page 1 Thursday, 6th November 2008 (10.54 am) SANDRA CALDWELL (continued) Further examined by MR MARTIN Q. Good morning, Mrs Caldwell. A. Good morning. Q. I was asking you yesterday about the document OC286105 which was published in April of this year. I wonder if I could have page 4238 on the screen, please. I think I had just been asking you about the section headed, "Inspection, examination and maintenance strategy for users". In paragraph 22 I think we agreed that what is said is that: "It is important to note that although common industry practice relies mainly on pressure testing, this is not sufficient on its own, to ensure the continued integrity of metallic pipework." Then the next section is headed, "Action for inspectors". 23 states: "The ongoing integrity of buried, metallic LPG pipes is a matter of potential major concern in that any leak of LPG which is subsequently ignited has the potential page 2 to cause multiple fatalities or serious injuries." 24: "Where inspectors encounter bulk storage of LPG they should establish the presence, or otherwise, of buried, metallic pipes and take appropriate action to ensure that where reasonably practicable existing buried metallic pipework of unknown condition is rerouted above ground and protected against mechanical damage. Where this is not reasonably practicable, then either the pipework should be replaced with buried polyethylene pipes, a suitable propriety pipework system or where they remain below ground that they are subject to an inspection, examination and maintenance strategy as outlined in appendix C." Without going on to the details of that appendix or indeed the questions which are set out in paragraph 25, can we agree that what this section of the document published in April of this year did was no more than to remind inspectors of the elements of a regime which had been in existence one way or another for many years under different Codes of Practice or other guidance documents? A. Yes, it sets out. Q. I think the remaining parts of the document deal with perhaps more technical matters regarding enforcement and page 3 recording details and so on. Does that lead to the conclusion, Mrs Caldwell, that so far as the HSE is concerned the document which was issued in April of this year amounts to no more than a restatement of the requirements of which inspectors should already have been aware? A. I would answer that yes, but with the caveat that the purpose for doing so was also the latter parts of that OC, which was to set out also the enforcement expectation. So it was the background to that so that inspectors would have the whole picture. Q. If I then perhaps look at enforcement policy which begins at paragraph 27 on the following page, 4239: "If buried metallic pipework is not protected against corrosion, or the status of pipework and/or the protection is unknown, then prompt action should be taken. Further details are given in the paragraphs that follow." Again, with respect, that is no more than a restatement of what had been the position in principle for many years, is it not? A. It isn't -- sorry -- Q. It is. A. It is. I do apologise. But then it goes on to actually take people through the enforcement management model page 4 which is a way of taking you through a structured decision-making and this is something -- this model and the policy on which it's based was not in position at the time of the visits by Mr Ives, for example. Q. We agreed yesterday, Mrs Caldwell, that the status quo was not an option because, despite the existence of the various statutory regimes which we will talk about in a moment, that had not been effective in preventing circumstances such as the disaster which occurred in ICL. Is the creation of this document published in April 2008, in your opinion, a sufficient response by HSE to the concerns raised by the circumstances of the ICL tragedy? A. It's part of the response. It's not the whole picture. Q. So do you agree that it is not a sufficient response? A. I said yes because it is not part of the whole picture of other things we have been doing. Q. Could you go to HSE 5. If you go to what is page 26, please, of the document -- I am afraid I do not have the -- by arithmetic it must be 790 or thereabouts. Paragraph 37 is headed, "Impact of ICL explosion on FOD's [Field Operations Directorate] inspection strategy". 37 reads: page 5 "Following the explosion at ICL, a number of steps were taken in respect to inspection. First a programme of visits were made to targeted sites likely to have underground pipes. The purpose of these visits was to gain information to support the development of a guidance leaflet for users and allow HSE internal instructions to be updated. During the visits four improvement notices were issued." Second point: "Instructions to inspectors were revised (see chapter 5, paragraph 31); "a guidance leaflet for users was issued and distributed to users by the gas suppliers. This leaflet was also issued to inspectors." Is that a summary of the steps that have been taken by the HSE as a result of the ICL disaster? A. No, it is a partial picture. It's one aspect of a number of work streams that we have been pursuing and this was in particular the work stream looking at instructions to inspectors. But there is a lot of other work, some of which you were already hearing yesterday, that Mr Brian Fullam (sic) gave you the background and I can give you a lot more on, sort of, the number of strands that we have been doing since the ICL inspection. This was a response to a specific question page 6 that was asked of us in respect to the inspection strategy. Q. If we look at what is page 67 of the document, please, which at the bottom has paragraph 31 of chapter 5 which was referred to in the paragraph that we have just looked at. I think this was part of Mr Fullam's evidence, it is headed "Areas for further work within industry". Then turning on to the next page there is reference to the compelling need to address the situation of the ageing pipework infrastructure for certain LPG installations in a prioritised and managed and auditable way. It is vital that high risk pipework is addressed before they start to fail and that the short-term transitory problem can be addressed. Thereafter, there is more detailed reference to the research that is being carried out. Is that what you were referring to a moment ago as what Dr Fullam gave evidence about yesterday? A. Yes, but that is only part of the picture. So I mean, I am happy to expand now or later, if you would like me to, to explain the various work streams that we've got in hand. Q. Yes, I would like to ask you that but, before I do so, if we look at paragraph 32 in a document written in the page 7 latter part of 2008 -- I do not have an exact date but certainly in 2008 for the purposes of this Inquiry -- it is said by the Health & Safety Executive it is clear that there is a compelling need -- a compelling need -- to address the situation of the ageing pipework infrastructure for certain LPG installations. How long has that compelling need existed before this document was created? A. The need was established by the work that followed the ICL inquiry and that is a statement of fact. You cannot though get to that position without putting a lot of other building blocks in place and that is the work that we have been doing and I'm happy to expand on that to explain what has been done. Q. Thus far, Mrs Caldwell, what we know has been done is that a guidance note has been issued to inspectors which, by and large, restates what they should have known already; secondly, Dr Fullam apparently communicated last year (that is in 2007) with Calor Gas in particular to indicate the HSE's willingness to co-operate in the work that they were already doing. I am not aware of HSE having promoted any new regulations which might have addressed the situation. Is that right? A. That's certainly right but can I explain then what we page 8 are doing because otherwise I think -- Q. With respect, I am not asking -- I am going to ask you in a moment what you are doing. I'm asking about what we know you are doing -- A. At this point you may not know all that we are doing and I'm just trying to put that before you. Q. I am certainly going to let you do that but I am putting to you the fact what we know that you are doing occurred if, we take Dr Fullam's communication in 2007, if we take OC286105 occurred in 2008 and if there was a compelling need as a result of the events at ICL which took place in May 2004 and were explained by investigation by no later than the end of 2004, might it not be reasonable to ask whether the HSE are truly treating this as a compelling or indeed urgent matter given the time that has passed since? A. My answer to that would be to be able to have the prioritised replacement plan, to be able to get it to the stage that we can enforce and make it happen, there are a number of building blocks that needed to be in place and I'm happy to explain that. Looking back, I would accept there are times we may have been able to speed up some work but equally in this case we had to work with others to be able to move this forward because we were the ones that had all the page 9 information. We needed to work in partnership with the industry which we have been doing because, actually, they are the ones that have the information about their customers and where they are. It's information that we don't have. So I accept that if I looked back at different areas we probably could have speeded up some actions. Q. I do want to ask you about everything that has been done because I think it is important for the Inquiry to be absolutely clear about what steps have been taken by the HSE without the prompting of the existence of this Inquiry. The steps that I know about from the evidence that you have given first there was Miss Taylor's memorandum and we looked at that yesterday that was dated, I think, initially in October 2004. Is that right? A. Yes. Q. Secondly, there was its replacement by OC286105 in April of this year -- A. Yes. Q. -- which as you have agreed, merely restated what had been known beforehand. Thirdly, there is Dr Fullam's making contact with members of the industry in contemplation of the devising of a replacement strategy some time in 2007; is that page 10 right? A. Yes. Q. We know that the HSE has proposed no new regulations to seek to address the shortcomings that have been identified. You confirmed that a moment ago; is that right? A. I did. Q. Has the HSE prepared any paper which might be said to consider whether or not particular steps, including regulations, might be contemplated? A. We've not produced a paper but we have done the analysis. Q. When did you do it? A. We have been doing it over a period of time. Q. How long is the period of time, Mrs Caldwell? A. Since the ICL explosion. Q. Is that since the end of 2004? A. It would be after the end of 2004. Q. But how long after? A. I really -- I'm sorry, I can provide you with that information. I haven't got it to hand. Q. The purpose of my question, Mrs Caldwell, is to identify just truly how seriously the HSE have taken this matter. We know that because of the initiation of this Inquiry, the procedure which has been adopted, that many things page 11 have happened as a result by many people, including the HSE, but what I would be interested to know is whether or not, for example, the HSE began to review the legislation directly as a result and immediately after the events of May 2004 and, whatever the outcome of that might have been, were then in a position to give some informed consideration to that. Are you saying to the Inquiry there is in existence a paper by the HSE considering matters such as potential review of regulations coming about or which came about because of the events of 11th May 2004? A. I've already answered that and I said no, but we have made the analysis. I'm sorry, Mr Martin, I really am not trying to be obstructive here. I am trying to help. You've asked me specific questions about specific activities. I can also give you a number of the other work streams of how we've actually been trying to move this issue forward. I obviously will answer every single specific question you've got, but I think there are other activities that I could explain that would put some of those questions into context. Q. I am perfectly happy and will in a moment give you the opportunity to list all of the things that you would wish to identify but I am asking specific questions, page 12 Mrs Caldwell, because it may be important for the outcome of this Inquiry to know whether HSE were already initiating the sort of steps that may be the subject of recommendation following the evidence which has taken place or whether, alternatively, HSE did not appear to be doing anything particular until prompted into action by this Inquiry. That is why I am asking these questions. The question I asked -- and I am sorry, if I appear to be repeating myself -- is: is there in existence a document or series of documents which can indicate that beginning at a particular point in time the HSE began to give consideration to the possibility of review of the legislation, review of regulations or other specific steps to be taken to address the shortcomings that we now know about? A. And I've answered that question and the answer is no. In the oversight regime, we can see the results of our analysis there. Q. The oversight regime, I think, is HSE 1. That is a document prepared for the benefit of this Inquiry, is it not? A. It is indeed. Q. We have identified that there are no new regulations, whatever discussions or considerations may have taken page 13 place; we have identified the guidance documents through Miss Taylor's and then OC286105 and we have identified the work that Dr Fullam spoke about which I need not repeat. What other steps have the HSE taken as a result of the events of 11th May 2004 and when were they taken? A. I would like to go back to, firstly, obviously the explosion itself. We investigated and supported the prosecution, out of that identified what was the cause of the incident. We then wanted to establish whether that was a problem that was just associated with ICL or whether it was a wider issue and that is why we asked HSL to do the research. This was in 2004 and the results were in 2005, which indicated that the issue about -- excuse me, I think the point that Mr Rod Sylvester-Evans makes being out of sight out of mind was an issue. It was on the basis of that we then worked with the industry to prepare the leaflet which was then distributed to all the users. It was also at this point we started to work on the point about developing a replacement action plan and, as I outlined in my statement, this was based on the point of the experience that we've had in developing an action plan for natural gas. We've worked with the -- and to page 14 be able to do that we needed to put a number of building blocks in place and this is the point about having and needing to work with the industry because they had quite a lot of information that we actually needed. So we did meet in, I think it is round about 2007 with the industry to talk about the desktop exercise which the industry themselves ran, which was to start to identify how many buried underground pipes there might be and then we start coming into the work that Mr Fullam (sic) was doing which builds on the work that the industry was doing and commissioned more research from HSL to be able to build the model which we could then use to be able to target the replacement strategy. You heard from Mr Fullam (sic) that we're at the point of being able to have a model that allows us to do so. We are currently in next year's plans already building for an inspection campaign which will support the replacement campaign to raise awareness of that campaign and to ensure that both the users and suppliers recognise that we will use our enforcement powers to ensure the replacement plan has teeth. Q. Is that a comprehensive summary of all that has happened? A. That's a comprehensive summary of all that has happen in respect to LPG, but in parallel for some of the other page 15 issues about, for example, inspector training and other matters, we've had parallel activities going on which weren't LPG-specific but will deal with some of the internal issues that needed to be dealt with. Q. Just briefly again on Dr Fullam's communication with the industry, the evidence which Dr Fullam gave, as you may recall, is that he made contact with the industry in 2007 and of course we know from Mr Tomlin of Calor Gas they were already themselves initiating research. We also know incidentally that J Gas, a smaller enterprise but nevertheless involved in the events with which we are concerned, had devised its own direct replacement strategy which Mr Elliott explained to us. Forgive me, you may not have heard his evidence. Is it a reasonable conclusion that the industry, at least in the form of these two enterprises, acted much earlier than HSE in taking practical steps to devise their own and indeed in the case of J Gas to carry out their own replacement strategies? A. They certainly took action, yes, and that action is some of the building blocks on which we could build ourselves. Q. But they took the initiative. HSE did not go to Calor and say, "Look, could you start devising a replacement strategy". Calor themselves through Mr Tomlin, who is page 16 now a consultant, began the enterprise by the excavating of 500 installations and all the other work that he has done. So in other words they took the initiative on their own part, did they not? A. They certainly took the initiative and -- yes is the answer there. Q. I would like to move away from what has happened since to begin to look at the various provisions. I wonder if again you could have before you the ICL public Inquiry document Phase 2 which we were looking at a moment ago. The discussion in this document of the legislative regime begins on what I have as page 16 of the document. It probably will be 780. I just want to ask you a number of questions about this. It would be helpful if you have the document in front of you, as I am sure others will have, Mrs Caldwell, because I am going to take you to the provisions and they will come up on the screen separately. The first item of legislation, taking it in order of priority, is of course the primary legislation in the Health and Safety at Work Act 1974. In paragraph 35 the HSE makes reference to sections 2 and 3 of the Act and I do not think I need to take up your time asking you about that but I would like to ask you about section 6 page 17 if I could have it, please. It is on pages 576 and 577. Section 6(4) provides: "It shall be the duty of any person who manufactures, imports or supplies any substance ..." and what is thereafter provided is a series of four individually identified duties. The first is: "(a) to ensure so far as reasonably practicable the substance will be safe and without risks to health at all times when it is being used handled, processed, stored or transported by a person at work or in premises to which section 4 above applies." In practical terms, how is that applied to a substance such as LPG, which we know is explosive? A. Sorry, excuse me for a moment. I'm just reading it. (Pause) Well, first of all, in the case of LPG we need to have information about the substance. So there's issues about providing information and control, looking