Major Hazard Facilities

Annual Situation Report

2004

TABLE OF CONTENTS EXECUTIVE SUMMARY .................................................................................1

Consistent regulatory framework and its application ..............................................................1 Stakeholder Issues.......................................................................................................................3 Overseas comparisons................................................................................................................4 Actions to facilitate improvement ...............................................................................................4 Level 1 Performance Indicators .................................................................................................5

BACKGROUND ...............................................................................................6 IMPLEMENTING MAJOR HAZARD FACILITY REGULATION: A STATUS REPORT..........................................................................................................8

Status of implementation.............................................................................................................8 Commonwealth On-shore ...........................................................................................................8 New South Wales.........................................................................................................................9 Northern Territory .......................................................................................................................10 South Australia ...........................................................................................................................10 Tasmania .....................................................................................................................................11 Australian Capital Territory .......................................................................................................11 Queensland .................................................................................................................................12 Victoria .........................................................................................................................................12 Western Australia .......................................................................................................................13 National Offshore Petroleum Safety Authority .......................................................................14

REPORT ON WRMC STRATEGIES .............................................................15 Strategy 1 - Facilitating a consistent Regulatory Framework ..............................................15 Strategy 2 - Sharing of Expertise .............................................................................................16 Strategy 3 - Practical Guidance and Training Material .........................................................16 Strategy 4 – Mutual Recognition of Safety Case Assessments ..........................................16 Strategy 5 - Performance Indicators........................................................................................17 Related Action 1 - Consistency in who regulates MHFs ......................................................17 Related Action 2 – Monitoring Implementation in Each Jurisdiction...................................17 Related Action 3 - Risk Based Cases for Exemption............................................................17

STAKEHOLDER IMPLEMENTATION PERSPECTIVES...............................18 Social Partners ...........................................................................................................................18 Jurisdictions ................................................................................................................................19

COMPARISON WITH OVERSEAS EQUIVALENTS......................................22 ILO Convention...........................................................................................................................22 European Union (EU) ................................................................................................................22 Organisation for Economic Cooperation and Development.................................................23 United Kingdom ..........................................................................................................................24 United States (US) .....................................................................................................................24

EMERGING ISSUES AND DEVELOPMENTS ..............................................26 Security ........................................................................................................................................26 Regulatory Differences ..............................................................................................................26

STATUS OF REFERENCED MATERIAL ......................................................29 ACTIONS TO FACILITATE IMPROVEMENT ................................................30 CONCLUSION...............................................................................................31 CONTEXT OF THE ASR ...............................................................................32 HISTORY.......................................................................................................33

EXECUTIVE SUMMARY This is the fourth Annual Situation Report1 (ASR) on Major Hazard Facilities (MHF). This ASR describes the status of adoption of the national standard by each jurisdiction, compares key components of the standard with those of comparable major overseas OHS agencies, documents concerns identified by NOHSC stakeholders and identifies developments and emerging issues. A major hazard facility is a workplace, such as a chemical plant, petroleum refinery or LPG depot, where quantities of certain hazardous or dangerous substances exceed threshold quantities, such that there exists the potential for serious harm to people, property or the environment in the event of an accident. There are estimated to be around two hundred MHFs in Australia.

Since its declaration by Ministers in 1996, the National Occupational Health and Safety Commission’s (NOHSC) National Standard for the Control of Major Hazard Facilities (the Standard) has provided a framework for States and Territories to develop consistent regulations to ensure safety at facilities which have the potential for major accidents. A basic tenet of MHF regulation is the premise that the ongoing management of safety is the responsibility of the operator and not the regulator.

Consistent regulatory framework and its application Implementation of MHF regulation All Australian jurisdictions anticipated having MHF legislation or regulations in place by mid-2003. This has not been achieved. Only Victoria (following the Longford incident) and Queensland have legislation in place specifically for the control of MHFs. WA has administered the National Standard under its Explosives and Dangerous Goods Act, and is in the process of developing regulations under the new Dangerous Goods Safety Act. With the exception of the ACT, which does not have any MHFs, all jurisdictions now expect to have MHF regulations in place before the end of 2005.

In jurisdictions where specific regulation does not exist, MHFs are dealt with under more general OHS laws and other laws for the storage and handling of hazardous and dangerous substances, the protection of the environment and planning. These requirements may not be sufficient to adequately manage the complexity of hazards and risks associated with a MHF.

Consistency of coverage The MHF Standard aims to prevent harm to people, property and the environment. To achieve this aim requires a coordinated approach within jurisdictions. In most cases, State and Territory OHS authorities have primary

1 Appendix A details NOHSC Annual Situation Reports

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responsibility for administering MHFs. The OHS authorities coordinate with planning, environment, and emergency management agencies to prevent and deal with catastrophic events. All jurisdictions have arrangements for liaison between the relevant agencies. In implementing the Standard, jurisdictions have faced the challenge of changing the focus of traditional workplace health and safety to thinking more broadly about safety management systems on sites. Most jurisdictions have a systems approach in place where employers are required to carry out hazard identification, risk assessment and risk control. The WRMC has sought to achieve national consistency in the regulation of MHFs, and the sharing of resources and expertise. NOHSC established a tripartite implementation reference group, the Major Hazard Facilities Implementation Reference Group (MHFIRG), to implement the WRMC request to improve adoption of the standard.

Practical guidance and training material Jurisdictions with mature regulatory frameworks have developed practical material to assist industry, employees, and regulatory authorities. This material assists with the development, assessment, and application of safety reports for MHFs, and is based on experience to date. The MHFIRG encourages and facilitates the sharing of guidance material and lessons learnt between the jurisdictions. Jurisdictions are actively sharing this information. This sharing of guidance material gives an indication of the many similarities between current and proposed MHF regulations in the jurisdictions. In a further attempt to facilitate the sharing of knowledge and lessons learned from accident investigations between jurisdictions, the NOHSC Office is holding a forum for MHF investigators and inspectors in March 2005. Performance Indicators WRMC agreed that performance indicators would be developed to support implementation of the Standard. The MHFIRG has continued to develop these performance indicators and significant progress has been made over the past year. The first level indicators, which relate to the implementation of legislation / regulations to give effect to the Standard, are complete and are reported on in the ASR. Indicators to measure the effectiveness of implementation of the standard and safety at MHFs were agreed by jurisdictions at a facilitated workshop in November 2004. The agreed performance indicators cover four areas:

• Level 1 - Enacting legislation/regulations to give effect to the standard. • Level 2 - Implementation of the national standard. • Level 3 - Effectiveness of MHF site performance. • Level 4 - Performance against elements of the National Standard.

