Jetties which are not part of the "Establishment"
4. OC783/3: Dangerous Substances in Harbour Areas Regulations 1987 (DSHAR)
5. OC349/10: Primary Inspection Responsibilities and the Use of Specialist Support for Work with Biological Agents
6. OC349/6: the Genetically Modified Organisms (contained use) Regulations 2000 and Other Regulations relating to the contained use of GMOs
7. OC18/7(rev2): Demarcation Between FOD and OSD for Inspection of Stacked Offshore Installations
8. OC 655/7: COMAH Application at Surface Treatment Sites
9. Health and Safety (Enforcing Authority) Regulations 1998. A-Z Guide to allocation

Cancellation of instructions

OC 18/9 – Cancel and destroy