at information about how the substance can be used safely. I think you have heard from Calor and the other companies the steps that they take to provide that information to their customers. That would also deal with the safe handling, for example. The point about storage and transportation, the storage is, for example, the information that you've page 18 heard about the storage in the vessels themselves. The issue about transportation I think we'd be interested, in this particular case, in LPG because that is normally taken to apply to how a substance is actually moved from one premise to another. So what is it actually contained in. So if there was a road accident, what were the properties and the information that would need to be required. I wouldn't have applied the transported to the service pipes. I would have thought that the more applicable section to that would be section 3 of the HSW Act. Q. The first question I should perhaps ask is does subsection (4) apply to suppliers of LPG, for example, Calor Gas or J Gas about whom we have heard at this Inquiry? A. Yes. Q. So it is their duty to ensure whatever is required, so far as is reasonable practicable, what is provided in paragraph (a). The first is that the substance will be safe and without risks to health. In the case of LPG we know that cannot be achieved in the absolute because it is at least inflammable and is potentially explosive, each of which is a potential risk to health. Is that not right? page 19 A. I agree with that. Q. There is nothing can be done about the material if by definition the purpose of it is to be inflammable, if not explosive. It then says that that duty applies at all times when it is being used, handled, processed, stored or transported by a person at work or in premises to which section (4) above applies, which are non-domestic, basically work-related premises. So can we agree -- and I will be interested if we cannot -- that when the gas is put into the tank at the premises where it is being left stored in the tank, when it is passing through the pipework, the service pipework and the installation pipework to the appliance, and when it is being used in the appliance, which might be an oven or a burner of some sort, all of these circumstances fall within the activities referred to in paragraph (a). Do you agree? A. Sorry, could you just list your last points. I just want to be quite clear. Sorry, I'm thinking about something as well. Q. The expressions used are when it is being used, handled, processed, stored or transported, basically at work or in work premises. page 20 Can we agree that all of the activities involved at an installation such as we have been considering are covered by these activities; that is to say, the putting of the gas into the tank, the gas remaining stored in the tank, the gas passing through the service and installation pipework, the gas being used in the ultimate appliance, whether it is a burner or an oven. Of these activities, all of things that happen in that sequence of events, are they not covered by the expression, "when it is being used, handled, processed, stored or transported"? A. I think I would agree with all of that. I would have a question mark over the point about transportation and, as I said, usually that is applied to the safe delivery, sort of, from a manufacturer or supplier from their premise to the occupier. So I think there is a question mark on that. Q. I do not think there is any difference between us, Mrs Caldwell, because I think these words actually cover more than I described and certainly they would cover transportation in the lorry, the tanker and so on so I do not disagree with that. But focusing on what happens actually at the work premises to which this provision applies, we can agree that throughout its time on these premises until the gas is ultimately burned off in the page 21 process for which it is required, it is covered by paragraph (a)? A. It's covered by paragraph (a) with the qualification which is in paragraph (a) about what is reasonably practicable. Q. I well understand that. But that means that it is the gas supplier who is putting the gas into the tank and therefore is required to assume a responsibility under subsection (4) (a) for the gas throughout the time that it is on the work premises. Is that right? A. Sorry, could you state that again? Q. Yes. Because it is the gas supplier who assumes or is required to assume the responsibility covered by subsection (4) (a), then the gas supplier assumes that responsibility in respect of the LPG throughout all of its time on the industrial premises; that is to say, when it is in the tank, when it passes through the system until the point where it is ultimately burned off. A. Subject to the point what is reasonably practicable, yes. Q. Of course. That is part of the ultimate fulfilment of the obligation. The logic, is it not, Mrs Caldwell, that the supplier who is supplying to such premises can only take page 22 reasonably practicable steps to ensure that the substance is safe and without risk to health, the supplier can only do that if he assesses how the gas will be used, handled, processed or stored throughout that sequence of events. A. I'm trying to work this through because the usual route would be to provide information to ensure the substance can be used, handled safely, by the user and I think we have a specific area of interest here which is this application to a service pipe, the tank and the service pipework. Q. Just to deal with the point about providing information, if we look at paragraph (c) and (d) of subsection (4) -- in fact on the screen they are on the higher part but they from the second page -- these are the obligations imposed point supplier to provide adequate information about risks to health and safety to the user of the substance and (d) is to make sure that revised information is also provided. So the provision of information is a separate obligation to that which is imposed by paragraph (a), is it not? A. I think it is a separate and but it would be part of what might be reasonably practicable as well. Q. That is possible but only by way of a satisfaction of page 23 paragraph (a). Fulfilment of paragraph (c) and (d) by itself would not be enough, would it? A. No, I agree. Q. So whatever they might be, and they could include the provision of information, do you agree, does the HSE agree that the supplier must take such steps as are reasonably practicable to ensure that the substance is safe and without risk to health and can only do so by carrying out an assessment of the system, the entire system, into which the gas is to be delivered? A. I am not clear that it requires an assessment of the entire system. I'm just trying to think this through because I think what a supplier would be doing is providing the information on how the substance could be used and handled safely and also the information about when it shouldn't(?) be used as well as how it could be used. I agree on the aspect of storage and, as I say, I've got a question mark on the issue of transported because I think traditionally we would have taken the view, as I said, it relates to the transportation of the substance to the premise. But I equally take your view that it can be read to apply in the way that you are suggesting. Q. I think perhaps -- and I apologise if inadvertently I brought this about, Mrs Caldwell -- the word page 24 "transported" is a bit of a red herring because we are not actually talking about transporting in the conventional sense in the tanker, so please forget about the word "transported". I am content to put to you that the expressions being used, handled, processed, stored at the premises sufficiently cover all of the things that will be done with the LPG at an industrial installation. A. Yes. Q. We know of course that the person to whom the information is to be provided, obviously in an industrial context, has his own obligations towards health and safety and to use the substance safely under other provisions of the Act, not least sections 2 and 3 and, indeed, 4? A. And so does the supplier, yes. Q. Indeed. The supplier has towards his own employees and to others. What I am putting to you is a specific and discrete obligation, which we have agreed if this section applies is imposed on the supplier, which is to make an assessment of the particular installation to ensure that the substance will be safe and without risk to health so far as reasonably practicable. Is that right? A. I think that is right. page 25 Q. If we then look at paragraph (b), which is also a separate obligation imposed upon the supplier it is: "to carry out or arrange for the carrying out of such testing and examination as may be necessary for the performance of the duty imposed on him by the preceding paragraph." If it was not entirely clear from paragraph (a) itself -- although I suggest it was -- it is put beyond doubt by paragraph (b) because what that means is that the supplier must carry out or arrange for the carrying out of such testing and examination as may be necessary so that the supplier can ensure the substance will be safe and without risk to health at all times when it is being used on the particular premises in question. Is that right? A. Yes, that is right. Q. So in other words, Mrs Caldwell, the logical conclusion of a reasonable reading of this provision is that the gas supplier has an obligation in every case where he is proposing to supply LPG to industrial premises to ensure, so far as reasonably practicable, by the carrying out of testing or examination, if necessary, that it will be used safely and without risk to health on those particular premises. Is that right? page 26 A. The answer to that is yes. I think the area where I have a question mark on whether this is application to a particular premise or is it an assessment in the generic sense. Q. I had understood that we had agreed that it was specific to each individual installation because paragraph (a) says: "... used, handled, processed, stored by a person at work or in premises to which section 4 above applies." So it must, must it not, be a reference to the location, which the person in question working or the premises to which section 4 applies, being industrial premises? A. I think it does have that specificity, yes. Q. Has the Health & Safety Executive ever approached this provision in that way before now? A. Not in the way you that you're suggesting, no. Q. I think if we look at other regulations that you have referred to, in a sense the practical consequences of that are emphasised and if I go through in your paper in the detail in which you have provided them, or the HSE paper, the first regulations referred to are the Provision and Use of Work Equipment Regulations 1998. These begin at page 4569. Without going into any detail because I do not want page 27 to take time unnecessarily on this, Mrs Caldwell, can we see from the bullet point summary on page 17 of HSE 5, the first bullet point is that: "Where the safety of work equipment depends on the installation conditions. It is inspected after installation and before being put into service for the first time." Upon whomever that obligation is imposed, and it may well the occupier rather than the supplier in this case, nevertheless it is location-specific, is it not? A. Sorry, I'm just catching up with you, Mr Martin. Q. I do beg your pardon. I just read to you the first bullet point at top of page 17 of HSE 5 which is under the heading of the "Provision and Use of Work Equipment Regulations". A. Yes. Q. I am not suggesting that is an imposition on the supplier. All I am putting to you is that is clearly a site-specific, location-specific obligation. Next the Management of Health and Safety at Work Regulations 1999. They begin at page 4501. I would like to ask you about Regulation 3 which is on page 4503. This is under the heading of "Risk assessment" and it states: page 28 "Every employer shall make a suitable and sufficient assessment of (a) the risks to the health and safety of his employees to which they are exposed whilst they are at work and; "(b) the risks to the health and safety of persons not in his employment arising out of or in connection with the conduct by him of his undertaking, for the purpose of identifying the measures he needs to take to comply with the requirements and prohibitions imposed upon him by or under the relevant statutory provisions." We know that that imposes an obligation to create a risk assessment on the individual industrial occupier about all activities which might well include LPG. Indeed that was one of the elements of the prosecution that ensued as a result of the events we have heard about. A. Exactly, yes. Q. But can we agree that it would also apply to an employer who was an LPG gas supplier? A. Yes. Q. The obligation is twofold: first, putting it shortly, to secure the health and safety of his own employees -- that would be the persons working in the transportation, if you like, of that element, the tanker drivers, the people filling the tanks and so on -- page 29 A. That's right. Q. -- but: "(b) the risks to the health and safety of persons not in his employment arising out of or in connection with conduct by him of his undertaking." If his undertaking is the supply and delivery of LPG, then clearly that could include those who were in or on the premises to which the LPG was being supplied? A. Yes, I agree with that. Q. How far does the undertaking of an LPG supplier extend? Putting it just clearly as one option, does the undertaking extend only as far as the pipe into the tank when it is being filled or indeed the tank itself, if the tank happens to belong to the LPG supplier but not beyond that? A. Sorry, I was distracted. Sorry, could you repeat that, Mr Martin. Q. How far does the undertaking of the LPG supplier extend in practical terms? A. In practical terms I would say it would cover the service pipework. Q. It would cover? A. The service pipework. THE CHAIRMAN: Mr Martin, forgive me, are you suggesting that "undertaking" in regulation 3(1)(b) means the page 30 actual physical plant and equipment, such as tanks and pipework, or does "undertaking" mean the business that the employer runs? I mean, I can see that you could use the noun conduct of an undertaking in the sense that British Telecom supply a telephone service. I do not think you would use the noun conduct in relation to an actual piece of equipment. MR MARTIN: My Lord, I do apologise I did not realise my Lord was putting the question to me. My Lord, I am really exploring without necessarily intending to put a particular proposition other than to try and help the answer to the witness. I would genuinely like to know what the HSE regards as the undertaking and I entirely accept, my Lord, that if the way in which I characterised the question or characterised the undertaking in the question is unhelpful then I do not really mean to do that. I am trying to discover, Mrs Caldwell, what is the extent, in practical terms, of what the HSE regards as the undertaking referred to in that risk assessment obligation. I hope that perhaps clarifies the position, my Lord, by way of the question. A. Yes and I'm taking the undertaking to mean supply of page 31 LPG. Q. But, again, I hope my Lord will forgive me if I am then going into it in a way that is not helpful. How far does that go? A. I think that might have to be case-specific. I think there will be some doubt here because we've got overlapping responsibilities. Q. Again, I hope without being unhelpful, is it conceivable, as one approach to this, that if the LPG supplier as an element in his undertaking is providing the gas which is going to be used ultimately by the industrial user for his particular purpose, is it at least conceivable that the LPG supplier, who knows that is going to happen, should include the circumstances in which the gas exists up to the point where it is burned for its ultimate use? A. (Pause) I'm hesitant because I'm actually trying to think this through. I think there is genuinely a question mark at where the supplier's responsibility stops. Obviously, the user of the premise has the responsibility for the whole premise. So rather than making judgment on the hoof, I would point out I think there is a question mark there about where exactly the user's responsibility will stop. page 32 Q. Forgive me, I think I am not actually asking about the user but -- A. I'm sorry, the supplier. Q. The user has his own responsibilities. There is no doubt about that. A. Sorry ... Q. In other words -- and I do not, I think, I need to push this further, Mrs Caldwell, because your willingness to consider this issue is helpful, there might be an argument that a supplier can justify the extent of his undertaking and thus the extent of his obligation under this provision as going only, say, as far as the tank. That is an argument he might have. A. That is an argument but I wouldn't agree with that argument. Q. But the alternative is if he actually carries out a risk assessment which considers the circumstances right up until the ultimate use by burning of the gas, then he will certainly fulfil that obligation, assuming he does it properly, and indeed he might go beyond the obligation but he could not be criticised were he to do that? A. Exactly so. Q. The next set of regulations is the Pressure Systems Safety Regulations which begin at page 4546. I do not page 33 want to take up time asking you a lot of questions about this, but, as I understand it, in the context of LPG, such as we are discussing here, the obligation on the supplier probably extends only to the vessel itself and the specific examination requirements of the vessel. Is that right? A. Yes. Q. I ask this question not because I am going to suggest one way or the other: would the HSE regard the Pressure System Safety Regulations (the PSSR) as applying to service and/or installation pipework at an industrial-type installation? A. I don't think I can answer that question but I will provide you with ... Q. That is helpful. It is not a very significant point but if that could be done that would be helpful. Next, the Dangerous Substances and Explosive Atmospheres Regulations which begin at 4445. The bullet point summary from HSE indicates that these Regulations include requirements for a suitable and sufficient assessment of the risks from dangerous substances, including LPG. If we go to page 4449, please, I understand this is a reference to the risk assessment provision under Regulation 5. page 34 A. Yes. Q. It states: "(1) Where a dangerous substance is or is liable to be present at the workplace the employer shall make a suitable and sufficient assessment of the risks to his employees which arise from that substance. The risk assessment shall include consideration of various elements." I think we can agree that of course is an obligation on the employer at the particular workplace. That would not, so far as I can see it, apply to a supplier. A. Exactly so. Q. But if we look at the risk assessment obligation, item (h) is and it says: "The risk assessment shall include consideration of: "(h) the scale and the anticipated effects of a fire or an explosion." What I want to ask you here about -- and it is departing perhaps for the moment from the issue of suppliers -- in a situation where an employer is a user of LPG in the circumstances with which we are familiar, should that employer make a risk assessment taking into account the