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A summary of jurisdictional performance under the Level 1indicator is set out in Table 1. It is anticipated that reporting against the remaining performance indicators will progressively occur from 2005/06. Security issues The current international environment has seen the increase of security consciousness in Australia. Given that MHF sites hold large quantities of dangerous goods or other substances that have the potential to cause a major incident, there is national concern that they may be potential terrorist targets. The NOHSC Office discusses security issues with The Department of the Prime Minister and Cabinet and keeps the MHFIRG informed. Security issues relating to the public disclosure requirements of the Standard will be a focus for the coming year. Internationally, the Organisation for Economic Cooperation and Development (OECD) has released guidance material on the balance between increased security concerns and disclosure to the public,2 and this will be examined by the NOHSC Office as part of a review of the standard that will commence in 2005. The current national standard requires MHF operators to incorporate site security into their safety management plans. Regulatory Differences With most jurisdictions close to implementing MHF regulations, a number of points of difference between jurisdictions have been identified. The main differences relate to:

• which authority regulates MHFs; • the requirements for licensing of facilities; • regulator’s approval of safety reports; • consideration of environmental issues; • automatic classification of facilities with threshold quantities of

schedule substances; • the ability of the regulator to classify a facility based on non-scheduled

materials; and • certain definitions (eg. ‘near misses’) and reporting requirements.

Stakeholder Issues Industry and union groups have commented on the lack of progress being made to implement major hazard facility regulations across all jurisdictions. Concerns have been raised about the disparate ways jurisdictions are giving or planning to give effect to the Standard, and the dating of the standard with respect to overseas regulations, such as the UK’s Control of Major Accident Hazards (COMAH) Regulations and EU’s Seveso Directives. Although the National Standard has been in place for more than 8 years, as outlined above only 3 jurisdictions have enacted legislation or regulations giving effect to the

2 OECD Guiding Principles for Chemical Accident Prevention, Preparedness and Response http://www2.oecd.org/guidingprinciples/index.asp

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Standard and there have been inconsistency in the details of the approaches taken. In that time, COMAH and Seveso regulations have undergone substantial revision, resulting in the NOHSC Standard becoming out of date in relation to international developments. These issues will be considered as part of the upcoming review of the Standard commencing in 2005.

Overseas comparisons The national standard is becoming increasingly outdated in comparison to overseas regulations, such as COMAH and Seveso II. The initial standard was based on the European approach at the time of declaration of the standard in 1996. Since then the European legislation has been revised. The European Union is also presently developing a Seveso III Directive, which when finalised will further date the NOHSC MHF standard. The implications for Australia of international developments will be considered during the review of the Standard and Code of Practice.

Actions to facilitate improvement The Standard is intended to achieve national uniformity in the regulation of MHF sites. While it has yet to achieve this, where the Standard is being or has been adopted, the majority of the provisions have been implemented. It is anticipated that further improvement will be achieved once jurisdictions have given effect to the Standard through appropriate legislation and are reporting against the performance indicators agreed by the MHFIRG. The MHFIRG also noted a number of issues that have hindered the implementation of MHF legislation and regulations in some jurisdictions and that could influence MHF regulation in the future. These are: • a lack of resources assigned to development of legislation and

implementation of the Standard; • a low priority for development of MHF legislation relative to other

legislation in some jurisdictions; and • a lack of skilled personnel available to administer the safety case regime.

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Table 1: Level 1 Performance Indicators Performance indicators for the implementation of legislation/regulations giving effect to the National Standard for the Control of Major Hazard Facilities by jurisdictions.(As at November 2004)

Consultation paper circulated and approved by Minister(s)

Approval granted by Cabinet (or other,

if appropriate) for legislation to be

drafted

Legislation drafted and stakeholders

consulted

Legislation enacted (Date)

ACT Priority on developing other regulations under the

Dangerous Substances Act 2004, as ACT currently has no

facilities which would be classified as MHFs.

MHF regulations will follow as regulations under this

legislation.

Com Completed Completed Drafting of legislation has commenced.

Working Group established for stakeholder consultation.

Planned commencement in mid 2005.

NSW Completed Completed Drafting instructions prepared, consultation

underway. Public comment period for

draft regulations planned for Feb-Apr 05.

Gazettal planned for June 2005.

Aiming for commencement of regulations /Gazettal in

June 05.

NT Completed Completed Drafting of regulations underwayExpected early

2005

Planned commencement in mid 2005.

Qld Completed Completed Completed Completed Regulations enacted

7 May 2002

SA Completed Completed. Granted in January 2004.

Public comment on draft Dangerous Substances Bill to commence early 2005.

Commencement of legislation, estimated for 2nd

half of 2005.

Tas Completed Completed Drafting of legislation has commenced.

Commencement of legislation, estimated for 2nd

half of 2005

Vic Completed Completed Completed Completed Regulations enacted

1 June 2000

WA Completed Completed Completed Commencement of legislation, estimated for 2nd

half of 2005*

Total 8 / 9 8/ 9 4 / 9 2* / 9 * WA have administered MHFs under the Explosives and Dangerous Goods Act 1961 since 1997, using the provisions of the NOHSC Standard.

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BACKGROUND This is the fourth Annual Situation Report (ASR) for the National Standard for the Control of Major Hazard Facilities. This report outlines progress against the actions identified in the 2003 ASR to facilitate improvement and further actions to progress these during 2004-2005. The objective of the Standard is to prevent major accidents and near misses, and to minimise the effects of any major accidents and near misses, resulting from the activities of major hazard facilities. In line with international practice, the Standard provides criteria for identifying MHFs, and provides the regulator with the ability to declare a facility an MHF subject to the jurisdiction’s own regulation, even if the facility doesn’t exceed the threshold quantities. It requires a single authority to have responsibility for administering the MHF regime (which entails a regulatory role and coordinating the work of other interested bodies) and requires each MHF operator to prepare and update a safety report. The report must identify the relevant materials and operations at the site, the hazards and risks, the consequences of potential major accidents, and details of the safety management system for ensuring safety at the MHF. In May 2001, the Workplace Relations Ministers’ Council (WRMC) endorsed five strategies and three related actions to facilitate a nationally consistent uptake and implementation of the Standard in MHF regulation in Australian jurisdictions. These strategies include:

the establishment and implementation of a consistent regulatory framework based on the National Standard in all jurisdictions;

the sharing of expertise in the administration of the safety case regime and the technical assessment of safety cases between the jurisdictions;

the development of practical guidance and training material for regulators and industry parties;

an assessment of the potential for mutual recognition of safety case assessments between jurisdictions; and

the development of performance indicators to compare safety outcomes of MHF sites across Australia.

In addition, the WRMC endorsed actions to address the following issues raised by industry parties:

consistency in who regulates major hazard facilities; development of a time frame and process for monitoring the

development and implementation of regulations for major hazard facilities in each jurisdiction; and

ability of industry to develop risk based cases for exemption under major hazard facilities regulations.

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In September 2001, the MHFIRG was established to implement the WRMC strategies. The MHFIRG reports on progress to Ministers annually, through the Occupational Health and Safety Committee (formerly the Prevention Committee) of the National Occupational Health and Safety Commission.

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IMPLEMENTING MAJOR HAZARD FACILITY REGULATION: A STATUS REPORT

As indicated in the 2003 ASR, historically, most Australian MHF sites have been regulated under dangerous goods and occupational health and safety legislation. The agreement by each State, Territory and the Australian government in 2001 to adopt the Standard as the basis for regulating on-shore major hazard facilities has progressed at varying rates. However, all jurisdictions either have implemented, or are in the process of implementing, legislation to give effect to the Standard.

