Recent developments in health and safety law and practice will impact on all developers, contractors, suppliers and consultants involved in offshore renewables projects. This article highlights some of the key developments and issues for the sector.
One of the main challenges for anyone working in this sector is the regulatory jigsaw. Whilst health and safety law in the UK is set out primarily in the Health & Safety at Work, etc. Act 1974, there is a swathe of regulations that have to be complied with, such as the Construction (Design and Management) Regulations 2007 and regulations dealing with specific risks such as working with electricity and working at height.
The HSE has identified both wind energy and marine renewable energy as sectors for "horizon" scanning and active monitoring. According to the HSE "Horizon scanning is the process by which HSE ensures that it is aware of developments, trends and changes in the medium to long-term future that could have an impact on its ability to act as an effective and efficient promoter and regulator of health and safety in Britain."
The HSE has identified several risks relating to the offshore wind industry, such as:
- "Normal construction risks" e.g. slips, trips and falls.
- Wind energy risks such as electrocution and fire exacerbated by windy conditions and lightening, blade failures and turbine collapses.
- Offshore risks such as large waves, diving activities and working on boats/ships.
Health & Safety at Work Act 1974 (Application Outside Great Britain) (Variation) Order 2009
Generally the HSE’s view is that there is no need for specific regulation in the offshore renewable sector because the existing regulatory framework is adequate. However, the HSE has identified two gaps in the current legislative arrangements, in relation to:
- energy structures (such as wind turbines) beyond the territorial sea (i.e. more than 12 nautical miles measured from baselines along the coast); and
- offshore installations beyond the territorial seas where, because of a change of use, the 1974 Act will cease to apply although work activities will continue to be carried out.
The Health & Safety at Work Act 1974 (Application Outside Great Britain) (Variation) Order 2009, which will apply from 5 August 2009, will ensure that the 1974 Act will be extended to cover the following activities within a renewable energy zone (i.e. areas outside Great Britain's territorial sea which can be exploited for the production of energy from water or wind):
- the construction, reconstruction, alteration, repair, maintenance, cleaning, use, operation, demolition and dismantling of any energy structure or related structure, or any preparation for any such activity;
- the transfer of people or goods between a vessel or aircraft and an energy structure or related structure;
- the loading, unloading, fuelling or provisioning of a vessel;
- the operation of a cable for transmitting electricity from an energy structure or related structure to Great Britain; and
- a diving project associated with any of the above works:
The HSE intends to put in place a new Application Outside Great Britain Order by 5 April 2011, which will revoke the existing regulatory framework extending the 1974 Act beyond the territorial limits (including the 2009 Order). The HSE plans to carry out a formal public consultation on any replacement Order to make sure that it fully addresses emerging offshore energy developments.
Whilst the 2009 Order will increase the regulation of renewable projects offshore, it will provide clarity and consistency for projects where, previously, different legal regimes applied to different sections of one project, depending on whether the relevant part of the project was within or outside the 12 mile limit.
Increased focus from the HSE
In addition to legislative changes, the HSE will look to engage with all stakeholders to develop sector specific guidelines and procedures. For example, the HSE does so in conjunction with the BWEA (e.g. the revised Guidelines for Health & Safety in the Wind Energy Industry and for Health and Safety in the Marine Energy Industry both published in October 2008). The HSE has indicated it may also publish its own guidance and publish it on its website. Of course, the HSE will lean heavily on the experience of offshore oil and gas installations.
However, the HSE faces a number of challenges such as:
- One of the oft-heard criticisms of health and safety regulation is the focus on paperwork rather than effective systems. The HSE has sought to move away from paper based compliance and generic guidelines but there is still a lot of work to do;
- Resources: The number of inspectors and personnel devoted to enforcement has been an issue for the HSE for years. The offshore sector is expected to grow significantly and will need policed, often in remote and challenging places.
Backdrop of increasing focus and potential liability
Whilst not sector specific, recent developments in the regulatory framework of health and safety have moved health and safety up the agenda in UK boardrooms, e.g.:
- The Health and Safety (Offences) Act 2008, which came into force at the end of January 2009, is a significant measure, extending the availability of imprisonment as a penalty and increasing the upper limit of fines for breaches of health and safety law.
- The Corporate Manslaughter and Corporate Homicide Act 2007 which introduced a new offence for prosecuting companies and other organisations where there has been a gross failing, throughout the organisation, in the management of health and safety with fatal consequences. The first prosecution under this Act went to court earlier this year.
With the level of publicity given to renewables projects, health and safety incidents may attract even more media interest than in other sectors and clients will be keen to avoid any adverse publicity, heavy fines and/or imprisonment (albeit imprisonment is imposed very rarely). Indeed, the HSE is considering putting more resource into the small/micro end of wind generation recognising that accidents in this sector could cause reputational damage for the whole wind sector.
Other issues for clients and customers
Most compliance is focused on the customer/client but in practice compliance is managed and delivered by the contractors, suppliers and consultants. If the health and safety plan/policy for a project is dictated simply by the applicable regulation then the risk is a patchwork approach – different regulatory regimes applicable under different contracts or for different work types and a lack of clarity and consistency. This increases the risk of bureaucracy and inadequate health and safety planning. Clients will therefore wish to seek to ensure compliance/proper arrangements are in place through taking a holistic approach with clear policies and health and safety management systems and a robust contractual structure that clarify roles and responsibilities within a project.
Health and safety is not just about the construction phase – the client must be alive to health and safety issues for the whole operative life of the project as well as its other duties and responsibilities owed to employees under employment law and to visitors under the laws relating to occupiers of premises.
For further information, please contact Lynne Scott, Partner, London, on 0207 429 4956 or Andrew Philip, Associate, Edinburgh/Glasgow on 0131 473 5711.