possible consequences for the building of a fire or explosion arising from the LPG? A. If I can start, I think in general terms, that is page 35 applied to the process activity. Whether it would extend to the building, again I would have to actually take advice because we certainly don't require or, sort of, inspectors wouldn't take that approach, for example, to the supply of natural gas to a premise. So again, I think I would have to seek advice on that, Mr Martin. Q. I am content that you should do that but of course if we look at paragraph 1 of Regulation 5, it proceeds upon the premise that where a dangerous substance is or is liable to be present at the workplace, and assuming LPG or indeed natural gas to fall within the category of a dangerous substance, all that is necessary to trigger the obligation is that it is either present or liable to be present at the work place which, on the face of it, both the LPG and the natural gas will be if they are being used by the enterprise? A. I think you are right on the face of it. As I say, I didn't want go into territory -- I think I need to get specific advice for you on that matter. Q. I take the point that you are not giving a committed answer to my suggestion and I accept that, but whatever is required by way of risk assessment that is something which an HSE inspector would be entitled to see as part of his inspection duties at the specific premises? A. Yes, the inspector would ask. page 36 Q. So, in other words, if it was an obligation on the employer applying this provision to contemplate the consequences of an explosion, including the consequences for the building in which the enterprise took place, an inspector could say on a visit, "I wish to see your risk assessment and I wish to see what it says about the consequences of the explosion"? A. With the caveat you have already made, my answer to that would be, yes. Q. Putting it the other way, whatever this requires, the inspector would be entitled -- A. Exactly. Q. -- to demand it. And presumably, if not satisfied to the appropriate extent, can recommend enforcement action? A. I'm hesitating here because for enforcement action they would have to determine what is the risk. Q. I tried to contemplate that in my question, in appropriate circumstances? A. In appropriate circumstances. Sorry in appropriate circumstances, yes. Q. I am simply seeking your confirmation that if otherwise appropriate and justified, it is a situation in which an inadequate risk assessment could lead to enforcement action? page 37 A. Yes. Q. On the next page of HSE 5 there is reference to the Gas Safety Installation and Use Regulations. I do just need to ask a few questions about those because they have featured in the evidence of this Inquiry perhaps to a greater extent than the others. We are aware, as you explain in the paper, Mrs Caldwell, that in principle or perhaps to a large extent these Regulations apply to domestic and certain commercial premises but do not apply to industrial premises? A. That's correct, yes. Q. There are exceptions, for example, Regulation 37 which is the call-out obligation or the obligation to turn out on the supplier if there is a report of a leak which applies generally to LPG installations. By and large the other Regulations apply not to industrial premises. Can you explain why the GSIUR were, to that extent, not applied to industrial premises? A. I can in generic terms. I haven't got any specific paperwork I could refer you with. But the Regulations were developed to actually manage the risk associated with the supply and installation of gas for the domestic area, in particular were particular concerns about, for example, the number of deaths from carbon monoxide page 38 poisoning. Therefore, that was the scope of the Regulations. I think the other matter is on the domestic side literally there were not any regulations but if you look at the commercial side and, sort of, what we've been going through already, there were already a whole number of regulations that were applied to the commercial side and I think that was the basis of which the exclusion -- why the exclusion to the Regulations was there. Q. Thank you for that because I think it has been suggested that the reason why the GSIUR were not applied to industrial premises was, as you have just explained, because there was a need for something in domestic premises which were not covered by the Health and Safety at Work regime otherwise and there were already regulations which applied or other obligations which applied to industrial premises? A. Exactly so. Q. But perhaps repeating a proposition I put to you yesterday, what we know in the situation which has been explored by the evidence at this Inquiry is that the regime which applied at industrial premises did not achieve the result was desired at Grovepark Mills because it did not prevent, however that happened, the escape of gas with its lethal consequences. page 39 A. We've agreed because compliance with the law is down to individual duty holders. Q. If we go to what has been suggested at this Inquiry by various parties, as a matter of principle would the HSE accept that the GSIUR might with benefit be applied to industrial installations as well as the ones to which the Regulations already apply? A. I would say yes, but with a caveat: not the wholesale application because there would be a genuine concern of an application that you could get duplication and tensions because, as I say, we're not starting with a clean sheet of paper; we've already got other legislation in place. So the wholesale application but there are sections that I think would be helpful to be applied. For example, the competent person area. Q. Before we get to the specifics, Mrs Caldwell, I am assuming that duplication of regulation by itself is not a problem because, for example, having looked at the different sets of regulations that we did a few moments ago, we've identified some that were obligations on suppliers, some that were obligations on employers but in circumstances where each of these obligations would exist simultaneously over the same installation? A. This is a different type of duplication. I call that page 40 sort of overlapping responsibilities. So there are responsibilities on the supplier and responsibilities on the user and in the same circumstances they both have responsibilities. What I'm talking about in the sense of duplication would be possible duplication with, for example, the pure regulations; so with the actual requirement of regulations. It can be dealt with by simply -- as I say, an approach would be not the wholesale application but the application on those parts that is thought to be sensible to enhance the existing suite of regulation. Q. I want to test that anxiety about duplication. The core regulations, that is the Provision and Use of Work Equipment Regulations, please correct me if I am wrong, but they would apply to workplace situations which could exist both on industrial premises and commercial premises, could they not? A. I'm not making any distinction between industrial and commercial. They are the same -- Q. Forgive me, that is why I am exploring this. The PUWER Regulations would apply to equipment, the provision of equipment, both in an industrial workplace and a commercial workplace? A. I see the point you are making, some of the premises are already within the Regulations. page 41 Q. Thank you for that. We know that GSIUR already applied to commercial premises. So there is, to some extent, a practical overlap, using that word simply descriptively, between GSIUR and PUWER already. A. What I am thinking about is if you think of those premises which are already there, they have characteristics that are similar to domestic premises. We're talking about the accommodation of people and the sleeping. I think the point I'm making is the application to these Regulations, for example, the application of the parts of the Act -- and I haven't got it before me at the moment -- that deal with appliances so starting to apply -- these regulations were designed to deal with things such as people's boilers and their cookers, not to deal with a blast furnace in a steelworks and that's the area of my concern. Q. I think it is perhaps beyond the ability of this Inquiry to go into these fairly technical matters because we are looking, at the moment at least, at matters of principle. I think another distinction that has been highlighted by previous witnesses is a distinction which might be made between LPG pipework which was in liquid phase rather than vapour phase because of course the GSIUR, because they are essentially domestic premises, page 42 it will always be the lower pressures and thus will always be vapour phase, so there are these distinctions to be made, Mrs Caldwell. That is acknowledged thus far. So far as the principle is concerned, do I take it that your evidence, obviously as a senior officer of the HSE, to this Inquiry is that the HSE would support the extension of the Gas Safety Installation and Use Regulations 1998 to an appropriate extent and subject to detailed considerations to LPG installations at industrial premises? A. Yes, and we've said that in our oversight regime. Q. Without going into the details -- and you mentioned the issue of competent persons, which I will come to slightly separately just in a moment -- would you have a view on the physical extent to which the GSIUR might be applied to industrial installations, because at the moment we are aware for the very reason you just explained about the domestic situation that they cover the entire installation from tank to appliance. We have had different views from different witnesses as to whether or not, if they were to be applied to the industrial situation, they should apply to the entire installation, including the appliance; whether they should apply to the tank and the pipework, perhaps up to page 43 the appliance, that is to say the service pipework and the installation pipework; or whether there should be an application of the Regulations only up to the emergency control valve, that is to say the tank and service pipework. Recognising again that this will be a matter for detailed consideration, does the HSE have any view about which of these would be more beneficial as an approach to be looked at? A. Could you just outline the points again, sorry? Q. I do apologise if I put too much in. We know that in the domestic sphere the GSIUR applied to the entire installation up to the appliance, not least, as you have just explained, because there is no other particular regulatory control because it is not a Health and Safety at Work regime environment. So we know it applies to everything. Suggestions have been made in the evidence of various parties to this Inquiry about different approaches if the GSIUR were to be applied in the industrial situation which might be the same as domestic, the entire installation including the appliance; might be the entire installation, including both service pipework and installation pipework up to the appliance; or might simply be the service pipework page 44 up to the emergency control valve. Given that we are talking about the principle of looking at this and without exploring the detailed consequences, Mrs Caldwell, does the HSE have a view on which of those would be preferable? A. The HSE, as a whole, doesn't have a view but I'm happy to give my view, if that is helpful. Q. Please do. A. My view would be different for domestic as opposed to industrial and commercial. On the industrial and commercial side, I think it should remain the responsibility of the duty holder to have responsibility for the service pipework because they are in charge on a day-to-day basis of the undertaking and we can make an assumption that they are actually more informed than a domestic person would be. On the domestic side, I can see some value of aligning the responsibilities in respect to the supply to domestic appliances to that of natural gas because (a) domestic householders do not have a technical background and, despite the work that the industry does in providing information to householders, I would suspect that most householders would believe that the LPG supply is similar to the natural gas supply. Q. I am not sure -- entirely my fault -- I really page 45 understand that answer in the context of the question. Let me ask it again. I will try to put it as a simple proposition. Certain witnesses who have in principle supported the application of the GSIUR to industrial premises have said that it should be applied only up to the emergency control valve; that is to say, to the tank, the vessel, to the equipment on the vessel and to the service pipework -- A. I would agree with that. Q. -- up to emergency control valve. Yes, I think you did use the expression "service pipework" in your answer. I suspect you meant installation pipework, which is the pipework between the emergency control valve and the appliance. A. Yes. Q. That, as I understand it, is because in an industrial situation where the Health and Safety at Work regime applies to the occupier, there will be other controls which can be levelled in that respect. A. Exactly. Q. The shortcoming or the potential shortcoming of that approach might be to suggest, Mrs Caldwell, that we already know that the regime of the Health and Safety at Work Act which has applied to LPG installations page 46 generally in industrial premises has not been sufficient to prevent events such as those with which we are concerned, and not to apply the GSIUR beyond the emergency control valve (that is to say, within the industrial premises themselves) is simply to continue over a more limited extent the shortcoming which already exists; that is a lack of focussed gas-related regulation of LPG pipework. Is there any practical reason why, because of the shortcomings which have been identified, the GSIUR in an industrial location should not be applied right up to the appliance? A. I can't -- the answer to that would be no ... sorry, I'm answering in the affirmative to your question. Q. Thank you for that, I think that is clear. This is clearly a matter for detailed consideration because we are aware of the different characteristics not least between LPG systems in one form or another but also with natural gas which is also covered, the existence of meters and so on, all sorts of different things, but I think, I hope it is clear to the Inquiry, what your position is on the general approach. So far as competent persons, just turning lastly to that under this heading, it has been explained that the extension of the GSIUR to industrial premises might have page 47 practical difficulties because of the limited number of installation engineers who could fulfil the necessary requirements. We have also heard, however, that although there are various different regimes, accreditations, certification schemes and the CORGI scheme and so on, people who may have different qualifications on paper, whether LPG or natural gas, in effect have the same experience and are certified in the same way. Does the HSE have any difficulty with an approach which would attempt to unify these different regimes so LPG engineers could work on natural gas and natural gas engineers could work on LPG, assuming the training was sufficient and the activities were similar? A. I think based on they have the right competencies I couldn't see any difficulty with it. Q. You have mentioned in paragraph 47 of the paper that the HSE has entered into a ten year contract with Capita to provide a replacement registration scheme for gas installers which, as we understand it, will replace the CORGI scheme and potentially various others. Obviously time is a little short until 1st April when it is initiated. Would the HSE be prepared to indicate to this Inquiry that as part of part of the creation of that regime the very point you have just page 48 been discussing could be addressed; that is to say, a unification or rationalisation of equivalent accreditation regimes? A. It could be addressed. It may take time but it could be addressed. Q. So far as the Gas Safety Regulations are concerned, we know that they impose certain requirements about the qualification of those who create installations and those who modify or repair or work on them. Before we move on can we agree that the GSIUR do not provide any sort of regular inspection or verification regime for existing installations, assuming they are not altered or modified or repaired in the meantime? A. That's right. Q. The last set of regulations that you have refer to is Pipeline Safety Regulations which begin on page 4523. I do not think I need to ask you any specific questions about these but is it fair to say that they may, to some extent, impose obligations on non-domestic LPG users which are incidental to what we are talking about but not directly focused on the potential shortcomings of the pipework so far as suppliers are concerned? A. That's right. Q. I want finally just to ask you about one other set of regulations which are the Workplace (Health, Safety and page 49 Welfare) Regulations 1992 and these begin at page 4888, please. Could I have 4892, please. You will be aware that Mr Sylvester-Evans made specific reference to what is now Regulation 4(a) which was introduced in 2002. It is headed "Stability and Solidity". It provides: "Where a workplace is in a building the building shall have a stability and solidity appropriate to the nature of the use of the workplace." Is it HSE's opinion or your opinion, Mrs Caldwell, that that requirement would be imposed upon a person responsible for a workplace which was in a building in connection with the use of LPG in that building? A. Yes. It's a qualified yes. The reason why I say that is that in practice how these Regulations are actually sort of managed by inspectors in workplaces when they come across it, it's associated with the process risk and not a utility risk. So, for example, we would be looking at -- if you've got, just to give you an example, woodwork dust is known to be explosive and so you would be looking for certain types of dust collection equipment to have an explosion vent or relief and we would be looking to ensure that that explosion vent or relief is situated that it, for example, doesn't blow out windows or has another page 50 detrimental effect whilst you are trying to correct one risk you introduce another. Q. I understand that but my question was of course a workplace, a building in which LPG or an explosive gas was being used as part of a process, would that equally be something which might fall within the obligation imposed by Regulation 4(a)? A. Yes. Q. We have already looked at risk assessment obligations which might apply to occupiers, might apply to suppliers, but would I be right that if it was a situation in which Regulation 4 (a) applied then the employer or the occupier would be the person responsible for fulfilling the obligation? A. Yes. Q. Does that mean then that given that these are regulations made under the Health and Safety at Work Act they would be something which inspectors of the HSE would be entitled to verify? A. Sorry, could you repeat that? Q. Given that the obligation that we are discussing is one under the Health and Safety at Work Act -- perhaps I put the question badly -- would we agree that fulfilment of that obligation would fall within the regime enforced by HSE inspectors? page 51 A. For some aspects. There is a restriction in