Status of implementation

Commonwealth On-shore Comcare has established a working group that represents the (approximately) 10 government agencies that are involved with or are responsible for the regulation of MHFs in the Commonwealth. Drafting of legislation has commenced and implementation will be complete by the end of 2005. Guidance material will draw on materials developed by Victoria, Queensland, the Australian Radiation Protection and Nuclear Safety Agency (ARPANSA), and the British Health and Safety Executive (HSE). Comcare has sought advice from other jurisdictions, and plans to discuss implementation and other issues with Victoria and Queensland. Specifics of Proposed Legislation MHF regulations will be developed under the OHS (Commonwealth Employment) Act 1991, which cover all Australian Government workplaces. Employers will be required to prepare and provide a safety case and assessment from an independent assessor to Comcare in order to be granted a license. Licences will be reviewed within five years. Employers will establish, document, maintain and test an emergency plan, and inform the community of these emergency arrangements. Confidentiality of information applies so long as it does not compromise the safety of people, property, or the built or natural environment. Confidential information determined by Comcare to be related to national security should be exempt from disclosure. Security at any MHF should be applied to all elements which affect the safe operation of the facility, including documents, computer hardware and software and boundary security. The MHF regulation is intended to cover all hazards that could lead to a major accident, including radioactive and biological hazards. Under MHF regulation, environmental impact is considered for classification purposes. Environmental impact for Australian government agencies is regulated under the Environment Protection and Biodiversity Act 1999.

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New South Wales New South Wales’ drafting instructions for MHFs are currently with the Parliamentary Counsel’s Office. Progress has been delayed by competing priorities in legislative drafting. When draft MHF regulations are completed they will be available for public comment for eight weeks. The comment will be evaluated, the draft regulations revised accordingly and then gazetted. The process of developing the legislation has been consultative, with two committees (consisting of other government agencies involved with MHFs, unions and industry) having input into the drafting instructions. These committees will continue to be involved during the public comment period and implementation. In November 2004, WorkCover NSW held 21 public information sessions covering proposed new regulations for dangerous goods and MHF. About 3000 people attended these sessions, which were run across metropolitan Sydney and country NSW. New South Wales’ guidance material will draw on other jurisdictions’ guidance, including material from Queensland and Victoria, and a suite of draft advisory papers developed in consultation with industry by the NSW Department of Infrastructure, Planning and Natural Resources (DIPNR). DIPNR was formerly the lead agency for the MHF regime in NSW. New South Wales has identified approximately 32 MHFs, but this number is expected to increase when notification is required. Specifics of Proposed Legislation MHF amendments will be made to regulations under the Occupational Health and Safety Act 2000, which covers all workplaces. The MHF regulatory regime will take a multi-agency approach coordinated by WorkCover NSW. Other agencies involved include the NSW agencies for planning, environment, police and emergency management. NSW will not license MHFs. Facilities with more than 10% of threshold quantities will be required to notify WorkCover. Each MHF operator will be required to establish, document, and maintain a safety management system for the MHF. Specific requirements applying to the MHF operator include hazard identification, risk assessment, risk control, emergency planning, security planning, consultation with employees, provision of information to the community, and provision of safety reports to WorkCover. Workplace, environmental and public safety will be covered. The MHF legislation is intended to also allow WorkCover to classify facilities as MHF if they have the potential for major accidents arising from materials not included in the schedule.

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Northern Territory Northern Territory was granted Cabinet approval to draft MHF legislation on 7 July 2004. There are currently two MHFs under construction, with NT Worksafe working with the owner/builders of the facilities to prepare a safety case for each facility. NT Worksafe plans to inform key stakeholders of the requirements of the new regulation through presentations and feedback sessions once the regulation is enacted, which is anticipated by the end of 2004. NT Worksafe has received support and guidance from Victoria, and will use existing guidance material rather than developing its own. Specifics of Proposed Legislation Legislation is being drafted, and Worksafe is waiting for advice as to whether or not the Northern Territory will implement the Standard in regulation or as a code of practice. Either way, the Standard will be adopted without change. Once agreed, the legislation should take approximately four weeks to be enacted.

South Australia The draft Dangerous Substances Bill will incorporate new MHF requirements based on the National Standard and is to be released to stakeholders in early 2005 for a comment period of four to six weeks. Informal question and answer sessions will be held as the need arises to clarify any necessary points of information. A “settled” Bill will then be prepared for introduction to Parliament. The proposed legislation will include certain necessary steps that facilities will need to meet, including developing a compliance plan and the first safety case. These timelines have been set for periods ranging past three years of enactment, but are not included in the legislation. A series of guidelines are being drafted, some of which will be ready for release when the legislation is enacted. These guidelines are based on the experiences of Queensland and Victoria. Other guidelines that are not immediately required at the time of enactment will be released within three months of the enactment date. Performance indicators (PI) have not been developed, with the intention being that the indicators developed through the MHFIRG will assist in their development. SA plans to learn from the experiences of the MHFIRG and recognises that some levels of PIs will be needed for the assessment of safety cases.

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Specifics of Proposed Legislation The proposed Dangerous Substances Act will cover the regulation of Dangerous Substances, Explosives (including security sensitive ammonium nitrate) and MHFs. The National Standard and Code of Practice will both be implemented under this legislation. The proposed scope covers persons undertaking any activity involving a dangerous substance. Radioactive material will not be included, as it is already covered under other legislation in SA. The existing licensing system used for dangerous substances will be applied to MHFs, with some conditions attached. Safety cases will be a condition of licensing, and will be required within a set period. It is also a condition of the license to have a security management plan approved by the Regulator, which can include provisions for confidentiality of information relating to business processes or financial information. The proposed legislation will include the requirement for the regulator to “have regard” to the National Standard and Code of Practice in determining and classifying a MHF. General safety duties include having regard to the likelihood and severity of harm to persons, property and the environment. This will not limit or derogate the Environment Protection Act 1993 requirements.

Tasmania MHFs are identified through the storage schedules, and managed and operated under the requirements of the Dangerous Goods Act 1998 and the Workplace Health and Safety Act 1995. Currently, legislative drafting has been delayed by two months due to a shortage of drafting resources. The Standard will be applied into regulation, and it is envisaged that legislation will be enacted and commenced in 2005. Tasmania will not employ a licensing system, as the duty of care will remain with operators of MHFs. Because different agencies are responsible for the regulation of MHFs, the relevant agencies will be used to evaluate the appropriate sections of each safety case. Tasmania intends to utilise guidance material used by other jurisdictions and adapt it to Tasmania’s requirements. Tasmania also intends to assist in the development of performance indicators through the MHFIRG and support and adopt these nationally consistent indicators.

Australian Capital Territory The ACT is currently placing priority on developing other regulations under the Dangerous Substances Act 2004. The ACT has no facilities that would be

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classified as MHFs, however MHFs will follow regulations under this legislation.

