A recent DECC consultation proposes amendments to the Offshore Chemicals Regulations 2002 (OCR) and the Offshore Petroleum Activities (Oil Pollution Prevention and Control) Regulations 2005 (OPA) so that the Secretary of State may take action against operators of offshore installations for the unintentional release of chemicals. Comments on the consultation are invited by 16 October 2009.
Background
The OCR, which came into force on 15 May 2002, implemented the OSPAR Decision 2000/2 on a Harmonised Mandatory Control System for the use and reduction of the Discharge of Offshore Chemicals. The Decision requires pre-screening, ranking and hazard assessment, risk management of chemicals and substitution of certain chemicals by less hazardous alternatives. The OCR attempts to achieve this through the implementation of a permit system.
The OPA came into force on 3 August 2005 and was designed to introduce a more robust and effective approach to the management of oil discharges. It updated the definition of oil, introduced a permit system for oil discharges and strengthened powers of inspection and investigation in respect of oil discharges.
Purpose of the Amendments
The OCR does not contain provisions allowing enforcement action to be taken against operators of offshore installations for unintentional release of chemicals. The proposed amendments make unintentional releases of chemicals that arise through negligence and non-operational discharges unlawful.
The Proposed Amendments
A number of definitions in the OCR would be changed and a new definition of "release" is inserted, to differentiate the provisions from intentional discharge. The amendments make it unlawful to release an offshore chemical. This includes circumstances where a person allows the release to continue, even if they were not responsible for the initial release.
The amendments take into account that another party and not necessarily the operator may be a permit holder, which is required to seek suitable, less hazardous chemicals. In addition, the requirement to take necessary measures to prevent accidents affecting the environment would apply to a wider range of situations, as the amendment would require that necessary measures be taken to prevent "incidents" affecting the environment. The obligation to provide information to the Secretary of State would also be widened and this includes the requirement to report all releases and other incidents that could result in any significant effect on the environment by means of pollution. The amendments also provide that prohibition notices could be served on either permit holder or operator.
Contravening the new prohibition is made an offence. It should be noted that the amendments qualify the defence of urgency. The defence of urgency is normally available where an unlawful use, discharge or release was done as a matter of urgency to secure the safety of a person. This defence is no longer available if the thing done was not a reasonable step to take in the circumstances, or where it needed to be taken due to the fault of the defendant.
The OPA amendments generally follow the OCR amendments in that a
new definition of "release" is created and it would be
unlawful to allow the release to continue. The amendments also
provide that it does not only have to be the operator who applies
for a permit and that a risk assessment would be required as part
of the application. They also widen the obligation to inform of
releases and incidents
The Petroleum Operations Notice No. 1 Form (PON1) and Guidance
would be amended to reflect these changes.
CONCLUSION
The OCR and OPA were designed to emphasise the commitment of the oil industry to the protection of the Marine Environment. The proposed amendments takes a step further toward this goal and indicates less tolerance for any discharge from offshore installations, howsoever caused. Should the proposed amendments be approved in their entirety, Operators and indeed any permit holders may wish to review their policies and procedures relating to any discharges from their installations.
For further information see the DECC website
This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq
Law-Now information is for general purposes and guidance only. The information and opinions expressed in all Law-Now articles are not necessarily comprehensive and do not purport to give professional or legal advice. All Law-Now information relates to circumstances prevailing at the date of its original publication and may not have been updated to reflect subsequent developments.
The original publication date for this article was 28/09/2009.