the Health and Safety at Work Act at I think it is section 23 which indicates that an inspector cannot ask for actions that are over and above what would be required by building regulations and I think this is the area where there is, in a sense, a split responsibility because those responsible for building regulations actually have also responsibilities about the stability and solidity of buildings and, in fact, have greater powers than we do in respect to dangerous buildings, for example. Q. I understand all of that and I am not in a sense suggesting there is not a responsibility on those acting under the building control regime, but what I am suggesting, Mrs Caldwell, is that separately this obligation imposes a duty on employers and occupiers to ensure the stability and solidity of a building appropriate to the nature of the use and if that is an obligation imposed on the occupier or employer then, given it falls under the Health and Safety at Work regime, inspectors have the right to enforce it. A. Yes. Q. Are you aware of any particular examples of inspectors seeking particular information from occupiers in regard to the fulfilment of this obligation? A. In a variety of areas. I have given you one example, page 52 which is in the case of woodworking dust. Similarly I can think of others, in flour mills, in premises that may have cast iron columns and the use of forklift trucks. Q. So there would be nothing inappropriate about an inspector in relation to a workplace in which LPG was used requiring the occupier, the employer, to demonstrate that he had satisfied himself that the stability and solidity of the building was appropriate to what was going on there? A. No. Q. Can we agree that would be quite distinct from whatever obligations a Building Control Officer might have so far as satisfaction of the Buildings Act? A. Yes. Q. Let us suppose that an inspector went to particular premises and was satisfied that LPG was being used there but he was not satisfied that the employer had taken any steps to ascertain that the building had a stability and solidity appropriate to the use of LPG, given the potentially explosive consequences of LPG. In appropriate circumstances, ultimately, could that lead to enforcement action? A. I think that's the logical process, yes. Q. Mrs Caldwell, I want then to turn to the last chapter of page 53 the questions I have to ask you, which is to look at the recommendations made by Mr Sylvester-Evans and the HSE's response to these. If I could ask you, please, to have Mr Sylvester-Evans' report in front of you. That is the second report which begins at page 9674 and the recommendations of course appear throughout the document but they are summarised beginning at page 9727. I think for convenience we can begin to look at them there. You should also have the HSE's response to these, which is HSE 2 and beginning at what is page 5 of that document which I am afraid I do not have the -- A. It's all right; I have got them. Q. You may also want to have to hand HSE 1, which is the oversight document, which I am quite happy if you wish to refer to it at any particular point. If I take the substantive recommendations I know there are various comments earlier about other parts of the report. I am not going to take up time on that for the moment, if I may. I am dealing with the substantive recommendations which begin at the bottom of page 9727. The first recommendation is: "Wherever possible, the number of interfaces between responsible parties should be reduced to the minimum so page 54 that they can be managed actively." Your comment is that: "The HSE is not entirely clear what suggestion is being made but supports the position that all interfaces between parties must be managed actively and that each party must be fully aware of their respective duties." Just pausing there, is that at least in part because of what you mentioned earlier and what is in paragraph 2.3.5 of Mr Sylvester-Evans' report, which is the HSL research which revealed a considerable degree of lack of understanding of responsibility, levels of maintenance and so on in respect of LPG pipework? A. Sorry, I'm trying to get the actual question. I do apologise. Q. The end of the sentence I have just read out: "HSE states each party must be fully aware of their respective duties", is in part that because the HSE is aware, as a result of the HSL research which Mr Sylvester-Evans has referred to at paragraph 2.3.5, that there is a poor level of understanding of that thing? A. Yes. Sorry, Mr Martin, could I just make an interjection because it is intended to be helpful and hopefully also to be able to move through the recommendations at page 55 quite -- increase the pace that we might be able to move through the recommendations. Could I just make three very brief points? Q. Please. A. The first is that I think it was very helpful in the evidence that Mr Sylvester-Evans gave, I think, at the start of this week, where there was a dialogue between yourself and he on the issue of whether we were seeking legislative solutions and I think that dialogue made it quite clear that that wasn't necessarily the case and it was about regulating conduct of people, so this point about increasing awareness and increasing compliance with existing legislation. I think the second point I wanted to make was that we did look at these recommendations from the perspective of a regulator with a possibility it might be legislation you wanted or were suggesting might be the appropriate course of action, but we also looked at it from the point of view of not just is it a good idea but how might it actually be implemented because that is a very pertinent point because sometimes you can have recommendations that are a good idea but the means to get actually into place can be difficult. I think that conversation that was had at the beginning of this week has really helped because I think page 56 it illustrates that most of the recommendations are good practice or best practice recommendations which we would be able to support. But there are some areas where we still have some difficulty. So I just wanted to put that into context because I think it might be helpful to you. Q. Thank you for that because it was something I was going to ask you later but perhaps if I do it now it would be helpful. Thinking of the approach which is being put forward by Mr Sylvester-Evans and just taking it a step at a time and I am just asking about the principles, the very thing you just referred to yourself, the first is: it is seen as an advantage to take or it is seen as a benefit to rely upon as much as possible the existing statutory regime and to minimise the need for additional formal regulations. So, in other words, if you can create a regime which relies upon a particular obligation it might be in one of the regulations we have already looked at, and simply makes more specific what ought to be done without the need for any amending regulations, then in principle I think we agree that is a good aspiration if it can be achieved? A. I agree. Q. In other words, the minimum of alteration of regulation. page 57 Secondly -- and I think this was based upon questions I asked Dr Fullam -- as a matter of principle, the HSE regards it as appropriate to rely on Codes of Practice as a means of securing best practice in fulfilling legislation, without the Code of Practice having to become an approved Code of Practice -- and we know the distinction between those -- but perhaps Codes of Practice such as we have seen with a preface from the HSE simply to make clear what their purpose is? A. Yes, that's ... Q. Therefore, if a regime can be devised which takes advantage of existing regulations but is a bit more specific about what employers and what suppliers ought to do in order to fulfil their obligations under the existing regulations, then do I understand the HSE would be supportive of that being done by codes of practice promulgated by agreement in the way that we have heard? A. Yes, and it may be augmented by additional guidance from ourselves. Q. Absolutely, because we know, for example, that the LPGA or UKLPG guidance is directly at suppliers? A. Exactly so. Q. But there would also be guidance directed at users who of course are not part of that industry. A. And also the other territory is where guidance is being page 58 asked for on the responsibilities of either the user or the supplier. As the regulator, I think that guidance should come from ourselves. Q. Lastly, what we are looking for, given the shortcomings that we have already discussed and I think agreed about, are clear practical steps which can be seen by those who need to take them and they can act upon them and thus fulfil ultimately their statutory obligations but likewise seek to ensure health and safety as best that can be done? A. Exactly so. Q. If we then go back to the substantive recommendations and the issue about minimising the number of interfaces, as Mr Sylvester-Evans indicated, there are different ways in which the interfaces can be referred to but I want to ask about the interfaces in relation to the physical installation itself. We know from the evidence -- and I put it in an extreme situation -- that the vessel and potentially the offtake valve may belong to the existing supplier because under his contract, Calor in particular, that may be all that he takes responsibility for. Because of the contract with the previous supplier, a length of the service pipework between the tank and the first stage regulator may, in a particular case, legally at least in page 59 theory still belong to the previous supplier. The remaining pipework (that is to say, downstream of the first stage regulator) may belong to the occupier who of course may not be the ultimate user of the gas, again, in an extreme situation, who may own some of pipework further downstream and probably the appliance. That is an extreme and perhaps hypothetical example but it suggests a number of different parties having responsibility for the different bits of a single LPG system. I think Mr Sylvester-Evans was discussing the desirability of minimising those interfaces. Can we agree that in principle that would be desirable? A. It would. Q. Can we also agree in principle that each party who has responsibility on each side of an interface should know clearly that he has that responsibility? A. Certainly. Q. Indeed the other parties involved in the installation should know who has responsibility on the other side of each interface? A. Yes. Q. Thus far can we accept that the interface issue is solely about who has responsibility for identifying the bits of pipework? page 60 A. Yes. Q. Because obviously interfaces, as Mr Sylvester-Evans has used it and as I think the HSE response has envisaged, may well involve other people, contractors, gas fitters, qualified competent persons and so on, but leaving that part aside, I think it is clear the HSE supports the minimisation of the number of parties involve in an involved in an individual LPG installation? A. Yes. Q. In your response after the sentence that I had already read, HSE say: "The number of parties cannot be limited by legislation." I just wonder, I am not certain that that is actually being proposed but in principle in a situation which was sufficiently serious, why not? Why could the number of parties not be limited by legislation as a matter of principle? A. Sorry, I think as a matter of principle, yes, but in the circumstances that we find it was applying to, we couldn't, for example, as a regulator currently, without additional legislation, require that minimisation of -- so that was the point that was trying to be made there. Q. I think what you are referring to is existing legislation? page 61 A. Exactly so. Q. What I was going to put to you was the analogy of the natural gas regime, which by legislation of historical origin responsibility for elements of the pipework is vested in an identifiable party? A. Exactly so. Q. You then say: "If an independent competent person's suggestion is ultimately accepted, then further interfaces will be introduced and must be managed in a similar way." I wonder if that is not, with respect, something of an overstatement because of course the independent competent person or at least somebody with the appropriate qualifications is already a concept with which the GSIUR is familiar? A. I think this comment was more linked to the aspects that we have already been discussing. I mean, we have been talking about the actual installation. I think this was more talking about the number of different people and the possibility of -- it was just more the point about you can increase the number of interfaces, not just by physical means but by the requirements of certain activities. Q. I am not sure I need to pursue that because of course the interfaces concept exists in the two senses: one, page 62 all different parties who might be doing something at some time, contractual, whatever it may be; but, secondly, the primary responsibility for the installation. It is said: "It is not clear how Mr Sylvester-Evans proposes to obtain the reduction in interfaces." I would suggest it is clear because he has -- and we will talk about it in a moment -- put forward two options, one of which by analogy with natural gas would be that the supplier is legally responsible in every situation for the tank and the service pipework up to the emergency control valve and the occupier is responsible for the system downstream. Leaving aside whether that would actually require statutory regulation, that could be achieved as a matter of legal practicality, could it not? A. Oh, yes. I think there is a legislative way that you could actually do that. Q. Does the HSE support at least looking at that to try and do what Mr Sylvester-Evans proposes, which is to minimise these interfaces? A. If a recommendation was made, we would look at that. Q. I think as an incidental of that we know and we identified, not least when this model was explained to page 63 us by Calor, that Calor appeared to have a different approach contractually to others (namely, Calor take responsibility under their modern contracts at least only up to the off-take valve whereas J Gas, and generally in the industry, responsibility is taken up to the first stage regulator. Do I take it that that sort of uncertainty is part of the very problem that we have been talking about at this Inquiry and the HSE would support reasonable steps to the bring about uniformity? A. Standardisation in this area is important, yes. Q. The second recommendation is each party has a clear account of the various things. I hope I do not need to look at it in detail, but it suggests two things: first is some kind of physical record kept on site, including a diagram, identifying the parties of both the characteristics and who has responsibility for the parts of a particular system. That I think is supported? A. It's supported but could I just make a point here? Just, for example, if we were to introduce a verification system it just might be that it might be better to be lodged with the verification system. So I think it depends on what type of system that, if a verification system were to be introduced, it might depend -- there might be a better alternative than the page 64 one that's here. That's all I'm saying. Q. Mr Sylvester-Evans can ultimately speak for himself but whatever terms we use, whether it is verification system or a safety dossier or documents about a system, I may be wrong about this, Mrs Caldwell, but I see them all as complementary and perhaps part of a single bundle of pieces of paper. A. That's exactly the point I'm making and sort of then you will want to bring them all together and then look at the interdependencies and linkages and it just may be that you can each achieve this but in a slightly different way. That is the only point I am making. Q. Generally, is there anything between us, I do not think there is, if it were to be suggested that there ought to be a document or series of documents kept on site identifying the relevant characteristics of the system which is on-site and thus accessible to the occupier who has some responsibilities to the supplier, who has other responsibilities to HSE inspectors who have further responsibilities. That in principle -- however one uses the terms -- is agreeable? A. It is. Q. There was also discussion with a witness from Calor about ways in which on the system itself it could be made clear to anyone who cared to look at it where the page 65 responsibilities were. For example, a notice on the tank or a notice on the security cover stating who had responsibility for the tank and downstream, wherever the interface was to occur. The painting of the pipe, which we know happened inside the building in a particular way or the applying of signs, which again we are aware happened in the inside of the building, without being prescriptive of any of that, Mrs Caldwell, has the HSE any view on whether that sort of thing is worth looking at or not? A. I think it is worth exploring and you may wish to explore it in different ways for the domestic as to the commercial because obviously if there's only one pipe going into a domestic premises there is no need to paint it -- just an example. So in principle, yes, but I think the detail would have to be worked out to the application. Q. I do understand that but just to take the simple individual installation case, if for example, as it is most conventionally, the gas supplier was responsible up to the first stage regulator and the occupier is responsible after the first stage regulator, then can we agree that it would be an advantage for anyone who happens to come along and look at the pipework, the Fire Brigade or it might be somebody having a legal interest page 66 or indeed it might be the parties actually responsible themselves, it would be a good idea to have a notice that made it clear to anyone who was interested where the responsibilities, where the interface actually changed? A. I agree with that but you would need to link who would have the responsibility for maintaining it. Q. Item 3 is: "UKLPG or an equivalent body should prepare guidance on the general recommended practice for its members with respect to ownership, the division of responsibilities and what duties that places on parties." I think you say that UKLPG can do that, give advice to their members, but HSE would be better placed to provide guidance. Having regard to the regime as it exists, Mrs Caldwell, and if we want as simply and easily as possible to achieve consistency about where the interface say between the supplier and the occupier is, how best can that be done? A. I think that would be for us to sit down with the industry, to get an agreement and to draw up the guidance to it. Q. Would that be good enough? Because after all you would be talking to the industry, not to the users who have a page 67 contractual relationship? A. By industry I mean -- sorry, when I use the term industry I mean users as well as suppliers. Q. Yes, I can see that as an aspiration but given the number of different users and different circumstances, what I am looking for, if I may, is your assistance on a way in which something consistent or uniform could be imposed on everybody? A. And that is why we have to, in a sense, I was going to say hold the ring because we do need to have a look at the interests of those who are the users as well as the responsibility of those