Queensland Since implementing legislation on 7 May 2002, three MHFs have been declassified through reduction of materials below the threshold quantities. Queensland currently has 27 active MHFs and all due safety reports were received on time. When gross deficiency checks were undertaken, 5 facilities failed, three of which were for minor infringements. There have been significant improvements since implementation, particularly in areas of systematic risk assessments, and control measures. Queensland industry has found the legislation useful. In relation to guidance material, Queensland has an advanced suite of materials which New South Wales and South Australia are planning to draw on in developing their own guidance material once MHF legislation is enacted. Specifics of Legislation The governing legislation covers not only MHFs, but also dangerous goods and minor storage workplaces. Queensland does not utilise a licensing system. The potential for environmental impact is a part of classification and provision is made under the DG Act for authorised officers to take all reasonable action to prevent, remove or minimise a dangerous situation that will impact on the environment. Under the Dangerous Goods Act, occupiers are required to prepare and provide a safety report after a facility has been classified an MHF. Provision is also provided for safety reports to be revised before any modification of the facility is made, and every five years. Emergency plans must be prepared, maintained and documented in consultation with employees and revised before modifications are made to the facility. Whilst safety reports are not specifically exempt from FOI requirements, provisions for exempting commercially and security sensitive information exist.

Victoria The Victorian Occupational Health and Safety (Major Hazard Facilities) Regulations commenced on 1 June 2000 and give effect to the Standard and the recommendations of the Report of the Longford Royal Commission. The regulations include protection of people and property from acute events. Victoria has licensed 40 facilities, with one license refused and a further five facilities developing safety cases. Victoria is conducting post licensing

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oversight in manner similar to the European Seveso directives. This requires: a written visit plan that is exchanged with the facility; a formal annual five day inspection on particular controls and Safety Management System (SMS) elements; and response work for incidents or complaints. A full annual cycle has now been completed on all sectors. Specifics of Legislation The governing legislation (the OHS and Dangerous Goods Acts) covers all workplaces and dangerous goods storage facilities. The MHF Regulations complement these. Victoria utilises a licensing system, and operators are required to prepare and provide a safety case to WorkSafe before a licence to operate is granted. Provision is made for revisions or safety cases as a result of: a major incident; modification; failure of a control; at the direction of the Authority; and every five years. The legislative scope of the OHS and Dangerous Goods Acts does not allow for consideration of radioactive or biological materials. The Department of Human Services is the lead agency for these particular hazards. Emergency plans are prepared by the operator and employees and must be prepared in conjunction with the emergency services and local councils. Freedom of information and other government provisions for confidentiality of information apply to MHFs. Security is an implicit requirement with OHS and DG legislation. Under the MHF regulations, security is a potential hazard and preventative control identified in all safety cases.

Western Australia Western Australia implements the National Standard administratively under section 45c of the Explosives and Dangerous Goods Act 1961. WA currently has 28 MHFs, of which 20 have approved safety cases. In the last year, three sites have reduced their storage quantities so as to remain below the threshold quantities. MHFs in the Kwinana region, where the majority of WA’s MHFs are located, have formed a community liaison group called the Kwinana Industry Public Safety Liaison Group (KIPSLG). This group meets every 3 months to give presentations to the communities affected by MHFs. Specifics of Legislation The governing legislation, the Explosives and Dangerous Goods Act 1961, administratively applies the National Standard under Section 45c. This applies to premises that store or propose to store dangerous goods in quantities above the MHF Standard thresholds in Schedule 1. Some sites with quantities below the thresholds have also been classified due to public risk. Conditions requiring compliance with the National Standard and compliance with an approved safety case are applied via a license to store Dangerous

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Goods. The Dangerous Goods Safety Act 2004 has superseded the 1961 Act and will provide for MHFs through specific regulations expected to be completed in 2005.

National Offshore Petroleum Safety Authority Safety in the offshore petroleum industry in Australia is regulated under the safety case regime that is underpinned by the objective based Petroleum Submerged Lands (Management of Safety on Offshore Facilities) Regulations 1996. A basic tenet is the premise that the ongoing management of safety is the responsibility of the operator and not the regulator. Within this objective-based regime there is a requirement that the operator of an offshore petroleum facility must make a formal “case” to the regulator which outlines the types of safety studies and analyses undertaken, the results obtained and the management arrangements in place to assure the continued safety of personnel on a particular facility. Once the regulator has accepted a safety case, it forms the ‘rules’ with which the operator must comply in operation of the facility and against which those operations are audited by the regulator. The safety case regime is well established in Australian offshore oil and gas regulation and was introduced following an analysis of the lessons learnt from the UK North Sea Piper Alpha disaster in which 167 men died in July 1988. In 1999, the Department of Industry, Tourism and Resources commissioned a review of safety administration in offshore Australian Government waters. The review, released in September 2001, strongly supported the safety case style of regulation but recommended that Australia replace the existing administration of the safety case system whereby each State and the Northern Territory regulate offshore petroleum safety, with a single national offshore petroleum safety authority under joint Federal and State/NT control. In October 2001, the Department of Industry, Tourism and Resources launched a project to establish the National Offshore Petroleum Safety Authority (NOPSA). NOPSA is accountable to Federal, State and Northern Territory Ministers and will improve safety across the offshore petroleum industry and deliver world-best practice safety regulation in Australia. NOPSA is a single statutory authority that will reduce the regulatory burden on industry operating across multiple jurisdictions. It will commence operations on 1 January 2005 and provide consistent and comprehensive benefits, ensuring better safety outcomes for individuals working on offshore platforms and reducing risks to the environment.

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REPORT ON WRMC STRATEGIES In May 2001, the Workplace Relations Ministers’ Council (WRMC) endorsed five strategies (and three related actions) to achieve national consistency in major hazard facility regulation, and assigned responsibility for progressing this work to the National Occupational Health and Safety Commission (NOHSC). The NOHSC established a Major Hazard Facilities Implementation Reference Group (MHFIRG), comprised of representatives of the lead agencies responsible for the establishment of MHF regulations in Australian jurisdictions, representatives of the Australian Chamber of Commerce and Industry (ACCI) and the Plastics and Chemicals Industry Association (PACIA), and a representative of the Australian Council of Trade Unions (ACTU). Through 2003-04, MHFIRG members have continued work consistent with the WRMC strategies for uniform regulation of major hazard facilities in Australia.

