Legal Matters - Explosives

Roy Bush, Her Majesty’s Inspector of Quarries from the Health andSafety Executive (HSE), recently told the annual British AggregatesAssociation AGM to expect an increased focus on blasting and explosivesmanagement over the following two years. Weightmans associate solicitor Glyn Thompson offers readers a refresher in the laws of explosion.

According to the HSE, munitions management is becoming – and please excuse me for this – an explosive issue right now.

With calls to protect the nation from explosives misuse on the one hand and an arguable case of insufficient incident reduction by the quarrying industry in this area on the other (or so the HSE is saying, but more on this later) avoiding the gaze of the regulator is going to take some doing for those using explosives over the next year or so.

At best, regulatory compliance in this area is as complex a process as any business community in the UK is likely to face, but add to that the fact that HSE has sought to move explosives squarely on to its enforcement radar and only one conclusion can be reached:

Review your systems relating to explosives management now if you want to ensure you avoid the courts. And a clear understanding of the legal obligations is the best place to begin.

The Call for Action

The Hazardous Installations Directorate (HID) – being the arm of HSE that governs explosives related activity – has stated that this area is a “key priority” over the next two years and, looked at objectively, they might be on to something.

With the incident figures for 2001/2002 being used as the base year from which incident reduction rates are to be assessed, HID set targets to reduce reportable accidents and incidents for all industries involved in the use of explosives.

Despite tighter regulation and greater and wider awareness of the need for proper systems of control, incident figures year-on-year have, where they are available, been regrettably greater than the base year.

In that year there were 14 reportable incidents. Since then there have been 15, 18 and 16 for the three subsequent years where figures are available.

The figures for the three years 2005/2006 – 2007/2008 are, as yet, unavailable but HSE’s re-emphasis of the importance of incident reduction in this area would suggest that initial analysis has revealed that the targets set of 14, 13 and 12 respectively for those years are unlikely to be met.

Speaking at this year’s British Aggregates Association (BAA) annual general meeting on Monday 12 May, HM Inspector of Quarries Roy Bush warned quarry operators that explosives would be top of the HSE agenda this year.

He said: "It is an area that has not been inspected for a while so we feel it is time to take a closer look. We will be looking for compliance…”.

Thompson: "A fresh modern terrorist threat has led to a re-emphasis of the importance of legislation.

The Law

Harking back to The Explosives Act 1875 which, in part, remains good law, the policing of the use of explosives is well established.

Modern times have naturally built upon that Act with the introduction of dozens of different regulations detailing particular obligations relevant to the full range of activities involving explosives – including manufacture, sale and distribution, transport, storage, use and disposal.

Those involved in each particular activity type should consider the regulatory compliance issues governing their particular operation carefully which, save for storage and use, are largely irrelevant to the quarrying sector.

For those in this sector, Part 5 of The Quarries Regulations 1999, which builds upon the primary obligations detailed in Part 2, governs safe explosives use.

And compliance with the particular obligations owed under those regulations would appear to be high on HSE’s agenda,

Roy Bush again: “Blasting specifications not meeting (part) two of the Quarries (Regulations and) Code of Practice and poor blast design that leaves faces difficult to access or clear are just two areas where the HSE will look at taking action.”

The Quarries Regulations 1999

Part 2 (Regulations 5-11) governing ‘Health and Safety Management’ and Part 5 (Regulations 24-29) governing ‘Explosives’ set out the detail of the obligations owed.

The ACoP which accompanies the Regulations highlights the importance of the general duty to facilitate ‘safe working’ owed under Regulation 6(1), describing it as the ‘underpinning requirement’ for all other obligations owed. Safe working is defined in the ACoP as specifically including the safe use of explosives.

Regulation 25(1)(a) lays down the substantive obligation in relation to explosives detailing that those involved in their use, storage or transportation must ensure that those activities are carried out ‘safely and securely’, being that they shall be properly managed, planned, co-ordinated and supervised. More particularly, those involved in explosives use are obliged to:

• Appoint a single Explosives Supervisor to co-ordinate explosives management, competent staff and only allow authorised persons to come into contact with explosives.
• Lay down, distribute, maintain and ensure proper understanding of and adherence to written rules and procedures for all explosives operations, for shot firers and for misfires.
• Use and provide appropriate equipment and storage facilities.

The explosives supervisor and competent staff

The Explosives Supervisor needs sufficient practical and theoretical knowledge and experience to conduct the explosives operations that go on at a site.

In particular, explosives supervisors need to be competent to carry out the following tasks:

• Blast calculation and design
• Ground vibration and air blast pressure
• Shotfiring

The need for specialist, fully trained and competent personnel is implicit and crucial. Moreover, methods must be in place to ensure that such people do not fail in their allocated roles.

Rules and Procedures

Regulation 10 lays down the obligation to set rules, operating procedures and instructions and to ensure that they are understood and complied with.

In relation to explosives, Regulation 25 dictates that rules and written procedures shall be produced for:

• shotfiring operations at the quarry
• appointing shotfirers, trainee shotfirers and storekeepers
• authorising other persons who will be involved with the storage, transport or use of explosives
• dealing with misfires, and
• ensuring, so far as is reasonably practicable, that such rules are complied with.

Records must also be kept of the appointment of any shotfirer or trainee shotfirer, and all misfires.

Equipment and storage facilities

The storage and security arrangements relating to explosives are subject to licence and/or registration which are beyond the scope of this piece. They are governed by The Control of Explosives Regulations 1991 and The Manufacture and Storage of Explosives Regulations 2005. The chief obligations include duties to:

• Prevent explosion (from storage)
• Limit the tent of an explosion should one occur, and
• Take steps to protect people from the effects of explosion

Commentary

The terrorist threat which has hung over the UK for many years developed and honed the law governing explosives into the arguably adequate pre-September 11th position it was in.

A fresh modern threat, however, and wider international assurances of security have led to a re-emphasis of the importance of legislation in this area and, in turn, new obligations through the introduction of new regulations.

While The Quarries Regulations remain largely unchanged – meaning most operators will feel secure in their current position – keeping abreast of the regulatory changes and out of the regulators scope requires deliberate action. It won’t happen by accident.

My advice is take a look at your systems NOW. The law has become broader, and more up to date, which might bring an air of trepidation. But be heartened, modern legislative drafting styles make the law easier to understand and implement.

Glyn: 0151 227 2601

LearningBox – Some Blasting Related Terms You May Not Know

Slurry explosives
First developed as a result of attempts to waterproof, strengthen and sensitise ammonium nitrate. Slurries are available in a range of strengths and can be pumped into place or loaded in plastic film or cartridges.

Nitrous fumes
Poisonous reddish-brown fumes which are produced when ANFO – a mixture of ammonium nitrate and fuel oil – containing insufficient oil is detonated and when nitroglycerine explosives burn instead of detonating.

Oxidizer
An ingredient in an explosive or blasting agent which supplies oxygen to combine with fuel to form gaseous or solid products of detonation. Ammonium nitrate is the most common oxidizer used in commercial explosives.

Smooth blasting
A delay blasting technique for cutting clean walls in excavations, in which closely spaced peripheral holes are fired simultaneously at least one delay period after the last charges of the main blast (also known as trim blasting).

Springing
A blasting method in which a succession of charges is fired in a blasthole to open up a chamber usually starting with the bottom of the hole This is now prohibited in quarries in the UK. The practice is also known as ‘chambering’.