page 1 Thursday, 13th November 2008 (10.34 am) MR MARTIN: My Lord, as the procedure indicated to the core participants described the procedure for this morning is that each of the core participants has been invited to provide a closing submission insofar as they wish to do so, but before that, my Lord, and as indicated, it would be my intention to make a brief closing statement on behalf of Counsel for the Inquiry simply for the purpose of setting the scene, as it were, for closing submissions. Copies of that are available but I am not quite sure physically in existence yet but I hope that what I am about to say is not intended to be in any sense contentious, but obviously that will be a matter for those in their oral submissions in due course. THE CHAIRMAN: So your statement then is being printed at the moment, is it? MR MARTIN: I understand it is being printed. I am afraid I had something of a technical difficulty with my own computer this morning for some reason. But I am happy just to continue because, as I say, I hope that it will not be contentious but it may be that if it has not arrived by the time that I am finished, then parties can make appropriate submissions. page 2 THE CHAIRMAN: Something to be taken home and read and enjoyed. Does anyone have any strenuous objection to this? I know it would be helpful for parties to have copies of the closing statement but as soon as they come we will circulate them. Closing statement by MR MARTIN MR MARTIN: Thank you my very much, my Lord. The purpose of this statement is to identify the principal issues which require to be resolved and upon which Inquiry Counsel consider that it is likely that the Chairman will wish to make findings and upon which he may make recommendations and to give an indication to the core participants of these matters now so as to allow any additional oral submissions to be made today and beyond those which are about to be delivered. The first list of issues comprises those which Inquiry counsel have identified as relating to the likely findings of fact based upon the evidence which has been led in Phase 1 and Phase 2. The second list comprises those matters which remain to be resolved in respect of the recommendations made by Mr Sylvester-Evans and following all of his evidence in phase 2. The matters to be referred to are not intended to be page 3 comprehensive of all the issues upon which finding may be made but rather to relate to those which appear to Inquiry counsel require to be addressed following the conclusion of the evidence. This is done by identifying the nature of the issue in question and not by making any substantial submission. So I deal with the first list, my Lord, that is to say -- I might just pause for a moment because I think it is about to be handed out. (Pause) (Handed) The introductory passage I just read comprises three full paragraphs on the first page and I am now turning to list first the issues to be resolved in respect of findings of fact: the occurrence of the explosion and the cause of that explosion; the effects of the explosion on the building; the corporate structure and ownership of the ICL Group of companies, in particular ICL Plastics and ICL Tech and the respective responsibilities of these companies; the respective responsibilities of directors of ICL Plastics and ICL Tech for matters relating to health and safety; the legal and practical circumstances of the creation of the LPG installation at Grovepark Mills in 1969; the installation of the pipework carrying LPG in 1969; the raising of the yard in the early 1970s and the effects on the LPG installation; the original construction and page 4 layout of the pit area located to the west end of the mill building and the work carried out in or about 1980 to add a new steel floor at ground floor level; the effects on the LPG installation of the construction of the steel floor at ground floor level; the inspections of the LPG installation by Mr Gunn of the HSE in 1981/82; the recommendations made to ICL Tech as a result and the adequacy of those inspections and recommendations; the steps taken by Mr Stott and Mr Downie of ICL Tech and ICL Plastics respectively to comply with the recommendations made by the HSE in 1982 and the adequacy of those steps; the steps taken by the HSE to ensure that ICL Tech complied with the HSE's recommendations and the adequacy of those steps; the inspections of the LPG installation by Mr Ives and Mr Tyldesley of the HSE in 1988 and the recommendations made to ICL Tech in 1989 as a result; the attitude of Mr Stott and Mr Downie of ICL Tech and ICL Plastics respectively to those recommendations; the involvement of Calor on behalf of ICL Tech in dealing with the HSE and in making counter-proposals to the HSE's recommendations; the proposal by Calor Gas to test the LPG pipework by external examination and pressure testing; the response of Mr Stott of ICL Tech to the discussions between the HSE and Calor and the HSE page 5 recommendations; the willingness on the part of HSE inspectors to depart from their recommendation to evaluate and examine the buried LPG pipework; the steps taken by ICL Tech to comply with the HSE's recommendations and the adequacy of those steps; the steps taken by the HSE inspection regime to follow up the agreement