Strategy 1 - Facilitating a consistent Regulatory Framework Implementing Regulation Progress towards implementation of MHF legislation/ regulations has advanced in most jurisdictions. Legislation is enacted in 2 of 9 jurisdictions and has been adopted administratively in another. Drafting of legislation has commenced in several other jurisdictions with commencement planned for mid-2005. Jurisdictional implementation is discussed in the section “Implementing Major Hazard Facility Regulation: A Status Report” above. Consistency of coverage As discussed in the 2003 ASR, implementation of the Standard remains in the control of individual jurisdictions, rather than as a nationally coordinated approach. There are overlapping responsibilities within each jurisdiction for the regulation of MHFs. In most jurisdictions, the principal OHS agency has primary administrative responsibility for safety at MHFs, with various other agencies involved in relation to regulating and dealing with catastrophic events. All jurisdictions have arrangements for liaison between the relevant agencies. The ACCI sees the multiple and differing agencies involved as a major reason for the slow implementation of the Standard and insufficient allocation of resources for carrying this work forward. The ACTU supports the establishment of a national regulatory agency for onshore facilities similar to the National Offshore Petroleum Safety Authority (NOPSA). The interdependence of a number of offshore and onshore facilities – some of which are connected by pipelines – would make this a logical step, particularly for those facilities. It is estimated that there are approximately 200 onshore MHFs in Australia, which may be a manageable number for a well-resourced national body. The ACCI supports high level consistency across jurisdictions in the regulation of MHFs. Industry has suggested a review of the offshore arrangements once they have been in place for some time to enable a meaningful assessment of the benefits of a joint authority arrangement for

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onshore MHFs. Jurisdictional OHS Authority representatives have not expressed a view on the underlying policy question of whether the offshore model is relevant and applicable to onshore facilities. Review of Schedule 1 Schedule 1 of the Standard is pivotal to the classification of establishments as MHFs. A review of Schedule 1 was completed in October 2002, and a new edition of the Standard was declared. Schedule 1 will again be reviewed (in light of European developments) as part of the review of the Standard commencing in the 2005-06 financial year.

Strategy 2 - Sharing of Expertise The type of assessment and inspection process for MHFs requires highly skilled personnel who have specialist knowledge of the operation of MHFs, of the risks associated with such facilities, and of OHS management and safety case requirements. To help overcome shortages of qualified personnel, jurisdictions have agreed to share, and are sharing, resources and lessons as needed. This has been noted in the jurisdiction status reports. The NOHSC Office is participating in this strategy by organising a conference for MHF investigators to share learnings about various aspects and stages of the investigation process, to be held in March 2005. Jurisdictional representatives also meet independently of ACCI, ACTU and NOHSC members to discuss implementation and regulatory issues, as well as share knowledge and expertise.

Strategy 3 - Practical Guidance and Training Material The relatively small number of personnel required for assessing safety cases and regulating MHFs in each jurisdiction is insufficient to warrant the establishment of a formal national training program. Jurisdictions are yet to determine how these personnel will be trained but they will use the core competencies agreed in 2002 to foster consistency and transport of skills. In addition, information and material on training will be shared on an ongoing basis. Attention will also be given to the needs of facility operators in developing and administering safety regimes. Several jurisdictions are in the process of developing guidance material with assistance from those jurisdictions that already have such material in place.

Strategy 4 – Mutual Recognition of Safety Case Assessments In the 2003 ASR it was reported that it is not possible to implement this strategy and it will not be reported against in future. This is because each MHF is unique, and it is not possible to mutually recognise safety cases from different facilities, even though they may be of similar type and employ similar processes. This does not prevent facilities sharing information in the development of their safety case documentation.

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Strategy 5 - Performance Indicators WRMC agreed that performance indicators would be developed to support implementation of the Standard. The first level indicators (enacting legislation/regulations) are complete and are reported on in this ASR (see Table 1 in the Executive Summary). While these indicators have been utilised by the NOHSC Office to record legislative milestones, they will become redundant (except for historical recording purposes) once all states have enacted legislation. The remaining performance indicators were developed at a facilitated workshop in November 2004. It is anticipated that reporting against these performance indicators will begin from 2005/06. The agreed performance indicators cover four areas:

• Level 1 - Enacting legislation/regulations to give effect to the standard • Level 2 - Implementation of the national standard • Level 3 - Effectiveness of MHF site performance • Level 4 - Performance against elements of the National Standard

Related Action 1 - Consistency in who regulates MHFs Within each jurisdiction the lead agency with responsibility for MHFs remains split between OHS agencies (6 jurisdictions) and other agencies with responsibilities for emergency services, planning, and industry and resources (3 jurisdictions). Any change in such arrangements is presently a matter for the respective jurisdiction.

Related Action 2 – Monitoring Implementation in Each Jurisdiction The MHFIRG regularly reports to NOHSC and provides an annual report through NOHSC to WRMC on progress of implementing a regulatory framework for the control of major hazard facilities. Monitoring is also being addressed through work under Strategy 5 – Performance Indicators.

Related Action 3 - Risk Based Cases for Exemption Queensland can classify facilities that don’t meet the threshold quantities through an enabling clause based on the potential for a hazardous materials emergency and the extent to which an emergency would pose a risk to persons, property or the environment. Sites can be de-classified where the facility can demonstrate that its operations pose no significant risk. Further consideration of these issues, based on Queensland’s experience, nationally will be considered as part of the planned review of the Standard commencing 2005/06.

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STAKEHOLDER IMPLEMENTATION PERSPECTIVES

Social Partners Industry and union social partners were asked to provide their views on implementation. The following information has been provided by the social partners. Industry Industry is disappointed to note that only two states have adopted the national standard into legislation some eight years after declaration by NOHSC, although recognising that Western Australia has adopted the standard administratively and is currently preparing regulations. Those jurisdictions who have enacted legislation on MHFs have not implemented them on a nationally consistent basis. This is a major concern for the Australian community in terms of both safety and security. There are a number of specific issues currently of concern:

• Inconsistency in adoption Specific differences exist between the MHF Regulations in Victoria and Queensland (and the legislation currently being drafted in NSW and WA). These differences are as fundamental as the definition of what is a MHF and also the scope of the regulations.

• Inconsistency in Lead Agency MHF legislation is administered by a range of different lead agencies – WorkCover in Victoria, Emergency Services in Queensland, Department of Industry and Resources in WA etc). These differences result in some differences in focus in implementation.

• Inefficiencies and costs Given the NOHSC National Standard was developed in a lengthy tripartite process over some five years, involving a Regulatory Impact Statement and Public Comment processes, it is inefficient and costly to have further tripartite development processes at the jurisdictional level – often taking years for each jurisdiction.

• Complexity and Cost Implementation of MHF legislation and development of a safety case by each MHF has proven to be a very costly and complex process. National companies should be able to used streamlined and consistent processes to develop the safety case for each MHF, even though they may be situated within different jurisdictions. The lack of national consistency makes this unachievable.

The lack of progress in the adoption of the national standard;

• is an ineffective use of stakeholder resources • is inefficient and costly for industry to comply with different regimes in

each state/territory • provides a competitive disadvantage for those companies operating in

the two states who have adopted the national standard.

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• is inconsistent in providing protection for employee and community safety and heath and national security across Australia.

Industry calls on the jurisdictions to take action to adopt the national standard and to actively and constructively participate in the standard review which is scheduled to commence shortly. Unions In essence the National Standard for the Control of Major Hazard Facilities has not been implemented throughout Australia. The imperative for addressing worker and employer safety is greater than any other single issue because of the threat of major accidents. In other words the effect of not implementing the National Standard could be catastrophic. The decision by State and Territory governments to ensure that the standard is implemented by a single public authority with administrative responsibilities for major hazard facilities is critical to the success of implementation. Unions are particularly concerned that the inconsistencies in how different states and territories adapt the National Standard, particularly in the areas of classification, emergency plans, and confidentiality of information, will compromise the national and internationally recognised standards related to MHFs.