who are suppliers. Sorry I may be missing your point, I am sorry, Mr Martin. Q. I am not sure you are because it is perhaps not straightforward. What I have in mind is it comes to be agreed by all of those who have an interest, say, that the gas supplier should have responsibility up to the emergency control valve and that is just an example. That is one of the options. Given that we are already aware that there is a there are a range of different contractual arrangements between individual suppliers and different customers, a huge range of customers doing different things with their LPG installations, how in practical terms would you then impose that uniformity both on the supplier page 68 side of the industry and the occupier and user of LPG side of the arrangement? A. Can I give some further thought to that and come back to that? I don't want to do it off the top of my head. I don't think that would be helpful to yourselves. Q. I think I should say to you, Mrs Caldwell, as far as I can see it is very important because I do not think there is any disagreement about the desirability of what we are talking about and the various options of where the division might happen that can be -- but once you have exhausted these you have to have a mechanism for bringing about what is seen to be the best in that circumstance? A. Exactly so and I don't want to make one up off the top of my head. Q. Number 4 is: "The LPG user (and, if relevant, landowner/manager, et cetera) should be required to retain relevant up to date information on its LPG system. It should include various characteristics." I may be wrong but perhaps that is just taking us back to another element of what was in recommendation 2. A. Yes, except the only point I would raise here is that we do have to look at could a householder, for example, undertake these responsibilities or do you need a page 69 different arrangement in respect of domestic supply as opposed to commercial. Q. I think the distinction is well made. As far as the terms of reference of this Inquiry are concerned, we have not really been directly involved with the domestic situation, although we have obviously talked about it in a lot of different ways. But as far as circumstances covered by the Health and Safety at Work regime are concerned, could the requirement to create and keep this kind of dossier be imposed under the existing regulations by a code of practice? A. If, we've already -- I mean, essentially it is an amplification of recommendations 2 and we have agreed that, but I am just making the point that we have to think wider and I don't think you could put such a responsibility on a householder. Q. I entirely understand that because of course the householder does not or may not have the practical ability to fulfil it but also does not have the same legal obligations. A. Exactly so. Q. So but in the regime covered by Health and Safety at Work legislation your position on behalf of HSE is that the creation and maintenance and availability of this page 70 sort of information on-site can be achieved through Codes of Practice? A. Yes, or a verification system if we were going down that route. Q. We will come to that. 5: "Every party who is responsible for buried LPG pipework should develop an inspection and maintenance strategy which evaluates the condition of the pipework ..." et cetera. I think if we take this in two senses, the response, I think, is about a strategy for replacement of metallic pipework which we will come back to. Do we agree that for the installations which are assessed to be at lower risk and are going to remain for some time while the whole replacement takes place, there should be, as part of providing the information which is contained in the documents that we have already talked about, a maintenance strategy which takes into account the condition of the pipework? A. I agree with that. The point that I think I would at the moment disagree with is the reference to such as the installation of cathodic protection or replacement -- not replacement, the cathodic protection. The reason I said that is that we certainly are -- page 71 we want the replacement strategy to take place and we want it to take place at the maximum pace that it can actually do so. What I would have a concern is other activities that are carried out in parallel that may be vying for the people who are able to actually bring things into practice, so the fitters, for example. Because yesterday from Dr Brian Fullam the point about introducing cathodic protection does actually require breaking into the pipe. Now the people who would do that would be exactly the same people who would be responsible for taking the work forward on the replacement action plan and I would have a concern that we are, sort of, causing capacity to be diverted on territory that wasn't of such high priority. So that is where my concern lies on this. Q. I do understand that and I do not think any of the evidence has suggested other than that a properly developed and implemented replacement strategy is what should happen, as you put it, as quickly, as efficiently possible, focusing on the highest risk first based on all these considerations. I do not think there is any dispute with any witness who has spoken about that because, as I recall, Mr Tomlin from Calor he said the same thing. He was not necessarily against, as it were, page 72 intermediate protective steps such as cathodic protection but it should not get in the way of fulfilling the replacement strategy? A. Yes and I think I am marking up that there is a role for cathodic protection but I think it is in a very small number of circumstances. Q. Having regard to what Mr Sylvester-Evans has provided, which is of course for the assistance of this Inquiry which, as part of its terms of reference, is to make recommendations. As long as it was emphasised that whatever steps were being taken by way of other protective methods such as cathodic protection, as long as that did not practically distract from the implementation as quickly as possible of the replacement strategy then there would be nothing objectionable about that? A. No. Q. Item 6 is: "A certification or verification scheme be introduced that requires an independent competent person to verify the integrity of the LPG system at each LPG user site prior to an LPG supplier being permitted to supply or continue to supply at that site. Site verification by the ICP would have to be renewed periodically at a prescribed frequency to be page 73 determined." The response is: "As noted in the oversight submission HSE is committed to exploring third party inspection, paragraph 39 of the overnight submission." I wonder if I could just understand the position of HSE on his periodic verification scheme. We have just discussed a moment ago that the ultimate aspiration is the most efficient replacement of all metallic pipework systems. So we can assume that is the top priority. In the meantime of course, the lower priority installations will continue to exist and have to function safely. If the GSIUR were applied to such systems, then that would provide some degree of assurance that if they were being modified or worked on or whatever, it was done in a way which was properly regulated. But of course what Mr Sylvester-Evans is envisaging is that the deterioration, particularly by way of corrosion in the soil, is a continuing process. Something is put in place for the systems that have to remain to ensure, so far as reasonable practicable in a proportionate way, that they are safe for LPG to continue to be supplied. Does the HSE have any objection to that as a matter page 74 of principle? A. Not as a principle. As I say, my only concern would be this point about are we diverting effort. So do we end up almost not having a prioritisation because we're diverting effort to all installations to use a competent person. So it's about the capacity to ensure that we've got the capacity to do the replacement plan, but in principle support the recommendation. Q. It may not have been done now, Mrs Caldwell, but is the HSE in the position ultimately, and perhaps the carrying out of the recommendations which might come from this Inquiry, to provide practical assistance about that cost benefit? That is to say how many people are available to do the jobs over a particular period of time, how the replacement strategy can be achieved and how any verification scheme might also be achieved in the mean time on the other systems which remain? A. I'm sure we could but it would depend on the timeframe that is being asked of us. Q. But a recommendation to the effect that the costs and benefits of all of that should be looked at is something that could be addressed be the HSE, no doubt in consultation with the industry and indeed with the certifiers of the competent persons? A. Exactly so. page 75 Q. Recommendation 7: "Any verification scheme should be developed jointly by UKLPG and HSE." You say the HSE should lead in any such scheme. Should we draw any particular conclusion from that? I am not sure Mr Sylvester-Evans was necessarily seeking to be contentious about who might lead. A. No, I think the point was just making -- I think there are probably two possibilities at the moment, one which could be a UKLPG-led system but we could also be looking at using CORGI or their successor. Obviously if it was that, we would want to lead. I think the other reason for suggesting HSE to lead is to ensure that both the supplier and the users' responsibilities are balanced. Q. May we take it that having regard to that response, HSE is confirming that it would lead in establishing such a scheme? A. I am. Q. If that was a recommendation that was to be followed through? A. I am. THE CHAIRMAN: We will stop there, Mr Martin. (1.00 pm) (Luncheon Adjournment) page 76 (2.03 pm) MR MARTIN: Good afternoon, Mrs Caldwell. A. Good afternoon. Q. I think we were looking at paragraph 7 of Mr Sylvester-Evans' recommendations, in your document where your response is provided, which is HSE 2. I want to ask you something further about that just in a moment but perhaps it would be more convenient if I go to 8 which is the recommendation that: "All existing industrial and commercial LPG facilities are inspected and upgraded to ensure ..." the various things which are specified. The response is: "Please see paragraphs 36 to 43 of HSE's oversight submission, the approach preferred by HSE. Any change in the physical requirements of LPG facilities must be evidence-based, must be costed and must be proportionate." Are you suggesting that what is being put forward in the recommendation is not proportionate? A. I think the point that was being made here, Mr Martin, was this point about whether this was going to be a legislative requirement or not. I do have a bit of difficulty with this recommendation only in the sense of how to bring it into page 77 being. There is no legal requirement in respect to the first of the bullet points and, yes, it can be applied in -- if it was going to be a legislative requirement, it would be applied retrospectively. It may be possible that it could be picked up in the replacement system. All, I suppose, I'm flagging up is I just see some implementation difficulties here that would need to be worked through. Q. That is actually what I was going to ask you about both in relation to that recommendation and the previous one which is the verification scheme, because in paragraphs 36 to 43 of HSE 1, if you could have that before you, please, which is the oversight document -- A. Could you just bear with me. I seem to have lost some pages. (Pause) I've recovered them now. Q. Go, please, to paragraph 37. These are the paragraphs being referred to under reference to recommendation 8 but I would like just to bear in mind recommendation 7 also, which is the development of a verification scheme and perhaps I could put it that way, the ultimate imposition of that scheme. If we look at 37 the HSE states: "As regards the replacement of pipework, DSEAR covers all pipework containing hazardous substances. page 78 Higher pressure pipework is also already covered by the PSSR which imposes a specific requirement for a written scheme of examination for dangers resulting from the stored energy associated with higher operating pressures." We have already agreed that in the present context that applies to the tank. "As regards LPG pipework it makes sense to tackle first the risks presented by older, underground metal pipework. For all non-domestic premises with LPG installations, there should be a written scheme of examination identifying pipework in which a defect may give rise to danger. Any metal pipework found to be unprotected, corroded or in a dangerous condition should be immediately replaced. Otherwise owners should be required to plan for its replacement within a banded time period. HSE will take further steps to increase awareness amongst LPG users of this issue and of their legal duties." I recognise, Mrs Caldwell, that you are talking in the context of that paragraph about the replacement of pipework strategy but, bearing in mind that whether we are talking about that strategy, whether we are talking about a verification scheme or whether we are talking about the requirement to inspect and upgrade facilities page 79 as referred to in recommendation 8, what we need is a regime that requires both occupiers and suppliers to make assessments and to do certain things as a result. A. Exactly so, yes. Q. My question to you is -- and it is reflected in the answer you gave a moment ago -- is it the HSE view that there are ways in which these steps, whichever particular ones were chosen, could be achieved by Codes of Practice because the underlying obligation already exists by way of statute? A. It could be applied by guidance and Codes of Practice but obviously ultimately it would be for the Court to decide whether that guidance and that Code of Practice was appropriate and acceptable. So the generality -- the answer to your question in general terms is yes, but the ultimate would be if it went to court for the Court to agree whether it was going to allow the guidance to be submitted, for example. Q. I do understand that. This Inquiry of course is not a court per se and could not provide any authoritative interpretation of the law but as a matter of practicality in looking at the way in which we can take matters forward as a result of this Inquiry and seek to implement appropriate recommendations, if I understand your general position correctly it is that one way or page 80 another under either DSEAR or PSSR or perhaps one or two of the other matters we have talked about earlier, the HSE is supportive of the principle that by way of code of practice, first assessment and, secondly, practical steps as a result would be able to be imposed by Code of Practice? A. Yes. Q. As you rightly say, ultimately as a matter of legal interpretation but of course as you have also said if it can be done by code of practice based on the underlying legal obligations which are already there, ultimately it can be enforced through enforcement action if that is appropriate? A. Yes. Can I just make one particular point here? I think the underpinning is there for such matters as the inspection, maintenance, et cetera, regime. The only reason why I just add a point of caution is that if you look at 8, the first bullet point, that is a very specific recommendation. Now, it may be that that is in the Code of Practice but a user could prove that they had actually dealt with the hazard or the danger that this is trying to deal with in a different way. So that's the only point I'm making, that we would not necessarily in every single premise be able to say that your pipes must enter above page 81 ground and must be fitted with an ECV. That's the only point I wanted to make. Q. I do understand that and of course in a particular situation if the ultimate sanction was enforcement action, as a matter of discretion if the hazard had been addressed in a different way, then enforcement action would not be appropriate. But of course whether it is ensuring, if that is desirable, that every system has an ECV which is a physical step that might need to be taken in relation to some or indeed whether it is ensuring that metallic pipework is replaced with PE is equally a physical step on an existing system. So, in principle the problem, if you like, to be addressed is ultimately the same, forcing or enforcing a physical change to make a system safe. A. Exactly so. Q. Number 9 is UKLPG prepares practical advice for industrial and commercial LPG users in how to fulfil their statutory duties particularly under DSEAR and I do not think I need to ask about that. Your comment again is the HSE should lead on that, presumably because it is going to apply not only to those in the UKLPG industry but users also. 10: page 82 "A process is put in place that defines for each LPG user site whether HSE inspectors or local authority enforcement officers are responsible for general inspection, HSE inspectors or local authority building control are responsible for oversight of the building/structural safety ..." You said the first recommendation seems unnecessary not least because of the Health and Safety (Enforcing Authority) Regulations. May we take it or may I take it, Mrs Caldwell, that again as a matter of strict law you are probably correct but we are dealing, having regard to the events with which this Inquiry is concerned, with situations in which people are not actually terribly sure in respect of their own installations where responsibilities lie. A. Interestingly, I had a discussion with a colleague, there is currently a requirement -- and for the life of me I can't remember where it is -- that does require the occupier or the employer of the premise to actually have a safety notice and in that safety notice should be written which is the enforcing authority. Now I'll say that is the current situation. I have to also be fair to say that we are reviewing whether that requirement should stay in place. But there is currently that requirement. page 83 Q. Bearing in mind at this stage it is simply a proposed recommendation for this Inquiry and I think in a way it is freestanding, it serves its own purpose and is not necessarily related to the other things we talked about, verification schemes and so on. On the face of it, does it appear a sensible matter to consider, again to make sure that people know who is the responsible authority? A. I think it's a sensible matter to consider but how it might be brought into effect is the point I'm again ... THE CHAIRMAN: Could that not just be done in a safety dossier? A. It could well be under a verification system, you could include it in that. MR MARTIN: I am not getting the impression, Mrs Caldwell, there is really much between us on that particular one. A. No. Q. It would simply be desirable to work out exactly how you were going to do it? A. Exactly so. Q. 11 is: "The LPG supplier should be obliged to provide the LPG user with a summary of its asset register ..." and so on. This of course for the purpose of putting or providing certain information which goes into the safety page 84 dossier or the characteristics of the scheme. We have actually heard from both the individual suppliers and UKLPG. As I recall, they do not have any particular difficulty about providing it voluntarily anyway. I take it that is not something the HSE take any exception to and it could be clarified in a code of practice? A. Yes. As you say, it's recommendation 2 and 4, is it not? Q. I am sorry I just did not catch -- A. I said it links in with the recommendations at 2 and 4. Q. Exactly, to provide a comprehensive description of what there is. 12 is that: "LPG users should be obliged to compile a safety dossier" and 13 is: "Guidance and a practical template for a safety dossier should be developed by UKLPG with its members and in full consultation with HSE." Unless you want me to, Mrs Caldwell, I am going to take what you said about the earlier recommendations. Again, I understand the position. 