which was reached with Calor to ascertain the condition of the buried LPG pipework; the change of LPG supplier by ICL Tech in about 1998 from Calor to Johnston Oils Limited; the installation of the new LPG tank by Johnston Oils; the further work and inspections carried out by Johnston Oils on the LPG installation in the period from 1998 to 2004; the responsibilities of ICL Plastics and ICL Tech with regard to the underground LPG pipework in the period from 1969 to 2004 and the steps, if any, taken by them to comply with those responsibilities; the risk assessments carried out by ICL Tech in the period between 1996 and 2002 and the adequacy of them in relation to the underground pipework; ICL Tech's choice of the individuals trusted with carrying out those risk assessments and the experience of those individuals; the adequacy of the systems adopted by HSE to ensure that follow-up visits which had been noted were carried out; the steps taken by the HSE to ensure that information concerning page 6 significant events relevant to the safe storage and use of LPG, in particular information concerning the explosion at Daventry in 1987, was brought to the attention of HSE inspectors who ought to have been aware of it; the adequacy of the HSE inspection regime with regard to the continuing existence of the buried LPG pipework between 1999 and 2004; whether the HSE have taken adequate steps since 2004 to ensure that inspectors are aware of the dangers surrounding underground metallic LPG pipework; whether the HSE have taken adequate steps since 2004 to ensure that information regarding incidents, in particular those involving LPG, is disseminated to inspectors; the reasons why the HSE departed from the inspection regime described in the guidance FIC286/43 in 1980 and provided a less specific regime in subsequent guidance documents, despite being aware of the fact that the corrosion of a buried LPG metallic pipework was potentially more serious with the passage of time. I then turn to matters in respect of the recommendations. The Inquiry will require to consider the extent to which the recommendations put forward by Mr Sylvester-Evans should be adopted. It is noted that there appears to be little or no disagreement regarding many of the recommendations, for example, those relating page 7 to the introduction of a strategy to replace all buried LPG pipework, safety dossier, the provision of more detailed guidance on how to fulfil statutory duties, the improvement of communication between LPG suppliers and users and the collation of data regarding LPG incidents. The following is therefore intended to be an indication of those areas in relation to which a difference of view has emerged and where a specific issue may require to be determined as follows: whether there should be a uniform position adopted by LPG industry as to the point to which an LPG supplier's responsibility for an LPG installation extends; if such uniformity is to be recommended, whether there should be a recommendation as to the specific point to which the supplier's responsibility extends, for example, the vapour offtake valve or the entry to or exit from the first stage regulator or whether the determination of the specific point should be considered further in consultation between the LPG industry and the HSE; whether there should be a recommendation that LPG installations should be marked in such a way, for example, by notice or colour coding so as to indicate the division of responsibility to the different parts between supplier and user respectively; whether the Gas Safety Installation and Use Regulations 1998 should be page 8 extended to apply to industrial as well as domestic premises and, if so, whether there ought to be a specific recommendation as to the extent to which they should be so extended or alternatively whether that matter ought to be subject of further consideration in consultation between the LPG industry and HSE; whether there is justification for a verification scheme which requires the users of LPG to have the integrity of installations verified by an independent competent person; the appropriate method of accreditation of persons who are required to carry out work on LPG installations and those who are required to act as an independent competent person for the purposes of a verification scheme; whether legislation ought to be introduced to make it a criminal offence to supply or use an LPG installation which does not have an up-to-date verification certificate; whether further guidance is required to assist duty holders in considering whether the structural safety of existing buildings is commensurate with the nature and use of the workplace including foreseeable hazards and risks which arise in the workplace; whether a scheme should be introduced for the registration of LPG suppliers and, if so, whether it should involve some form of accreditation of suppliers; the appropriate timescale for the page 9 finalisation of a replacement strategy for underground metallic pipework; the appropriate timescale for the introduction of other recommendations; whether specific recommendations made by the Inquiry may be brought into force by way of appropriate Codes of Practice and guidance or whether primary or secondary legislation is necessary. That