Jurisdictions The jurisdictions that have implemented the Standard have provided their perspectives on how implementation has progressed. Queensland, Victoria and Western Australia contributed the following paragraphs. Queensland Implementation has proceeded very well during the year with all due safety reports submitted on time. The approach of legislatively staging the requirements of the safety report process proved invaluable in achieving timely submission of high quality reports. In particular, the requirement for a systematic risk assessment (SRA) to be completed in the first 3 months of the 16 month process enabled CHEM Unit, as the regulators, to review and input into the occupiers’ process at a relatively early stage. Of the 19 reports falling due and submitted during the year, only 3 were deficient in content to an extent that significant rewrites had to be directed before detailed assessment could proceed. Very positive safety gains have also already been realised as a result of the process, particularly in the “lower technology” industry sector. To quote one safety report: “With the classification of the ********* site as a Major Hazard Facility there has been a cultural change in the way the site regards itself and

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the operations. There has been an increased focus on the hazards and risks associated with the operations that has extended from senior management to the plant floor.” The majority of SRA’s identified additional critical prevention and mitigation controls that were subsequently installed and no doubt more will follow as detailed safety report assessment proceeds. A good result for the first full year since the legislation formally commenced. Victoria Since implementing the National Standard, six facilities have reduced their risks by removing quantities of Schedule 1 material and have since been declassified. Victoria employs a safety case system that allows the operator and regulator to work off a common view of the risks. More regulatory interventions are at the systems level targeting root causes. The targeting of root causes is often conducted through senior management rather than as senior management interventions. About 25% of MHFs require performance improvements. WorkSafe’s main work is not to focus on these facilities that must improve, to make the oversight process as efficient as possible and to extend some of the MHF lessons to other parts of the chemical industry. Over the past two years, Victoria has provided advice to all states, including specific training to Queensland and South Australian regulators. WorkSafe is committed to taking the key lessons and principles from safety case assessment to other licensing regimes administered by WorkSafe. There is clear evidence that improvements have been made to the control of major hazard as a result of implementing MHF regulations in Victoria. The most common examples of these safety gains include: Hazard (Inventory) Reduction

Reduction in buffer storage quantities Removal of surplus high-risk materials Removal of waste and contaminated materials

Control Measure Improvement Improved emergency plans Additional operational and engineered control measures Accelerated improvement plans

HAZID, Safety Assessment and Knowledge Management Improved understanding of the hazards, the risks, and the ways to

control them Improved information, instruction and training to employees and others Improved management of the knowledge gained.

Culture and Workforce Involvement Improved safety culture Improvement workforce involvement Commitment to continually improve

Safety Management Systems More comprehensive and better integrated management systems Management systems tailored to site hazards Better and more comprehensive performance standards

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Improved audit, monitoring and review processes Western Australia WA currently has 20 Major Hazard Facilities operating with approved safety cases. A further 18 facilities that meet the threshold requirements of the National Standard are in various stages of completion or assessment to be formally classified as a Major Hazard Facility. A number of mining operations in WA store and use chemical reagents listed in the National Standard making them eligible to be classified as a Major Hazard Facility. However, at present these sites have not been required to be formally assessed as a Major Hazard Facility due to insufficient staff resources. The expanding resources sector has resulted in new projects such as Gorgon, Burrup Fertilisers and others yet to be announced. The majority of these projects will result in additional Major Hazard Facilities in WA. These new projects, and those existing facilities which pose the greatest threats to the community, have received the Department's priority of effort and focus to date.

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COMPARISON WITH OVERSEAS EQUIVALENTS

ILO Convention The International Labour Organisation (ILO) in 1993 adopted the Convention on the Prevention of Major Industrial Accidents (Convention No 174). This provides a framework for the establishment of a national major hazard system for the prevention of industrial accidents, and to mitigate the consequences of such an accident. It requires the formulation, implementation, and periodic review of national policy concerning the protection of employees, the community, and the environment, against risk from major hazards. Major provisions include: the preparation of a safety report containing technical, management and operational information covering the hazards and risks of a major hazard facility and their control; reporting of all major accidents; establishment of off-site emergency plans; and siting policy for the separation of a proposed major hazard facility from residential areas, public facilities and existing major hazard facilities. Only ten countries (Albania, Armenia, Belgium, Brazil, Colombia, Estonia, the Netherlands, Saudi Arabia, Sweden and Zimbabwe) have ratified this convention.

European Union (EU) The Seveso II Directive was adopted by EU Member States on 14 January 1997 and fully replaced Seveso I (Directive 82/501/EEC). Its provisions became mandatory from February 1999. Seveso II has been broadened (not reviewed) to better achieve its aims. In particular, it addresses questions raised in the Environment Council when Seveso I was adopted about:

the scientific and practical basis of the list of named carcinogens and the qualifying quantity assigned to them; and

the qualifying quantities for substances dangerous for the environment i.e. substances that present a major-accident hazard to the aquatic environment.

Other amendments include the following:

a key feature of the new Directive is the revision of certain definitions and qualifying quantities in Annex I to the Seveso II Directive.

the entries for ammonium nitrate have been revised. two new entries have been added to include composite potassium

nitrate-based fertilisers in prilled/granular form (5000 / 10,0000 tones) and crystalline form (1250 / 5000 tones).

seven new carcinogens have been added to the existing list. the definitions of the two categories of explosives have been revised to

align with the UN/ADR classification.

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the aggregation rule has also been changed. The Amendment Directive separates out the summation of hazards toxic to humans from ecotoxic hazards, and clarifies that the rule must be applied separately for:

• toxic/very toxic substances; • oxidising, explosive, flammable, highly flammable or extremely

flammable substances; and • substances classified as dangerous for the environment

to determine whether the Directive applies and, if so, at what tier.

Organisation for Economic Cooperation and Development The OECD, in consultation with the Inter-Organization Programme for the Sound Management of Chemicals (IOMC), and the Working Group on Chemical Accidents (WGCA), has prepared a second edition of the Guiding Principles for Chemical Accident Prevention, Preparedness and Response as part of the OECD Chemical Accidents Programme, under the auspices of the Working Group on Chemical Accidents that manages the OECD Programme on Chemical Accidents. The Guiding Principles are consistent with instruments and guidance materials prepared in connection with the European Union Seveso II directive, which has been adopted in many European countries. The objective of the Guiding Principles is to provide general guidance for the safe planning, construction, management, operation and review of safety performance of hazardous installations to prevent accidents involving hazardous substances and mitigate adverse effects of accidents through effective land-use planning and emergency preparedness and response.3

The Guiding Principles are based on the premise that all hazardous installations should comply with the same overall safety objectives, irrespective of size, location, or whether the installations are private or publicly owned/operated. The Guiding Principles applies also to those installations where other industries than chemical use or handle potentially hazardous chemicals in their operations, as well as to chemical storage facilities. It is intended that the Guiding Principles be applicable worldwide, not only in OECD countries. The working group comprised organizations including the ILO, IMO, UNECE, UNEP, UNOCHA and WHO. This group worked with outside bodies as well to ensure they reached interested parties in non-OECD countries.