14: "The Inquiry considers as appropriate improving the ongoing communication from the supplier to the user of page 85 generic type material ... and, secondly, the formation of an LPG suppliers' and users' forum ..." You agree that this is worth considering. You also say some thought would need to be given to what such a body could achieve, given the disparate nature of commercial users of LPG. That seems perfectly sensible but it is not entirely easy to see how you could have a users' group that represented. From what I understand the HSE is saying, that is not a reason to reject this recommendation but it would be more difficult than involving the suppliers who are identifiable and have their own organisation, more difficult to identify who were the appropriate users? A. Yes. That's the point there. It may be that, for example, UKLPG could actually talk to other trade associations -- so, for example, the EEF, one of the larger manufacturers -- to see if there is a dialogue there that might be helpful. Q. Is the HSE aware of any equivalent situation, not necessarily anything to do with LPG or gas or anything similar, but where there is a users' group involving a large body of different industrial-type customers, if you like? A. Not really. They are usually around a sort of a shared page 86 interest. Q. 15: "HSE or whoever is responsible should publish more authoritative and detailed guidance on assessing whether existing building/structural safety is adequate and commensurate with the workplace hazards and risks, such as the use of LPG." Your response as is noted above, this is not a role for HSE rather for the Department of communities in England and the Directorate of the Built Environment in Scotland. May I just remind you of Regulation 4 (a) of the Workplace 1992 Regulations. Would that not be, as we discussed, an obligation which was enforceable by HSE inspectors and thus in that context be something which would be appropriate for the issuing of HSE guidance? A. I think there is still territory here to be bottomed out on who has the responsibility for what, to be absolutely honest. Q. Again, I think, it is a relatively self-contained recommendation and I can leave it at that. 16: "Appropriate mechanisms are put in place to collate the existing and future data ..." I am not going to take up time unless you want to page 87 add anything on that. A. No. On page 67 of our critique we have actually said we will do that. Q. 15: "Appropriate mechanisms be put the place to establish for industrial and commercial categories of bulk LPG sites [reading short] key statistics to assist in assessing the overall risk ..." I take it now we have more information on the development of the replacement strategy, in effect that recommendation would be part of the fulfilment of that? A. Yes, and I think that, as I understood it, UKLPG have undertaken to do some more work in this territory. It's quite a normal way that trade associations work. I know, for example, the Chemical Industries Association actually collect and share data which they don't necessarily share with the regulator. So it allows them to share it in a, let's shall we say, safe environment and they produce things such as key performance indicators, et cetera. So I think this goes with the grain of what happens in other trade associations. Q. 18 I think is part of the same thing: "During the transition phase, implement a basic risk ranking method ..." Again that is what we are talking about, is it not? page 88 A. Yes, and I would say this is the priority of the recommendations. This would be the priority. Q. 19: "The Inquiry considers a registration scheme be introduced by LPG suppliers whereby bulk LPG could only be supplied to LPG user sites by registered suppliers." The view is that this may not be proportionate and may be a barrier to entering the market. Is the HSE therefore opposed to consideration of such a registration scheme? A. I think what we are indicating here is that we don't necessarily see a role for ourselves in this. I just can't see how it would be policed, et cetera. So we're not opposing it per se but it's not necessarily something we ourselves would be able to take forward and help with the implementation of. Q. Is it conceivable it might require some sort of statutory regulation? A. I honestly don't know. It's just how the registration system would work and is it seen to be a barrier to those wishing to enter into the market or not. Q. I understand that. I do not think we have had any detailed evidence on competition aspects, but speaking immediately by analogy in the circumstances of which we are aware, in the CORGI registration scheme the page 89 requirement that you be sufficiently accredited to carry out work could perhaps likewise be characterised as a barrier to entry but there is a very good public interest reason why it is justified. Is that a fair way of identifying what the balance would be if you were looking at a registration scheme? A. I think it would be what is the purpose of the registration scheme and is this -- you know, is it really anything much more than an extension of the membership of UKLPG. Q. Of course it may be that Recommendation 20 is in a sense a different way of seeking to achieve the same result, which is that: "The Inquiry considers whether legislation is introduced whereby it would be a criminal offence to supply or use an LPG system which did not have an up-to-date verification certificate." Of course the purpose which that recommendation seeks to address is that if you assume you need to have an ongoing means of making sure that a system is still fit for purpose before LPG is supplied, and obviously a responsible supplier might well say, "I am not prepared to supply to this system because I am not satisfied it is sufficiently safe or adequately verified", then the ultimate risk arises if somebody else is prepared to page 90 fill the tank. Less likely, another responsible supplier, but possibly even the occupier himself, who connects up bottles or cylinders or indeed a third party who is not otherwise involved in the LPG industry. What ultimately it is said that this would need careful consideration and a full impact assessment. I dare say that is right, if primary legislation were necessary. A. I think legislation would be necessary. Q. Almost certainly that is right, to create a criminal offence, but the fact is as an aspiration does the HSE object to that final sanction? A. I don't object to the final sanction but I do think again there is this point about possible unintended consequences. At what stage would you bring it in, because currently you've got 60,000 commercial users and you've got about 140,000 domestic users. At what stage do you bring it in because when you bring it in, if you don't have a verification system you will not get your supply of gas. So this is the point about having a look -- so it could be brought in immediately but the consequences of bringing it in immediately is that there will be a lot of people in domestic premises without heating or a means for cooking. page 91 Q. I understand obviously transitional arrangements in that particular situation is an obvious consequence? A. And again it's this point about not diverting the capacity to actually deliver the replacement scheme would be another issue. Q. Of course, it depends upon there being in existence a verification scheme involving periodic inspection, which we talked about earlier and I quite accept in manpower implications for that if it diverted resources from the replacement strategy. But assuming the appropriate balance could be struck and you said this morning the HSE might be able to help ultimately in working out how that balance could be struck, given that the risk which has been identified is uncontrolled escape of LPG with potentially serious consequences and the fact that an LPG installation will eventually run out of gas, even if it does not become entirely safe, it is a lot safer with the tank unfilled than it would be with the tank filled again. So there is that curing method, if you like, to render the system safe even if there is a failure. Does the HSE have any objection to a regime which, one way or another, imposes the ultimate sanction which is that the tank is simply not filled if the safety requirements are not satisfied? A. No. As I said, it's a timing or a phasing issue. page 92 Q. The final recommendation is: "The Inquiry considers assigning target timescales for the implementation of its recommendations together with the body responsible for its implementation and, where necessary, the body should monitor progress." Now the HSE consider this to be sensible but I am afraid I have to ask you in a little more detail. First, what do you think would be a sensible target timescale for whatever step was appropriate and, secondly, who should be identified as the body responsible for implementation and monitoring? A. I think the body responsible for implementation and monitoring probably, as most of the recommendations we've indicated we would have a lead or help, I think the sensible recommendation would be for that body to be ourselves. I think the point about assigning timescales, if we just go back to the conversation we have been having about the verification scheme and when you bring that in, I think that is -- some of these recommendations would be very quick to bring in but others may have to be a medium term aspiration and I think that is the only point where it may be a little more difficult to assign a timescale. Q. We had evidence from Dr Fullam yesterday and previously page 93 from Mr Shuttleworth of UKLPG about the development of the replacement strategy and, as I understand it, the strategy itself is likely to be in a relatively final form by the early part of next year, then there would be discussion about the details of the actual scheme which was to be brought in. Would it be sensible, for example, to say that there should be in existence the metallic pipework replacement strategy and the timetable for its implementation, say, by the end of next year? A. I would hope it was a lot earlier but, yes, that would be a sensible timescale. Q. That would not be unreasonable on the evidence? A. It would not unreasonable. Q. Just to take advantage of your saying you hoped it might be sooner than that: what about say September next year? That would be just under a year from now? A. That would not be unreasonable either. Q. I think -- I am not sure how much more guidance the Chairman might find of assistance on this, Mrs Caldwell, but what do you think would be a reasonable date for that? I have just chosen those on the basis of the evidence we have heard so far but I am not certainly extending it should be any longer than it ought to be? A. I would, to ensure that there's sufficient pressure in page 94 the system for this, I would suggest June of next year. Q. June of next year. Thank you for that. Thank you very much. There is just one final matter I would like to ask you about because it does not appear in your document. Could you go to paragraph 3.3.3 of Mr Sylvester-Evans' report. It is 9698. This is where Mr Sylvester-Evans has identified the two options for responsibility; that, as it were, is the location of the interface. We talked about this this morning and the various characteristics. The two options he put forward were: at the first stage regulator or all of service pipework up to the ECV being the responsibility of the supplier. The latter of those is more of an innovation than the former. The former, other than perhaps in the case of Calor, is in effect confirmation of the status quo. Does the HSE have any view on which of those would be preferable? A. I could get a view. I haven't got a view at the moment but I am quite willing to get a view. Q. I think that would be helpful if you could because I am not going to go over all we discussed this morning. Clearly there are all sorts of considerations on each side but I think the Chairman would find it helpful to page 95 have a position stated by the HSE whichever way it went. A. We will supply that. MR MARTIN: Thank you very much indeed, Mrs Caldwell. I have no further questions. THE CHAIRMAN: Mrs Caldwell, I wonder if I could just pick up on one or two of the themes where I am still not entirely clear. How high a degree of priority did HSE give to a metallic pipework strategy in the light of this tragedy? A. We did give have it priority but I would want to put it into context, that there were other aspects of our work that also had a priority. I think you have heard from Mr Fullam (sic) yesterday and Mr Sylvester-Evans that we have had this tragic incident but if you actually look at the track record for LPG, the probability is a low probability. So, yes, we have applied priority. We are taking work forward, but we would have had other areas of priority as well outside LPG that we would balance this work with. THE CHAIRMAN: So it is a familiar problem of resources, is it? You have finite resources and the problems with which you have to deal are theoretically infinite. A. Exactly so. THE CHAIRMAN: I understand that. That makes perfect sense. page 96 But it does surprise me, I am bound to say, that four and a half years have passed since this tragedy and yet we do not have anything in place. Does that occasion you any surprise? A. I attempted to explain what we were wanting to do and I think the difficulty with this about getting to the replacement strategy it did need the other building blocks in place and hopefully I was honest enough to say that if you look back, there were probably times that we may have been able to speed this up but equally we were working in partnership with others who also had timetable pressures as well. THE CHAIRMAN: You see the industry have been fairly fleet of foot in carrying out their own studies. We know what Calor have done and we know what J Gas and Mr Sylvester-Evans has produced a series of recommendations. Can you see that that could give the impression that HSE are always on the back foot, as it were, and always reacting to the work of other people? A. I can see that impression is actually given, but what we have been doing is using the work that the industry has been doing to develop what we want and, in fact, I think very interestingly, the work that J Gas has done will be very helpful in establishing what is reasonably page 97 practicable and, therefore, will be extremely helpful for the replacement action plan. THE CHAIRMAN: One of the problems of course has been to get some feel for the scale of the problem that we are dealing with, that of buried metallic pipework. It occurred to me from the very start of this Inquiry that it would have been possible to have an approximate idea of the scale of the problem if every LPG supplier had been asked to enquire on the occasion of its next delivery to a particular site if there was buried pipework and if it was clearly established that it had been suitably protected. It would have added to the burdens, I have no doubt, of the drivers but it would have been a way of getting a fairly quick grasp of the probable scale of the problem. Was that considered? A. I would have to ask for detail but I'm sure this was part and parcel of what the desktop exercise that the suppliers undertook, that is probably where they got a lot of their information but I haven't got that detail to hand. THE CHAIRMAN: Just going on to another topic for a moment, my feeling is that you are reluctant to assent to the suggestion of a registration requirement, the suggestion that Mr Sylvester-Evans has made. A. What I was looking -- I was reluctant on the basis of page 98 thinking how it just might be brought into practice and the point of if we are having a verification scheme, do you also need a registration scheme. You've already got UKLPG who have, I think it is about 95 per cent coverage membership. I don't know if there is something there that would be workable into sort of moving it into a registration scheme. THE CHAIRMAN: Is that not really the point that with a registration scheme it would mean that 100 per cent of the industry were registered; whereas UKLPG they have obviously almost all of the market but not complete coverage, so there could be rogue suppliers who are not in UKLPG. A. Yes and I think the situation is -- I think, pursuing the issue about not supplying without a verification certificate might be a better route than necessarily a registration system. I mean, I have no objection to a registration system. I'm just attempting to think how it might be brought to fruition, is the point I am making. THE CHAIRMAN: There is no novelty in the idea that people who traffic in dangerous substances should be subject to some form of scrutiny and qualification, registration, licensing, call it what you will. A. Again, it depends. There is a distinct difference page 99 between registration and licensing. Licensing requires a lot more than just merely registration. THE CHAIRMAN: The main thing would be to ensure that the personnel who the suppliers used would be competent to do the job. A. To me that is more a licensing regime than a registration regime and we do have licensing regimes but I'm not sure, with all the other recommendations here, whether it warrants a licensing scheme as well. THE CHAIRMAN: One of the questions that has been very much in everyone's mind at this Inquiry is the question of the extent of responsibility of the supplier in relation to the installation itself. At one extreme we have the very clear policy on the part of Calor that their responsibility goes no further than the vapour offtake valve. They supply the tank, vapour offtake valve and everything beyond that is the responsibility of the user. We understand that other suppliers accept liability as far as the first stage regulator, which may be some distance away. The idea has been floated that the liability of the supplier might be made to extend as far as the emergency control valve at the entrance to the building. These are all various possibilities. Am I to infer from your evidence that the HSE have page 100 not reached any concluded view on this? A. I think that was the area I said I would actually come back and provide some information on. If we take it stage-wise my reading would be that section 3 places responsibility on both the duty holder within the premise and supplier and that is to actually have a look at the impact of their activities on the health and safety of people that aren't in their employment. I think you could then, if you use section 3, you have the argument is that by supplying gas into underground, unprotected metallic pipes there is a risk that pipes could leak and, therefore, there is a responsibility for the supplier to carry out a risk assessment in respect of those pipes. THE CHAIRMAN: That could be thought