concludes the statement and, as I indicated, it is simply an intention to assist by reviewing what is seen by Inquiry Counsel to remain potentially to be the subject of resolution by your Lordship. THE CHAIRMAN: Thank you very much, Mr Martin. That is certainly very helpful to me. The next party in order will be Calor. MR SHELDON: My Lord, Calor has lodged a written submission in advance of today's hearing and unless my Lord specifically wishes me to do so. I do not propose to read through that. It is fairly lengthy at around 15 pages. What I can do, my Lord, is summarise that, if I may, and to add one or two comments about the submission. THE CHAIRMAN: I am a little concerned for the families. Do they have a copy of your statement? MR SHELDON: I am perfected content to read the submission if that would be of assistance. page 10 THE CHAIRMAN: It would help them enormously but by all means present it as you think best, Mr Sheldon. MR SHELDON: I am just arranging for extra copies to be handed other to the families, my Lord. (Pause) Closing statement by MR SHELDON MR SHELDON: The submission sets out in a number of sections Calor's position. The first is a very brief background section and there is perhaps no need to look at that in longhand, I think. There is then a section on the cause of and responsibility for the ICL tragedy and again, my Lord, it may be there is no real need to read that out in length. These are in essence Part 1 issues and they are simply rehearsed briefly here by way of background, by way of emphasising that in Calor's view the principal duty holder at this site was ICL and it was the combination of factors and failures by ICL that led to the tragedy which Calor notes that that perhaps unique combination of factors and failures was not typical for sites of this type. Moving on, my Lord, to paragraph C at page 3 of the submission. THE CHAIRMAN: Before you go on, Mr Sheldon, I am a little concerned about item 5 in section B which is at the foot of page 2. I am not quite clear what your point there page 11 is there in relation to the addition of a stenching agent. That was the case, was it not? MR SHELDON: It certainly was the case that a stenching agent was added. It is simply seeking to give colour to the point made in section 5 that it was incumbent on ICL to train staff properly on gas detection measures and that would include, no doubt, a particular reference to any smell of gas and so on. I do not know if it goes further than that, my Lord. So section 3 at page 3, my Lord, is as follows. Paragraph 10: "Calor is fully aware of its responsibilities under Section 3 of the Health and Safety at Work Act which relates to persons who may be affected by its 'undertaking'. Calor's position is its undertaking relates to its LPG storage vessels and equipment which Calor owns and maintains and into which it supplies LPG. LPG suppliers have no control customers' premises or over equipment and activities located on those premises comprising the customers' undertaking." My Lord, if I may simply interject at that point, I think, it is perhaps that issue and that point that represents the crux of this matter and indeed Mr Sylvester-Evans acknowledges, certainly in his summary report at the end of the evidence in this case, page 12 that LPG suppliers should not be responsible for service pipework and that in Calor's submission that aspect of matters informs any question of whatever the statutory duties may be. My Lord, I say a little more about this because although my Lord indicated at the end of last week that the question of statutory duty was not part of his remit, nonetheless the issue is raised by the HSE submission and I think it is important to emphasise what Calor's position is on this particular matter. Section 3 of course of the Health and Safety at Work Act and the effect of it is dependent on the extent of the employer's undertaking and paragraph 10 sets out, in my submission, clearly what Calor's view of that particular matter is. In paragraph 11 the submission goes on: "In relation to section 6 of the Health and Safety at Work Act, Calor fulfilled its legal obligations by the provision to the customer of a material safety data sheet and information and advice on the safe use of LPG. We explain to customers their responsibilities as detailed in Henry Betts' statement. Calor also conducts tests upon LPG to be supplied to customers ensuring that it complies with BS4250. Furthermore, section 6 (10) of the Health and Safety at Work Act requires the person to page 13 properly use the substance in accordance with the information provided by the supplier. The information Calor provides includes the welcome pack which emphasises the contractual arrangements in respect of ownership of the installation and clearly states that the service pipework and regulators are the customer's responsibility and must be maintained by the customer. "Prior to the welcome pack, the same information was contained in Calor's publication 'Health and safety information for bulk users'. To put a wider interpretation on these provisions would have significant consequences for all industry sectors notably a duty to inspect, risk assess and maintain pipework, potentially including elderly pipework, on and in premises wholly controlled by the