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Offshore Safety Directive consultations "maintain as much of existing regimes as possible", expert says

Out-Law News | 31 Jul 2014 | 12:03 pm | 2 min. read

UK government consultations on how best to implement the requirements of the EU's Offshore Safety Directive make it clear that the goal is to maintain as much of the existing offshore safety and environmental regimes as possible, an expert has said.

However, oil and gas law expert William Park of Pinsent Masons, the law firm behind Out-Law.com, said that it would "come as some relief" to the industry that the UK's proposed approach to the new regime was "now detailed in black and white".

"Since the European Commission first proposed changes to the offshore oil and gas safety regime in October 2011, the HSE, DECC, industry and unions have maintained that the legislative framework for offshore health and safety was largely fit for purpose," he said. "That is reflected in the consultation document which makes it clear that the HSE's goal is to maintain as much of the existing regimes as is possible and only where it is considered absolutely necessary are they proposing that existing legislation be amended or new legislation introduced."

"It is not anticipated that the changes will have a significant impact on the industry and there is some force in the HSE's view that an already world-class safety regime will be further improved by the introduction of a competent authority and the integration of safety management of major accident and environmental risks," he said.

The EU's Offshore Safety Directive establishes minimum conditions for safe offshore exploration and exploitation of oil and gas, and provides for improved response mechanisms in the event of a major accident. It also intends to reduce the impact of an accident on the environment by requiring companies to provide evidence that "adequate provision" has been made to cover their potential liabilities as a precondition to having a licence for an offshore installation granted.

The European Commission first proposed the creation of a unified EU offshore safety regime following the Deepwater Horizon accident in the Gulf of Mexico in 2010. However, the UK government and oil and gas industry lobbied against its original proposals to legislate using a directly-applicable regulation, prompting the creation of a directive setting minimum requirements which member states will be able to decide how best to implement for themselves. Control of offshore installations varies widely across the EU, with almost half of the nearly 1,000 located in UK-controlled waters.

The UK's approach to implementation is set out in two consultations, the most significant of which is being conducted by the Health and Safety Executive (HSE). This consultation includes proposals on amendments to existing legislation, new requirements, new administrative procedures and the establishment of an offshore competent authority as required by the directive. It also seeks views on HSE's proposals to update onshore oil and gas health and safety legislation to take account of emerging energy technologies and the review of two of HSE's Approved Code of Practice affecting offshore operations.

Park said that the UK's proposed compliance arrangements on the competent authority point were "perhaps the most interesting" part of the consultation document. Under the Offshore Safety Directive, member states must establish such a body to oversee compliance by 15 July 2015, he said.

"Responsibility for the enforcement of health and safety offshore currently lies with the HSE and DECC has responsibility for enforcing environmental legislation; with both working under a 'memorandum of understanding'," he said.

"The current arrangements will not meet the requirements of the directive and it is interesting that both regulators consider the best way to meet those requirements is for them to work more closely under an enhanced memorandum of understanding rather than create a new 'stand alone' competent authority. In view of the costs and problems that would likely be associated with the creation of a new authority, one can understand the HSE's position," he said.

A second consultation, published by the Department for Environment, Food and Rural Affairs (Defra), covers the implementation of provisions extending the offshore scope of the Environmental Liability Directive to cover water damage in marine waters that fall within the scope of the Marine Strategy Framework Directive. Once in force, this would require polluters to pay and to make good the damage if any incident occurs in offshore waters out to the limit of UK jurisdiction. Similar consultations are planned in the devolved administrations.