to be a pretty awesome interpretation of the legislation, Mrs Caldwell, if you think of the practical consequences of that. But just let us put that to one side because it is not my job here to make a decision on what the legal consequences are. I am looking to the future, trying to devise a practical scheme and one of the questions that one has to ask in relation to that is what represents a good, pragmatic option which would clearly establish the extent of responsibility of the supplier on the one hand and the user on the other? page 101 If one were to look at it in that way, leaving aside the questions of interpretation about the existing legislation, can you see that there would be great virtue in having a clear criterion, whatever it was, that was applied universally throughout the industry? A. Most certainly, yes. THE CHAIRMAN: So the next question then would be what the criterion would need to be and I think that is a point you will like to consider further. A. Exactly so. THE CHAIRMAN: Could I ask you, please, to do that because I regard it as a very important question. A. I will indeed. THE CHAIRMAN: Thank you very much indeed. That is kind of you. The other thing is just going back to the unfortunate history here, the actions of two of the HSE's inspectors, at least two and perhaps more, are closely bound up in the history of this tragedy, as you know. In relation to Mr Tyldesley and Mr Ives, do you as a senior person in HSE have any view to express? A. I'm sorry, I'm not quite sure what you're asking of me. THE CHAIRMAN: What is your verdict on the parts that they played in this history? page 102 A. I think I'd go back to the point I made about the Calor compromise which was that for that compromise to have worked, we needed to understand the condition of the pipe and to have an agreement that the pressure test would be done on a regular basis because of this point about continuity and we did not probe whether the Calor compromise would deliver that. THE CHAIRMAN: Would you accept that if that pipe had been uncovered in accordance with Mr Tyldesley's original recommendation that in all likelihood we would not be here today? A. I think the answer is the probability would be strongly reduced but there would have been possibly other opportunities to have that intervention and I recognise that other opportunities chose(sic) and were not taken up. So what I'm saying is our interventions weren't successful and I do regret that. THE CHAIRMAN: There are some questions, I think, from Calor and J Gas. Mr Brady, do you want to take part in this discussion? MR BRADY: No thank you, my Lord. THE CHAIRMAN: Mr Macauley? MR MACAULEY: I would be obliged, my Lord, if I could ask two or three questions. Examined by MR MACAULEY page 103 Q. Mrs Caldwell, you perhaps cannot see me at the back but can you hear me; is that correct? A. Could you wave? Q. Pardon? A. Could you wave? Thank you. Q. I just want to follow through the point that Lord Gill raised with you a moment ago and just put this to you to see if we can reach agreement with this: over the piece, would you agree that, at best, the inspectors involved with ICL were gullible and, at worst, negligent? A. I would say neither. What I'm saying is that what they did was they were having a discussion with a company that was a reputable supplier of LPG gas. They were having -- and Mr Tyldesley put and so did Mr Ives put their request to the company in their letter and in detail and then discussions were had between the inspectors and Calor and I come back to the point that what the inspectors did was fail to bottom out what was actually the basis of Calor's compromise. Q. Reading off the transcripts, would you agree that it would appear over the years that the inspectors who dealt with ICL, that they placed too much credence on what they were being told by those in charge of that enterprise? A. I think when an inspector is dealing with, I think, on page 104 occasions the managing director of the company, he has to place some credence on the dialogue that is occurring. Q. Are inspectors told to address such matters with a degree of scepticism? A. Yes. Q. Did that happen in this case, so far as you understand the situation? A. I find that very difficult to answer because I wasn't there over 25 years ago. That conversation is the conversation that Mr Ives and Mr Tyldesley had with the company and I think from the transcript it is clear that they had difficulty trying to remember that far back. Q. Can I just move to a point I have been asked to raise with you by the families and that is that they maintain that the employees at Grovepark Mills were really not made aware of any reservations the Health and Safety Executive had about the business there. Can you tell me what steps are taken by inspectors to tell the workforce about health and safety issues; for example, the existence of an improvement or enforcement notice? A. After each visit whilst the inspector is still on the premise, they should seek to have a conversation, even with a union safety representative or with a page 105 representative of the workforce and if they do, write to the company or if they do serve a notice, copies should also be sent to the workforce. Q. To whom would that be sent? A. Usually the inspector will, in conversation, identify somebody who may be willing to be in receipt of that information. Q. So far as the history has shown, is that what happens as a matter of practice, that someone is identified within the workforce and the enforcement notice is, information in relation to the notice is passed on to them? A. Information on the notice is not only passed on but we have a responsibility to put notices on a public register and that would also take place. Q. Mrs Caldwell, another matter I have been asked to raise with you and that relates to HSE staff. It seems from the discussion taking place that the HSE have quite a bit of work to do, particularly on the recommendations that are being proposed in this Inquiry are put in place. What is the position with regard to staff at present? Do we have enough in inspectors in employment to carry out this work? A. The work of putting these -- sorry I'm getting tongue-tied. The work that will be required to bring page 106 the recommendation into fruition will not necessarily be carried out by inspectors but different staff within HSE and we will make sure that resource is available. Q. Generally with regard to inspectors, what is the position? Can you give me a feel on the position over the last three or four years? Have the inspectors been increased or has it decreased? A. The number of inspectors has stayed roughly the same. We also have a settlement from Government for our financing for the next three years and the requirement of that settlement is to ensure that we keep the number of the inspector levels at the level that were on 1st March of this year. MR MACAULEY: Thank you. THE CHAIRMAN: Mr Sheldon? I should not get bogged down in the statutory interpretation if I were you. It is not a problem that is going to concern me. It is outwith my terms of reference and I do not intend to ... MR SHELDON: I was not proposing to ask any questions, my Lord, thank you. THE CHAIRMAN: Are there any questions at all you wish to ask, Mr Sheldon? MR SHELDON: No, thank you. Examined by MRS STACEY Q. Do you personally have experience of implementing the page 107 recommendations that were made by Lord Cullan after the Piper Alpha Inquiry? A. I do. Q. Do others in your organisation also have experience of implementation of recommendations such as that or indeed new legislation? A. Yes, we do. Q. Have we discovered in the course of the evidence in this Phase 2 of the Inquiry that what Mr Sylvester-Evans has suggested in his report, which of course we all had an opportunity to read in advance, deals as he said himself with ideas about what should be done but, as he said, does not have so much in it about how it should be done? A. Yes. Q. Have you been able, in the course of thinking about it and indeed discussing this with Mr Martin and his Lordship, to give evidence about HSE's experience in looking at how things are done? A. Yes. Q. Is it HSE's position that it would endeavour to assist with giving advice and experience on how to implement things? A. Most certainly. Q. It has already been put to you, I think, perhaps by his Lordship that the HSE has lodged a lot of written paper. page 108 I think his Lordship said that there was a lot about how to do things yesterday. It is certainly true that there are a lot of words lodged by HSE but did you authorise the lodging of that in an effort to explain what the HSE does think about the best way to implement things for the future? A. Yes. Q. Broadly speaking, Mrs Caldwell, do you rely on what has been put in in writing in order that we may make submissions about it at some later stage? A. Yes. Q. I do not want to detain you or the Inquiry with history. I know that you have answered Mr Macauley's questions but I do want to ask you one particular thing. Mr Martin said to you yesterday that if there was evidence that ICL was a unique exception, it would have been perfectly open to HSE to come to this Inquiry and say something like this: "Look, there were exceptional circumstances at ICL and here is what we did everywhere else". The suggestion seemed to be that you could have led evidence at this Inquiry of what inspectors did in some other place. Can I just ask you: did you ever think this Inquiry and its terms of reference would welcome evidence from HSE about the detail of what it had done on other case page 109 files? A. No, because we were asked some very specific questions and that wasn't one of them. Q. And to take responsibility for this too, Mrs Caldwell, have you been advised all along by a legal team, of which I am a member, and did that legal team ever suggest to you it would be a good idea to explain what you had been doing somewhere else at some other time? A. No. Q. Thinking about that then, you understood I am sure the import of Mr Martin's questions. He seemed to suggest that it could be drawn from what happened at ICL that much the same must have been happening everywhere else. That seemed to be the thrust of the question. Do you accept that you can indeed look at what happened at ICL and take some generality from it? A. Yes. Q. Do you also accept that each occasion will actually be unique and that the suggestion that this Inquiry ought to draw that what happened at ICL must have been happening elsewhere, do you agree with that suggestion? A. No. Q. Having asked you about that and having taken from you that you do accept that there are things that any organisation can look at when something has happened and page 110 decide to make changes for the future, in your written submissions have you explained to the Inquiry what changes have been made in the last 20 or more years in HSE with regard to management? A. I don't think it is discretely covered, no. Q. Do I understand that there is a model called the Enforcement Management Model (EMM)? A. Yes, and that is in the documents but would it be helpful if I just explained a little bit more? Q. Yes. Perhaps you could do that for me briefly, Mrs Caldwell. I do not want you to have a memory test of everything the HSE has done but I think his Lordship and Mr Martin point out, particularly with the question of check visits, and the people from the families who are listening to this may also be interested to know if the various computer systems and management models that I have just referred to are HSE attempting to address the way in which things have happened in the past and to keep up to date and improve. A. I think it's more than that. I think if you look at what we are as an organisation now compared to what we were a quarter of a century ago, we are a lot different and I think you've got a lot about our systems and procedures. But we are a far more management and performance orientated organisation now. page 111 At the time in the '80s we had line managers that were very much player managers and the situation now is that they are managers who are there for performance management, training and for monitoring activity and certainly our ability to do so has been enabled over the last few years with being able to use IT to support that. But we've also moved -- and this was in the early '90s -- the Commission published what they called their Enforcement Policy Statement and on that we built a model which was the enforcement management model which is effectively a structured decision-making model to take inspectors through the things that one has to do to actually get to the outline of whether, for example, you are going to enforce in a formal term or in an informal term. That is used by inspectors when they go about there work, whether it LPG or right across the board. It's certainly used, for example, to support the decision to prosecute and we would have a completed EMM form that would go with the prosecution report as an illustration. Q. In this Inquiry, I think that we have asked others, for instance Calor we asked how they audit what their drivers and so on actually do, so when you talk about that sort of model does the HSE check up on what the page 112 people who work there are actually doing? A. Yes. Again, this is sort of -- we do run and we have an internal audit and we do run audits of our regulatory decision-making, for example. We have run one and we are in the process of running a second and other areas are such as check visits and also application of the selection of our incident selection criteria. So all our regulatory processes over a period of time have been audited. Q. Then can I ask you very briefly about things that have happened since the ICL disaster. You explained earlier today that HSE was involved in the investigation and of course in Phase 1 we saw a great deal of that and so there was the work that HSE did with the police and with the Crown Office and Procurator Fiscal Service to investigate. Do I understand from what you said earlier that there was some research done on behalf of HSE by HSL, which is the laboratory? A. Yes, there was. Q. And that started, I think, in 2004 and was reported on by 2005? A. It was. Q. Then, I think that there were publications thereafter which we have looked at. page 113 In the interests of time, my Lord, perhaps I will not detain everyone but I will give the reference numbers. There was, first of all, what is called the Discipline Information Note and the reference for that is 3558. That is a document for inspectors headed "Developing an inspection strategy to ensure ongoing external integrity of buried metallic LPG pipework", and that I think came out in 2004? A. It did. Q. Then there was an OC, which is an Operational Circular? A. It is. Q. The number of it is 286 for LPG-105 and the Inquiry number is 004236. Perhaps it would be useful, actually, if I might just briefly have a look at that on screen, my Lord. Can we see if we just look at the big type at the top that it is again about the ongoing integrity of buried metallic pipework. Can you confirm with me that this was the one that came out in 2008? A. It is. Q. This was the one that Mr Martin said to you today simply sets out what inspectors should have known already. Do you remember he put it that way? A. He did indeed. page 114 Q. Do you have any difficulty with a document that puts out in plain language what inspectors know already? A. No, and I think it's important that from time to time we do refresh inspectors' memories and also we'll have inspectors, new inspectors, coming in and we've got to make sure that they are also kept up to speed. So circulars like this will serve a variety of purposes and the other point I made, was it linked it through to the EMM as well. Q. If we just look very briefly then if we move on to page 4239, can we see at the top of paragraph 25 an example where there are questions which are said that they should help inspectors to determine what action is required? A. Yes. Q. Are there suggestions given there for inspectors to consider? A. Yes. Q. Then below that if we can go to the middle of the page the heading is "Enforcement policy and EMM"? A. It is. Q. That then sets out the standard to be achieved? A. It does. Q. Let us just look at 27. It says: "If Buried metallic LPG pipework is not protected page 115 against corrosion or the status of the pipework and/or the protection is unknown, then prompt action should be taken. Further details are given ... below"? A. Exactly so, yes. Q. I suppose the point might be made, Mrs Caldwell, that perhaps that could have been said before but do you have any difficulty with the idea that it is now and said in plain language here? A. No, none. Q. Those two documents then -- we did not put the first one up on the screen but it was the predecessor of that and they are intended for inspectors, are they not? A. They are. Q. I think there was also a document intended to be given to the customer, so to speak, and perhaps we could have 003573 up. Is this a leaflet on which we can see it is HSE checking LPG pipework. Do I understand correctly that this was produced in March 2006? A. Yes. Q. We can actually see that if anybody wants to check it just about the bottom of the middle column. Thank you. This is a leaflet that is folded over of course so if we could go on to the next page, can we see that page 116 there there is an introduction with some illustrations, the next column is headed, "Who is responsible for ensuring LPG pipework is inspected and maintained" and then in last column is advice given? A. Yes. Q. If we look at the bullet points, Mrs Caldwell, can we see that the second last one says: "If you don't know who owns the pipework ask your LPG supplier", and last one says: "It's probably you." A. Exactly so. Q. Is that straightforward plain language again directed at the people who will have these installations? A. It is. Q. We know also that HSE has been involved in other research that Calor started and his Lordship has put to you that that was done perhaps more quickly than HSE did. I think you may have heard the evidence or you may only have read it but it appears from evidence from Calor that they started their research after an incident at a place called Glenspin which was in 2006. Are you aware of that? A. Yes, that was at a domestic premises. Q. That's right. It's in Lanarkshire, another Scottish one page 117 then. That seems to be, according to Calor's evidence, what started that. We have heard from Mr Fullam (sic) that he on behalf of HSE has been involved in that and the HSE has taken some of the funding for that and has paid for it? A. Yes. MRS STACEY: Thank you, Mrs Caldwell. I have nothing further, my Lord. THE CHAIRMAN: Mr Martin? MR MARTIN: I have no further questions thank you, my Lord. THE CHAIRMAN: Thank you very much for your evidence, Mrs Caldwell. It has been most helpful to the Inquiry. (The witness withdrew) MR MARTIN: My Lord, the next witness is Mr Geoffrey Podger. GEOFFREY JOHN FREEMAN PODGER (called) ^ Examination by MR MARTIN Q. Good afternoon, Mr Podger. A. Good afternoon. Q. You should have in front of you the Inquiry statement which you have prepared. I do not think there is any other document I need to ask you to look at. We can see that your full name is Geoffrey John Freeman Podger. After graduation you joined the Civil Service in 1974. Could I just enquire for the purposes of what is page 118 before this Inquiry, what