occupier. Notwithstanding the practical difficulties arising from such an interpretation, there would be significant resourcing and funding implications, and it is likely that it would be difficult to obtain insurance in respect of any such liability." I pause again, my Lord, finally to note in that respect that the HSE's own witness, Mrs Caldwell, specifically said that she had not, HSE had not previously thought of the interpretation of section 6 at one point being set out by Counsel to the Inquiry and, page 14 indeed, in relation to section 3 certainly my recollection is that her view of the section 3 interpretation being proposed was that in any event the application of section 3 would depend on specific circumstances and that, my Lord, is perhaps all I want to say on that particular matter. At paragraph 12 the submission goes on: "Suppliers have no control over what happens on a customer's site. A site owner/operator is in the best position to inspect, maintain and to ensure the integrity of pipework downstream of the vapour offtake valve. He or she should accordingly retain responsibility for everything on site. He can employ/hire appropriately qualified engineers to carry out this work. An extension of the GSIUR to factories and other industrial sites (as Calor and others recommend) would ensure that the site owner/operator only used CORGI registered engineers possessing the relevant ACS certificates of competence thereby raising standards of installation and ensuring consistency throughout the LPG industry. Moreover Calor would recommend the introduction scheme or alignment of the existing scheme which would enable skilled natural gas mains and service layers to install and maintain LPG service pipework. This will increase the available page 15 labour pool. "Calor consider that the vapour offtake valve provides an appropriate and an ambiguous demarcation point for the division of responsibilities as between supplier and customer." My Lord will recall that Mr Sylvester-Evans really suggested that the particular demarcation point was a matter for the industry and it is certainly Calor's view the adoption of the vapour offtake valve would avoid any potential difficulties in cases where the first stage regulator is -- for what may be perfectly good reasons -- remote from the vessel. During the Inquiry references have been made to similarities between the natural gas and LPG industries. However, one important fundamental difference between the two industries in relation to the supply of gas should be borne in mind. In the case of natural gas, the customer has no control over a gas escape upstream of the emergency control valve. Natural gas suppliers have responsibility for this and have a statutory right of entry to help fulfil this responsibility. In the case of LPG, the customer has complete control over the gas supply and the supply of gas into the service pipework by simply closing the isolation valve on the vessel if there is an escape of gas." page 16 Calor summarises the respective responsibilities of suppliers and customers and the relevant current governing legislations in its answer to question 10 of the Inquiry's request for information document through the use of a diagram. It also sets other the strengths and weaknesses of the current LPG system, as Calor sees it, which are also covered in section 2.1 of Mr Sylvester-Evans' report, 9th September 2008. The next section, my Lord, deals with correspondence between HSE and Calor 1988/1989: "The Inquiry has heard evidence regarding that correspondence [which was sometimes referred to in evidence as the Calor compromise] between Calor and the HSE in respect of the period 1988 to 1989 in respect of the pipework at Grovepark Mills. The HSE proposed that the pipework be excavated. "Calor's employee, Mr Coville, made certain counter-proposals. In particular he proposed that the condition of the pipework would be established by a pressure test and by examining the riser pipe at vessel exchange. Such exchanges are not uncommon between industry and HSE. The Calor proposal was one which was in line with the published HSE and industry guidance then in force, namely HS(G)34 and LPG ITA Code of Practice number 1 of 1978. page 17 "It is acknowledged that HSE officers have given evidence to suggest that the proposal did not accord with that guidance and that assertion is repeated in the submission for HSE." My Lord, the HSE is of course entitled to that view and that view is explicable, in my submission, in the light of HSE's internal guidance FIC286/43 which was looked at in some detail. But it was acknowledged in evidence that HS(G)34 is at best -- and in particular the applicable paragraphs of it -- ambiguous. It is submitted that Mr Coville's proposal was certainly in line with the relevant industry guidance, and it is submitted that any suggestion that it did not accord with HS(G)34 cannot survive the published terms of that guidance. It is a matter of course for my Lord, but that is the submission of Calor. In any event, my Lord, it is plain that the HSE and in particular the person with whom the HSE's proposals originated ultimately accepted the proposals made by Mr Coville. THE CHAIRMAN: You say on the wording of the compromise that you could not reasonably interpret