Climate change and sustainability are becoming ever more pressing items on corporate agendas.
With governmental, regulatory, investor and consumer focus on these issues intensifying, there has never been a greater need for safety professionals to be at the table as organisations set and strive to achieve their sustainability targets, driving change at an operational level and ensuring reputational risk is minimised as new technologies are harnessed.
There are undoubtedly plenty of obstacles on the road to net zero, including cost, infrastructure etc, but it is crucial if we are to achieve these goals that health and safety considerations are not put up as a barrier. Instead, where health and safety considerations are properly integrated from the start into the development and deployment of the new and novel technologies underpinning our net zero initiatives, the potential for later delays and unforeseen consequences will be minimised.
Adapting existing laws to meet the safety challenges of net zero
The move to net zero will require new approaches and new technology but we already have in place regulations and guidance which can, with relative ease, be adapted to meet these new challenges without wholesale change.
Although we are likely to see some element of new regulation in coming years, the cornerstone of health and safety law in the United Kingdom remains the Health and Safety at Work etc Act 1974. The 1974 Act, now almost 50 years old, has more than stood the test of time and is often regarded as the gold standard of health and safety legislation across the world. Of course, the way it has been applied has changed over the past 50 years, but its flexibility has meant that it is possible for it to provide the underpinning of the radical change we are likely to see to our economy in the coming years.
Regulations stemming from the 1974 Act already cover myriad situations and are ripe for further adaptation to meet new challenges, whatever the nature of the project. Take, for example, the installation of offshore wind turbines, which must comply with the Construction (Design and Management) Regulations 2015 in the same way as a new development of housing.
The duties and obligations set out in these regulations and in the underlying legislation are well known and can be readily applied to emerging and innovative technology without necessarily needing to undertake a complete overhaul or introduce an entirely new regime – with the result that, provided consideration of these duties is front and centre of technological development, health and safety considerations should not delay transition.
The important point here is that while the underlying legislation may be almost 50 years old, fulfilment of its obligations (for example, to ensure health and safety in so far as is reasonably practicable), is judged by constantly evolving criteria, with technology-specific standards and guidance likely to emerge.
A good example of where legislation has been in place for many years but is directly relevant to the new world of net zero is in the control of exposure to asbestos. Although use of the substance was banned many years ago, its legacy remains and it is still present in a great many places – from the boiler houses of large institutional buildings to the lofts of people’s houses.
Left undisturbed, it can be largely ignored but this is where difficulties may emerge. The material is likely to be found in areas where old energy systems are in place and are going to have to be decommissioned. As a result, asbestos that would have been left in situ will now need to be removed.
There are also risks for larger scale energy efficiency projects where insulation is being installed in roof voids or obsolete oil or gas-fired heating systems are being stripped out. In older housing stock the presence of asbestos will be a real and present danger requiring careful consideration from the outset, and the need for expert removal in controlled conditions will have to be planned and priced into any project where this is going to take place.
Managing the safety risks from hydrogen
As the UK’s fledgling low carbon hydrogen industry develops, a combination of existing health and safety laws and additional, hydrogen-specific standards and guidance seems the most likely route to effective safety regulation.
However, as investment and projects are brought forward, policymakers are conscious that there is a need to overcome the negative public perception of hydrogen as not being ‘safe’. This seems to be based on media reporting and striking images of high-profile safety incidents often from decades ago. While the inherent natural properties of hydrogen do make it a substance which requires particular safety management, this of itself does not mean that hydrogen is any more or less safe than natural gas or petroleum-based products.
Also, the existing safety regulatory frameworks for electricity and gas are equally applicable for hydrogen, although they may require enhancement over time for hydrogen production, use and transport at scale. An important area for duty holders, including designers and engineers as well as safety practitioners, to consider will be to ensure the safe storage, transport and transmission of hydrogen as well as obligations to people, including trespassers, coming onto sites where a risk did not previously exist until this alternative energy source was adopted.
Of course, existing legislation may not be suitable across the board, and early consideration of health and safety issues and solutions will identify where new regulation is required, perhaps because the existing regime is too prescriptive to meet the new situation.
Take, for example, the development of autonomous vehicles and in particular driverless vehicles. While some parts of traditional legislation may well be adaptable to meet this, there are areas where new regulation will be required, particularly to cover employer liability for fleet vehicles.
Events too can precipitate wholesale change, as they did following the Grenfell fire tragedy. Viewed through the prism of decarbonisation, the cladding used on the tower block was intended to increase the thermal efficiency of the building. However, the events heralded a whole new regime for building and fire safety. So, while existing health and safety laws may be effective up to a point, they are unlikely to provide all the answers for the future, especially in a world where technology will continue to evolve rapidly.
Risk assessment is crucial
As ever, with emerging technologies risk assessment will be key. The discipline of taking a proportionate and pragmatic approach to risk assessment and mitigation measures is not new and the benefits of early engagement are well known. In these circumstances there is always the risk of ‘unknown unknowns’ and there can be no substitute for thorough research and understanding of the underlying science to inform risk management and mitigation.
Key too will be ensuring information is shared across sectors and industries irrespective of geography. In areas such as scaling up hydrogen as an energy source, we have already seen international development around an approach that will be necessary to accommodate the global supply chains that are required for generation, transport and storage.
In some areas, an understanding of real-world risks encountered today may go some way to informing those of tomorrow. In electric transportation, for example, much can be taken from the experience of the rail industry, where electrification is already prevalent and produces valuable illustrations of electrocution risk to workers and the public – either through faulty equipment or during installation or removal, as well as on duties owed to trespassers.
Those lessons should be used to inform risk assessments and mitigation measures as battery storage technology comes into the energy mix along with electric fleet vehicles, and their infrastructure as they are rolled out in the UK.
It is inevitable there will be challenges, not least in determining who will have the competence to carry out an effectual assessment of emerging technology risk or recognising that there may be costs that need to be priced into the development of projects. But those challenges are not insurmountable and should not be allowed to stand as an obstacle to innovation. New risks may require new thinking, but tried and trusted solutions and tools should not be forgotten.
Sean Elson is a lawyer at Pinsent Masons who specialises in corporate regulatory affairs and has expertise in health and safety matters. Contact him at: pinsentmasons.com/people/sean-elson
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