was your degree in? A. Certainly. I have a degree in modern and medieval languages from Oxford. Q. During your career you have worked with Government departments, international organisations and British agencies. Most recently you worked with the Department of Health and then the Ministry of Agriculture, Fisheries and Food for a period of 18 years, including a period heading the health promotion work carried out by that Department. You became Chief Executive of the Food Standards Agency at its inception in Britain in 2000 and in 2003 became the first Director of the European Food Safety Authority. In late 2005 you joined the HSE as Chief Executive and you are currently an honourary Vice-President of the Institute of Occupational Safety and Health and an Honourary Fellow of the International Institute of Risk and Safety Management. So far as paragraph 2 is concerned, I need not trouble you with your responsibilities which are clearly set out in the location specified. You confirm the answers in Phase 2 document which is HSE 5 together with the other information. Have you been present to any extent during the page 119 evidence of Mrs Caldwell? A. I have been present throughout the evidence of Mrs Caldwell. I arrived for the afternoon session yesterday. Unfortunately, I couldn't arrive earlier. Q. Thank you very much. So far as the paragraphs headed "ICL Inquiry" are concerned, perhaps I could ask you to read paragraph 4? A. Yes, I would very much like to do so and I am grateful for the opportunity. "We at HSE are quite clear that the duty holders in this case, ICL, bear the responsibility for the incident and were properly charged and convicted under the Health and Safety at Work Act 1974 at the High Court in Glasgow. Nevertheless I want to make it clear and to make it clear publicly here that it is a matter of infinite regret to all of us at HSE that our own interventions in this matter were not more successful." Q. In paragraph 5 you go on to deal with the contract which is referred to in HSE 5 which has been entered in with Capita Group to provide a replacement registration scheme for gas installers. I need not trouble you with that. I wonder if I could just ask you about paragraph 4, please. What in general terms do you regard as being the role of HSE inspectors? page 120 A. We see HSE inspectors as essentially conducting a sampling regime under the Health and Safety at Work Act, part of which is promoting good practice, part of which is tackling those issues which they find, which may include enforcement action. Q. We are well aware that there is a Health and Safety at Work regime which imposes duties on employers and occupiers of industrial premises. Is that right? A. Indeed. Q. As I understand the charges to which the ICL companies in question pled guilty, they related to breaches of duty under specific sections of the Health and Safety at Work Act which related to their failure to take sufficient steps, including the carrying out of risk assessments in relation to the underground pipework which then existed at Grovepark Mills? A. That's absolutely correct. Q. Putting it broadly, the evidential basis of these charges were a failure over a period of years to take no steps either to carry out a risk assessment as such or to take any other appropriate steps which might have identified the deteriorating condition of the underground pipework? A. That's correct. Q. In the second sentence you say: page 121 "Nevertheless I would like to make it clear that it is a matter of infinite regret that our own interventions in this matter were not more successful." You may have heard my questions of Mrs Caldwell yesterday, but I understand in general terms that she accepted a series of propositions from me which have been disclosed in the evidence led at this Inquiry previously which I might summarise to you as follows: the first is that from a period in the late 1970s until 2004, with one exception, no health and safety inspector paid any attention to the underground pipework at Grovepark Mills; is that right? A. That's my understanding. Q. Secondly, during that period on at least four recorded occasions, Health and Safety Inspectors who had notified that there should be a follow-up visit by other inspectors on a specified date, that requirement was also not followed up on until much later. Is that right? A. That's my understanding. Q. In the case of the single individual inspector who did pay attention to the underground pipework (Mr Tyldesley) he recommended excavation and examination but in the face of a counter-proposal from Calor Gas Limited on behalf of ICL Technical Plastics that was not insisted page 122 upon. Is that right? A. That's correct. Q. That in the case of what has been referred to as the Calor compromise, whatever understanding Mr Tyldesley and Mr Ives as inspectors may have had about what was going to be done, no steps were taken by them or other HSE inspectors actually to identify subsequently what had been done and the result of what had been done. Is that right? A. Exactly so. Q. In particular, and after the events which took place at the end of 1988 and into January 1989 when the Calor compromise was agreed, between then and 2004 and the explosion which occurred there is no evidence that any inspector paid any particular attention to what we know was the continually deteriorating pipework under the ground at Grovepark Mills. Is that right? A. That's my understanding. Q. So is it fair to say, without attaching any legal liability, Mr Podger, that the activities of the HSE inspectors in question in frankly ignoring the pipework which existed in the ground and taking no steps to identify that it to continued to provide a safe installation to be supplied with LPG, in effect were of equal culpability to what was done by those on behalf of page 123 ICL? A. I think the first point is that it's clear that this problem was, as you have pointed out to me quite correctly, actually identified. Mr Tyldesley gave a view as to what needed to be done. It is the case that for reasons I think we don't now understand -- and the Inquiry has all the evidence of the inspectors who were there at the time -- it is clear that what all of us feel would have much preferable had it had been done, was not done. That is very clear in my view. I think it is important though to stress -- and it is regrettable also that when the Calor compromise appeared to be followed up there appeared to be view that it had been implemented when in fact it had not. That is also, I think very regrettable. Having said that, I think I would not in any way go down this route of equal culpability precisely because the Health and Safety at Work Act very properly and, in our experience, successfully but clearly not in this instance actually places the prime duty on the duty holder. HSE can help with advice; it can help with monitoring; but it does not alter the fact that it is at all times the duty holder who is responsible and has the ability to undertake what needs to be done. So my page 124 position is very clear. My position is one of infinite regret for our record as you have described it. I don't seek in any way to move away from that. I don't conversely accept the principle of equal culpability. Q. I can leave that to the ultimate judgment of the Inquiry but one of the steps that you did not mention there which inspectors could take, if appropriately justified, is of course beyond advice and inspection but is also enforcement? A. Indeed. Q. So it is not simply that inspectors are powerless beyond trying to do their best to ensure that the specific duty holder does what is required, they do in fact have an ultimate legal power to take enforcement action which can achieve the practical result which is desirable? A. They do and I think I, in fact, mentioned enforcement as one of their functions. Q. Can I also put to you that of course during the period of time and, again, having heard Mrs Caldwell's evidence you will be aware of the fact, HSE themselves in an internal circular, FIC28643, circulated in November 1980 had in fact identified precisely the problem which existed in this case and had provided a practical regime which should have led to the problem being identified long before it became a serious issue in 2004. page 125 A. Certainly. I mean, the fact is, as you previously said, it was identified in 1988. Unfortunately, the outcome was as we know. Q. In paragraphs 6 to 8 you are referring to the record of the HSE. I do not intend to ask you any questions specifically about that but at the end you say in paragraph 8: "I very much wish to add that HSE will proffer any further assistance possible to the Inquiry whilst recognising that it is a matter for the Inquiry to write and produce the recommendations for ministers. HSE does see that it has a key role to play in taking any recommendations forward and ensuring that there is parity between all parties in the future management of LPG. We are willing to consider all conceivable ways in which a solution might be found." May I take it as Chief Executive of the HSE, Mr Podger, and having been present during the relatively lengthy evidence of Mrs Caldwell, who I did ask a number of questions about recommendations, you would endorse her willingness on behalf of the HSE to look at, consider, assist in the implementation of the recommendations in the way that she discussed? A. Most certainly and Sandra and I had reached that common position in advance. I would also like to add that I'm page 126 sure that the board of HSE, which it should be remembered is a non-executive body consisting of trade unionists as well as employer representatives and representatives of the public interest, I'm quite sure will themselves, and properly so, will want to follow through on the outcome of the Inquiry and the action which is agreed should stem from it. So I think it is very important to make the point that the overall HSE response will actually be led by our non-executive board obviously I shall have responsibility for implementing it but under them. Q. Without labouring the point, of course there may be discussions about the technical aspects of how far our recommendations should go in turns of implementation but you can provide to the Inquiry, in the way you have just done, an assurance that the recommendations will be responded to positively and willingly by HSE and you will do your best to implement them so far as you can? A. We shall do our best to implement absolutely everything which will actually have a beneficial effect. You appreciate I put it in that way only because in my experience of other inquiries there is inevitably and perfectly properly a subsequent debate, as you implied yourself, about individual issues and that's right and proper because actually if we can make more progress page 127 then, I think, it is quite reasonable then to take account of changes we may learn subsequent to an inquiry. But we are committed to this area and we actually want to act very positively. MR MARTIN: Thank you very much, Mr Podger, I have no further questions. Thank you, my Lord. THE CHAIRMAN: Mr Podger, HSE it is clearly established knew of the risks that were inherent in having unprotected metallic pipework buried underground. There is no doubt about that. Do you agree? A. Yes. THE CHAIRMAN: That was clearly known and understood at the time when the compromise agreement was reached with Calor. Is it not obvious that if that pipe had been excavated, it would have been immediately apparent that it was unprotected? A. Yes, it would have been apparent that it was unprotected. I agree. THE CHAIRMAN: You must accept, surely, that in that event the scale of the risk would at once have become obvious to the inspectors. A. Yes, I would certainly hope so and that remedial action would have been taken. page 128 THE CHAIRMAN: So it does appear, does it not, that that opportunity was completely missed at the time of the Calor compromise? A. Indeed, my Lord, it was. THE CHAIRMAN: Had it not been missed, events would have taken a very different course. A. I, with no more information than the Inquiry have, I'm in exactly the same position. That does appear to me very regrettably to be the case. THE CHAIRMAN: Mr Martin has taken you through a series of stages in which it appears the HSE supervision of this site was deficient. May I take it that these are the specific acts and failures to act for which you apologise in your statement? A. Yes. I think it has to be a matter for us of infinite regret. We are a organisation which tries to protect people in the workplace. As you yourself have said, my Lord, we have an opportunity, for whatever reason, which I think is difficult now to know on the evidence we have, but for whatever reason we didn't grasp it and the beneficial improvement which would have occurred did not. THE CHAIRMAN: The other matter is that Mr Ives made it very clear to us that one of the most important page 129 considerations in his mind in agreeing to that compromise proposal was a fear that if enforcement action were taken Calor would, in all probability, contest it and that would involve HSE in proceedings of some sort. Do you consider that that could ever be a proper reason for failing to take steps that would ensure safety in a particular installation? A. If I could speak, first of all, generically and then come back to this particular issue and how it applies, I think inspectors who believe that they can secure quickly the improvement they need in the time-frame which will actually ensure people's safety will think twice about resorting to enforcement action particularly in cases where they believe the management is showing every goodwill and the matter is not immediately serious. I don't have a problem -- indeed, I think it is very sensible -- for inspectors before they take enforcement action to be quite clear that actually such action will be upheld by the courts if it is in fact legally challenged. I think that is a very proper view for people to take. I absolutely do not take the view that in some way the fact that one may have resistance and high level resistance to any form of enforcement action is a reason page 130 in itself to in any way resile from that action -- quite the reverse. Let me say, I often encourage inspectors who are faced with extremely obstreperous organisations, provided we are sure we are right in our facts and right in law, that we should proceed and that is the general position of HSE without any doubt at all. THE CHAIRMAN: In other words, if conscientiously an inspector considers that enforcement action is the right and the proper course in the interests of safety, then he must do as conscience commands? A. Yes and I have no doubt from my own experience that that is exactly the position of our inspectors who are themselves, let me say, people actually of considerable moral integrity and, let me say, are not people in any way who are easily intimidated. THE CHAIRMAN: I take it from what you have said then that if in those circumstances an inspector were to refrain from taking that action for fear of being embroiled in litigation, that that would not in your view be a proper consideration -- A. No, it would not. THE CHAIRMAN: -- under which to act? A. As I say, I don't find it now possible to understand precisely what happened in this circumstance. But I agree absolutely, my Lord, with your last remark: it page 131 would not be proper. THE CHAIRMAN: It was not until very late in the day that we learned of HSE's involvement in the Calor Advantica research. Was that just something that was missed or was that something that you did not wish to raise with us for Part 2? A. No. In fact, colleagues in the Inquiry have already raised this point with me. It came as a complete surprise to me. We have not sought to hold anything back from the Inquiry. Indeed, I have to say, we consider it is one of the important steps that we have taken. THE CHAIRMAN: I will not conceal from you the fact that it took me by surprise, Mr Podger, and I was rather disappointed that it same so late in the day. A. Well, I'm sorry for that, my Lord. As I say, I can give no explanation. It was certainly no deliberate attempt to withhold it. THE CHAIRMAN: I think when you find yourself in a situation where the Inquiry obviously does not know about these things, we are really depending on HSE to volunteer the information. A. Indeed and, as I say, I don't understand why we did not volunteer it given that, frankly, it is something in which actually we take some pride. page 132 THE CHAIRMAN: Thank you, Mr Podger. I think those are the only points I wanted to raise with you. There are other questions from Calor, I think, and from also from the families. Would you like to go first, Mr Macauley? Mr Macauley is at the far side of the room. Examined by MR MACAULEY Q. I potentially covered it with Mrs Caldwell but just to confirm with you and following upon what his Lordship put to you, Mr Podger, I think you are accepting that there were significant failures on the part of the HSE which contributed to the disaster. A. What I'm accepting is that we did play a role in this and we did not at all succeed in our objective, something which, let me say, is extremely unusual and extremely regrettable. Q. You are on behalf of the (inaudible) at least many of whom are present here today? A. Absolutely. I did stress that and I wanted not just to put this in my statement but say it publicly: it is a matter of infinite regret to us. THE CHAIRMAN: Mr Sheldon? MR SHELDON: I have no questions of this witness, thank you, my Lord. THE CHAIRMAN: Mr Martin? MR MARTIN: No further questions. page 133 THE CHAIRMAN: Mrs Stacey, I am so sorry. MRS STACEY: That is quite all right, my Lord. I have no questions. THE CHAIRMAN: I do beg your pardon. Then there are no further questions, Mr Podger. Thank you very much. (The witness withdrew) THE CHAIRMAN: Now then tomorrow, Mr Martin? MR MARTIN: Tomorrow, my Lord, Mr Sylvester-Evans will be called back to, I hope, provide a relatively brief resume on the evidence which has been heard in addressing the recommendations which he spoke to on his first occasion that he appeared. I think also then the arrangement was he would be available for answering questions from others in any event and, following that, my Lord, that will conclude the evidence before the Inquiry. THE CHAIRMAN: We will sit tomorrow at 12 noon or as soon thereafter as possible. Mr Martin, Mr McBride, myself are involved in a rather important ceremony at 10.00 in Edinburgh, which is the reason we are delayed. I hope that does not inconvenience people unduly. We will have Mr Sylvester-Evans and then there will be no further evidence tomorrow. Then we will hear submissions on Thursday and Friday of next week. page 134 I think there has already been a notice circulated giving the order of submissions I am proposing. The only other thing is, Mr Martin, I wondered if Mr Sylvester-Evans would be good enough to consider in detail the distinction that Mrs Caldwell sought to draw between registration and licensing. I am bound to say I had not focused on that and I do not think any of the other evidence has, but it is a point that we will obviously have to consider. MR MARTIN: Yes. I am sure that can be done. THE CHAIRMAN: Are there any other administrative arrangements that anyone wishes to raise? That being so, we will reconvene tomorrow at 12 noon. (3.35 pm) (Adjourned until 12.00 noon the following day)