3 News Release for the Guiding Principles for Chemical Accident Prevention, Preparedness and

Response, 2003.

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United Kingdom The UK is currently conducting a consultative process to implement the changes made to the Seveso II Directive. The Health and Safety Commission (HSC) has taken the opportunity of the consultative process by including a small number of additional changes to clarify or make explicit certain requirements under COMAH. The changes are relatively minor, administrative matters that include:

revocation of regulation 3(4) as a result of timescales for establishments coming into scope or moving from lower to top tier;

review and revision of the safety report; the role of the Agency as a consultee on off-site emergency plans; notification under regulation 6 of COMAH for petroleum products; and the provision of safety reports to the competent authority.

These amendments have no effect on the inclusion of the Seveso II revisions. The consultative period for these amendments closes on 1 October 2004, with an expected implementation date of 1 July 2005.

United States (US) As in Europe, the United States (US) has been moving away from a prescriptive approach and towards performance and process based standards. In particular, regulation for chemical accident prevention has moved substantially in this direction. Chemical plant explosions, refinery explosions, and toxic gas releases are serious threats in the case of chemical related major hazard facilities. The US is moving towards “process safety” whereby regulations do not specify the particulars of operation but rather demand that each chemical plant have written operating procedures and precise operating parameters, and crucially, assess its operations in detail. Such an approach is set out in the Occupational Safety and Health Administration Process Safety Management Standard (PSM) and the Environmental Protection Agency Clean Air Act (1990) amendments (Risk Management Plans). These build on the overarching process safety standards developed by industry groups, and require employers to take a systematic approach to addressing safety and health hazards. It includes obligations to identify and prioritise all hazards in terms of seriousness, and to track progress in controlling them. Other elements include employee participation, and an emphasis on flexible performance-based obligations under which firms can develop risk management plans tailored to site specific conditions. Such plans must outline how companies plan to respond to an accident, how they have prepared for such emergencies, their accident histories, and how great an impact a bad plant accident would have on the surrounding areas. Among other matters, the plan must detail methods and results of the hazard assessment, accident prevention, and emergency response programs.

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The US has also established a program to encourage community planning and preparation relative to serious hazardous material releases. Since September 2001 the threat of industrial sabotage has been a major driver of regulatory change in the area of major hazard industries. Additional obligations have been placed on facility operators, such as developing emergency response plans that respond to terrorist attacks, and conducting risk assessments of the vulnerability of facilities that store major chemical hazards. New legislative measures to ensure that there is consistency in the emergency plans adopted by facility operators are currently under review by the US Congress. Significant new legislation includes The Chemical Security Act and the Homeland Security Act. Much attention is focused on unauthorised release of chemicals rather than accidental releases.

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EMERGING ISSUES AND DEVELOPMENTS

Security Part 12 of the Standard, ‘Community Information’ requires operators to provide relevant information on safety measures and details of planned responses to emergency situations to the community and other closely located facilities. Operators are also required to provide details of the name and location of the MHF, an explanation of the activities undertaken at the site, general information about the nature of the hazards related to the MHF and actions people should take in the event of an accident. In the current security climate, there is question as to whether the Standard and Code of Practice deal appropriately with national security issues, including the balance between public disclosure and security concerns. The NOHSC Office has discussed these issues with the Department of Prime Minister and Cabinet, and the Attorney-General’s Department and has been advised that no guiding principles have been developed, although the current review of critical infrastructure is examining various higher level issues. This issue was raised with the MHFIRG at its August 2004 meeting. The representatives from Queensland, Victoria and Western Australia (the states that have implemented MHF regulation) had had some discussions with police and other emergency departments in their States about security, and no change in security policy was requested. The members of the reference group generally considered that it would be preferable for any relevant security policy to be developed through the current nationally coordinated approach, with the Standard and Code of Practice adjusted if necessary. The Attorney General’s Department is consulting with owners and operators of critical infrastructure (some of which are MHFs) to develop security plans.

Regulatory Differences With most jurisdictions close to implementing regulations, the NOHSC Office has become aware of a number of points of difference emerging across the jurisdictions, including: the definitions of ‘near misses’ and their subsequent reporting requirements; who will regulate MHFs; and what is or isn’t an MHF. These regulatory requirements in some cases differ not only from other jurisdictions, but also from the National Standard. Other differences identified include whether or not facilities are licensed, how the regulator reviews safety reports and consideration of environmental issues. Regulators The National Standard is “designed to be implemented by a single public authority with administrative responsibility for major hazard facilities. While a number of public authorities will be involved, there should be only one single

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lead authority responsible for the coordination and administration of the standard.”4 There are overlapping responsibilities within each jurisdiction for the regulation of MHFs, because, in most jurisdictions, while the principal OHS agency has primary administrative responsibility for safety at MHFs, various other agencies are involved in relation to regulation and dealing with catastrophic events. All jurisdictions have arrangements for liaison between the relevant agencies, however, as stated in the National Standard, this administrative complexity is one of the driving factors behind the need for national uniformity. Near Misses The National Standard defines a near miss as “any sudden event, which but for mitigation effects, actions or systems, could have escalated to a major accident.” Comcare will use the definition of the Standard, and employers will be required to provide written notification to Comcare of any incident that meets or exceeds this definition. In NSW the term ‘near miss’ is already used in another regulation with a different definition, so ‘near misses’ are likely to be called ‘prescribed incidents’ in the MHF regulations, defined consistently with the National Standard, and will have mandatory reporting requirements. In the Northern Territory the definition of ‘near miss’ will meet the intent of the Standard, but will endeavour to use a ‘plain English’ definition. There has been no decision made on whether reporting near misses will be a mandatory requirement as yet. In South Australia the term ‘near miss’ covers sites with dangerous substances and explosives in addition to MHFs. A near miss may be included under the definition ‘dangerous situation’ which is “a situation involving a dangerous substance that is creating or likely to create imminent risk of harm to people, property or the environment”. Dangerous situations will require notification to the relevant authority. In Queensland, near misses are defined and MHFs are required to investigate and record them. Although not required to report them at the time, the records and investigation results are available to the regulator. In Victoria, near misses are not required to be reported under MHF Regulations but incidents reported under OHS and Dangerous Goods Acts to Worksafe meet the definition of near miss contained in the standard. Upon receiving their licence, MHFs are advised that they are required to notify of near misses under the other Acts. 4 National Standard for the Control of Major Hazard Facilities. Page vii.

