27. PROPOSAL FOR A DIRECTIVE ON SAFETY
AND HEALTH PROTECTION OF WORKERS POTENTIALLY AT RISK FROM EXPLOSIVE
ATMOSPHERES (ATEX) (7388/97)
Letter from Alan Meale MP, Parliamentary
Secretary of State, Department of the Environment, Transport and
the Regions, to Lord Tordoff, Chairman of the Committee
Thank you for your letter of 21 January.
I apologise for the delay in replying to you. My officials have
been in touch with yours to keep them informed of the delay.
You asked for information on (a) the costs to
industry of implementing current legislation on explosive atmospheres
and (b) the cost of enforcing that legislation.
On question (a), there are no specific regulations
in the UK dealing exclusively with the protection of workers potentially
at risk from explosive atmospheres. Current legislation covering
this area also covers other hazards, such as fire; storage of
highly flammable material, etc. It is not therefore possible to
separate the costs to industry associated with explosive atmospheres
from the overall costs of compliance with the broader regime.
For similar reasons it is also not possible
to give the costs for effective enforcement. Effective enforcement
takes a variety of forms, for example guidance and advice, inspection,
enforcement notices and prosecutions. Inspectors rarely visit
a company to deal solely with potentially explosive atmospheres
and records of their visits may or may not state the particular
Regulations discussed. Even in situations where regulations which
partly cover potentially explosive atmospheres are mentioned,
it would be impossible to apportion a set part of the costs to
I am sorry not to be able to give you more helpful
information on this occasion.
6 April 1999
Letter from Lord Tordoff, Chairman of
the Committee, to Alan Meale MP, Parliamentary Under-Secretary
of State, Department of the Environment, Transport and the Regions
Thank you for your letter of 6 April which was
considered by Sub-Committee B at its meeting this morning.
The Committee was disappointed that it has not
proved possible to answer the questions about costs in my letter
of 21 January. While we accept that it may be impossible to identify
precise costs, we have some difficulty with the notion that no
estimate can be madeparticularly given the previous emphasis
on costs issues.
Approaching this from a slightly different angle,
we should be grateful if you would say whom you consulted over
this matter and what reactions you received as to the costs and
practicability of the proposal.
29 April 1999
Letter from Alan Meale MP, Parliamentary
Under Secretary of State, Department of the Environment, Transport
and the Regions, to Lord Tordoff, Chairman of the Committee
Thank you for your letter of 29 April about
the proposed ATEX Directive. I am sorry your Committee found my
reply of 6 April disappointing, and for the delay in replying
to your letter. As Tony Lord's interim reply of 11 June to Roger
Morgan explained, we have been consulting HSE's policy experts
and economic advisers in an endeavour to provide as comprehensive
a response as possible. You will also now have seen my Department's
EM (OTNYR) dated 15 May on the European Parliament's amendments
which propose changes to the common position text agreed by Member
States on 22 December 1998.
Your letter of 29 April raised three issues:
costs, consultation, and practicability. I deal below with each
of these in turn.
With regard to the cost of enforcing current
legislation, HSE has looked at this again but there remain considerable
difficulties. The basic probelm is the co-incidence of hazards,
and therefore enforcement activity, at the workplace: the following
example shows why it is difficult to separate costs of protection
against explosive atmospheres from other costs. Workers in a factory
may be exposed to respiratory hazards from wood dust. These hazards
are covered by the Control of Substances Hazardous to Health Regulations
1988 (COSHH), and the protective equipment provided to deal with
these hazards would be covered by the Personal Protective Equipment
Regulations 1992 (PPE) and the Provision and Use of Work Equipment
Regulations 1998 (PUWER).
COSHH applies to the health effects of substances
(ie toxic effects), not to explosion hazards. However, wood dust
can also form a potentially explosive atmosphere. This means that
respiratory protective equipment would also have to be constructed
so that it does not ignite the potentially explosive atmosphere.
PPE and PUWER also cover such explosion protection. When inspectors
visit a workplace in these circumstances they are enforcing all
three sets of regulations (and possibly others for health and
explosion hazards) at the same time. Their activities on site
will be determined by the nature of what they find in each case.
So there is no ready way of separating the cost ot explosion protection
from providing "other" health and safety protection.
HSE's work recording database does not capture the time spent
on each particular hazard during contacts. The sophistication
required for a work recording system to break down activity in
this way would be disproportionate to the benefits.
The only readily extractable data is in respect
of costs for the work undertaken by operational specialist inspectors.
This data stems from recorded requests for their advice. The two
specialisms most likely to undertake work involving ATEX-related
legislation are process safety, and electrical and control systems
engineering. ATEX contacts, including the preparation and report
writing, made by these inspectors are estimated to cost HSE between
£160,000 and £390,000 per year at 1999-2000 prices.
But this reflects a small part of the HSE effort on this topic,
the bulk of which is carried out by the much larger population
of generalist inspectors as part of a wider remit, so would be
an underestimate of the total cost of enforcing current law.
I hope this example helps to clarify the position
regarding costs of current legislation. From an economic viewpoint,
I do not think that the absence of such information undermines
our appraisal of the EC proposals: it seems reasonable to regard
such costs as "sunk costs" and to base our appraisal
of the additional measures proposed by the EC on the additional
costs they might generate. I hope the Committee can agree
with this analysis.
You asked for further information on who was
consulted over this matter and what reactions we received as to
the costs and practicability of the proposal. HSE has consulted
informally throughout the progress of the directive with the TUC,
CBI, a range of industrial concerns and public authorities etc.
A list of its informal ATEX consultees is attached. I should tell
you that these consultees did not provide information on costs
of compliance with current legal requirements.
The consultees took the existing legislation
as their starting point and looked at the additional costs
ATEX is expected to generate. The HSE Regulatory Impact Assessment
(RIA) uses the current level of compliance with the existing regulatory
regime (ie all-inclusive legislation) as its starting point and
the detailed RIA indicates the anticipated additional costs of
ATEX. Calculating the assessment using such a starting point is
standard economic practice and follows Cabinet Office guidelines.
You should have received a copy of the RIA with the EM of 15 May
(an additional copy is attached for information).
Finally, practicability. Some consultees offered
opinions on the practicability of the proposal, though these were
mainly focused on cost. The general reactions of consultees at
the main stages of the directive were:
early European Commission textswere
unnecessarily prescriptive, onerous and some parts were impossible
to achieve (the texts were not risk based);
common position textwas a
clear improvement as it required action proportionate to risk,
and removed the more costly and prescriptive duties;
European Parliament amendmentsreintroduce
prescriptive duties not based on risk, increase costs of implementation
for little or no health and safety benefit, and raise some technical
concerns (particularly for European Parliament amendment 7).
I hope you and your Committee collegues will
find this letter helpful. I am sorry that I cannot provide direct
answers to all your questions but I hope you will understand why.
I am copying this letter to Jimmy Hood, Margaret
Beckett, Joyce Quinn, Ann Taylor, Sir Richard Wilson, the Clerk
to your Committee and the Clerk to the Commons European Scrutiny
9 Printed in Correspondence with Ministers,
4th Report, Session 1998-99, p 23. Back