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The Dangerous Goods Safety Bill of Western Australia, which MHF regulations will be formed under, does not use the term near miss, or anything similar. Tasmania’s legislation, at this stage, will use the same definition as the National Standard. Classification of MHFs In the National Standard, a facility is classified as an MHF if the quantity of chemicals on a site exceeds a quantity or aggregate set out in Schedule 1. A site may also be classified as an MHF by a jurisdiction if “any material listed in Schedule 1 is present between 10% and 100% of the corresponding threshold or aggregate quantity, or if in the opinion of the relevant public authority, an activity within a facility has the potential to cause a major accident.”5 Listed below are the requirements for classification of 5 of the 9 jurisdictions. Comcare: Sites will automatically be classified MHFs if: the quantity exceeds threshold; it is a nuclear facility; the facility is a laboratory that requires physical containment. Sites may be classified as MHFs if, after a risk assessment and consultation with the employer, the SRCC is of the opinion that the facility has the potential to case a major accident. The regulations will apply to any facility under Australian government control which is or may be classified as an MHF, this includes chemical, biological, and radioactive hazards. New South Wales: A site will be classified as an MHF if threshold quantities of schedule 1 materials are exceeded or if the aggregate quantity ratio (AQR) exceeds 1. In accordance with criteria in the standard, facilities with 10 – 100% of threshold quantities, or 0.1 – 1.0 AQR, may also be classified. Other facilities may be classified as an MHF if they are determined to have the potential for a major accident as a result of non-schedule 1 materials. South Australia: The proposed classification for MHFs will be based on a facility having 100% of Schedule 1 threshold or aggregate materials. Other sites with materials below 100% will be regulated under the improved dangerous substances requirements, which will require a more complex SMS dependant on the increased level of risk. Queensland: Classification is based on quantity (>100% of threshold or aggregate) as well as off site risk potential. No facilities have to date been exempted following offsite risk analysis. Victoria: Classification is based on quantity (>100% of threshold or aggregate).

5 National Standard for the Control of Major Hazard Facilities. Page 11.

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STATUS OF REFERENCED MATERIAL The Standard references the National Code of Practice for the Control of Major Hazard Facilities [NOHSC: 2016(1996)], (1996), (the MHF Code of Practice), and the Australian Code for the Transport of Dangerous Goods by Road and Rail, 5th Edition, (1992) (the ADG Code). It is proposed that the MHF Code of Practice will be reviewed with the Standard, commencing in 2005/06. The reference to the fifth edition of the ADG Code is now out of date; the sixth edition was published in 1998 and publication of the seventh edition is imminent. The National Road Transport Commission (NRTC) is planning to release an updated edition of the ADG Code every 2-3 years to reflect the similarly updated recommendations of the United Nations Orange book. The revised regulations in the ADG Code are not automatically adopted by the jurisdictions. They must be agreed by a majority of jurisdictions represented on the Australian Transport Council, which meets twice a year in May and November. Once agreed, all jurisdictions are obliged to either legislate or reference the updated package. Future reviews of the Standard will consider changes to the ADG Code. The MHF Code of Practice references 13 documents, and lists 28 items for further reading. Their continued relevance will be considered in the review of the MHF Code of Practice. No Australian Standards are referenced.

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ACTIONS TO FACILITATE IMPROVEMENT The Standard is intended to achieve national uniformity in the regulation of MHF sites around Australia. This has not yet been achieved. Where the Standard has been adopted, the majority of the provisions have been implemented. Those jurisdictions still to implement the Standard have also indicated they will adopt the majority of provisions. In the majority of jurisdictions, legislation to implement the Standard has not yet been introduced and the requirements of the Standard are not adequately dealt with in existing legislation. The NOHSC Office has undertaken work in the following areas to facilitate improvement of the implementation of the National Standard.

where possible, assisting the jurisdictions in the implementation of legislation/regulations for the control of major hazard facilities based on the Standard;

facilitating the sharing of expertise and training material between jurisdictions and employers. The NOHSC Office facilitated a regulator-only discussion on implementation issues in August.

the development of useful performance indicators that will provide a measure of safety report milestones and safety outcomes; and

regular reports for NOHSC on progress. The NOHSC Office is conducting an MHF inspectors’ workshop for early 2005 to facilitate the sharing of expertise and lessons learned from undertaking complex investigations.

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CONCLUSION Progress towards implementation of the Standard and Code of Practice for the Control of Major Hazard Facilities in the jurisdictions has been slow and national uniformity in MHF regulation is yet to be achieved. Although the MHF Standard was agreed by all jurisdictions and declared in 1996, only two of nine jurisdictions have specific MHF legislation in place while one has given effect to the standard administratively. The high cost of major hazard facility accidents, such as the 1998 ESSO Longford Plant and the 2004 Santos Moomba gas plant incidents, in terms of lives lost, serious injuries and significant dollar losses, highlights the need for specific regulatory control of major hazard facilities. Unfortunately these incidents have not served to encourage jurisdictions to hasten the introduction of the standard, or operators to introduce improved safety systems in anticipation of the legislation. Both incidents highlight the need for operators to utilise the safety case/safety report regime as the single most important element of an effective, managed approach to prevent accidents at major hazard facilities. A review of the Standard and Code will be commenced in 2005/06. The review may serve to highlight the difficulties encountered in achieving national uptake of the Standard. The lack of uptake of the standard in all jurisdictions will hinder a comprehensive assessment of its effectiveness except in those jurisdictions that have implemented the standard.

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Attachment A

CONTEXT OF THE ASR The National Occupational Health and Safety Commission (NOHSC) has declared seven national priority standards that contribute to efforts being made under National Priority 1. Together, the standards are estimated to cover eighty percent of work related injury, death, and disease in Australia. The standards deal specifically with:

Manual handling (musculoskeletal injury) Plant Certification Hazardous substances Dangerous goods Occupational noise Major hazard facilities

To monitor the effectiveness of national standards, NOHSC developed a National Standards Continuous Improvement Program (the CIP). The CIP details a process for the monitoring and regular reporting of the efficacy of national regulatory material. An Annual Situation Report (ASR) is the main report under the CIP and is produced for each standard. Annual Situation Reports are expected to identify issues, innovation, and areas requiring improvement in national standards. Specifically, ASRs:

report the status of adoption of national material in each jurisdiction and where adoption has not occurred, report the rationale for not doing so;

compare key components of national material with standards maintained by major overseas OHS agencies;

document and analyse concerns of NOHSC stakeholders, and report new developments and emerging issues;

report national and jurisdictional performance against agreed indicators; and

give the status of referenced material

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Attachment B

HISTORY Following major incidents in Europe in the 1970s (particularly a chemical release from a plant in Seveso, Italy, exposing 37,000 people to dangerous chemicals and seriously injuring several hundred in adjacent areas), the European Community issued a directive (the ‘Seveso directive’) to control MHFs more rigorously. It is updated from time to time.

At the international level, the ILO has a Convention (C. No.174, the Prevention of Major Industrial Accidents Convention, 1993), which provides for the prevention of such accidents involving hazardous substances and limiting their consequences, where they occur. Australia has not ratified the Convention (there are only ten ratifications so far).

In 1991, NOHSC began to develop its National Standard on the control of MHFs, taking account of the ILO Convention and the Seveso directive. NOHSC was influenced by some serious Australian incidents (e.g., the 1989 Seven Hills chemical plant fire and the 1991 Coode Island fire). The Standard was declared in 1996. In 2002, a review of Schedule 1 of the Standard resulted in the declaration of the second edition (October 2002). The second edition contained a number of technical changes to Schedule 1 that are required to maintain consistency with dangerous goods regulations and the Australian Explosives Code (2000).

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