it to mean that excavation was involved. MR SHELDON: I do say that, my Lord, yes. However, Calor wish to emphasise that they enjoy and page 18 hope to continue to enjoy a good working relationship with HSE. They note that Calor supports HSE initiatives on a number of health and safety matters and have good working relationships with HSE at both the local field and national policy level, as is clearly demonstrated by Calor's willingness to discuss health and safety matters and to share information and data of its research work into the corrosion of underground metallic pipework with HSE. Section F, recommendations made by Mr Sylvester-Evans: "Calor broadly support the recommendations made by Mr Sylvester-Evans in his report of 9th September 2008." I would wish to emphasise that support, my Lord, and simply say in general terms the following are observations dealing with particular and some practical matters arising from those recommendations. In relation to recommendation 1: "Whilst attempts are made to reduce the number of interfaces between Calor and its customers, cognisance has to be taken of the requirement for technical support and competent advice to be available to all staff, particularly those in customer-facing and sales roles who are likely to have the primary interfaces with the customer. As a responsible supplier Calor ensures that page 19 it is fulfilling its duties and on occasions this will create the need for the involvement of staff with more specialist technical skills thus increasing the number of interfaces with the customer. "Calor is committed to providing clear and concise information to is customers. A copy of the pack provided to new bulk customers has been supplied with Calor's completed questions document. The ownership of service pipework and installation pipework, and responsibilities arising there from, are communicated by Calor to its customers within the terms and conditions of their supply contract [that is commercial gas order or CGO] through the customer information welcome pack provided to new customers, through technical publications, through Calor's website and by separate additional information provided at other points, for example, when there is a change in the regulations or in support of an HSE initiative, for example, the issue of the HSE's 'Checking LPG pipework' document and the issue of a gas safety information card to all its bulk customers. "Each party must, however, take responsibility for the duties incumbent upon them under the various applicable regulations. The LPG industry is not a regulator and has no regulatory function or powers. page 20 UKLPG already issues comprehensive guidance and recommended practices for its members through its Codes of Practice which are reviewed and revised on an ongoing basis." Calor endorse recommendation 4 in its entirety. "Recommendation 5 is, in Calor's opinion, a restatement of requirements which are already embodied in the current regulatory framework certainly for systems operated at above 0.5-bar in terms of the Pressure Systems Safety Regulations 2000. "While cathodic protection is undoubtedly an effective method of protecting underground metallic service pipework against corrosion, it is Calor's opinion that it is more appropriate and cost-effective, to replace metallic underground pipework with polyethylene which has a minimum 50-year life-cycle and eliminates the risk of corrosion rather than applying cathodic protection to protect aging service pipework that will require replacement at some time in any case. "In order to install a cathodic protection system on existing underground pipework it is necessary to undertake one or two excavations (depending on the length and diameter of the pipework) in order to fit the sacrificial anode or anodes and make a connection to the service pipework, as well as installing insulating page 21 fittings at each end of the pipe (to isolate the underground pipework and limit the section of pipe that is subject to cathodic protection). "As LPG installations are typically rural a significant proportion of the cost in undertaking LPG work on site is associated with travel, when these costs are added to the work required to install cathodic protection retrospectively, it becomes far more attractive simply to replace the pipework, particularly given that the pipework is likely to be corroding to some degree. Furthermore, in the case of LPG installations, it is likely that the majority of service pipework requiring replacement would consist only of metallic risers. This makes the retrospective installation of cathodic protection even less attractive as it would require two excavations to install sacrificial anodes to protect the vessel riser and the riser at the building and installation of insulating fittings in order to protect approximately 1.2 metres of small bore metallic pipe. "As the installation of cathodic protection requires the installation of insulating fittings to the service pipework, the work must be carried out by competent (usually CORGI registered) engineers. This may divert engineers who otherwise might undertaking the page 22 replacement of high risk metallic underground pipes or more likely (as in practice it is likely that the engineers would replace the pipework in preference to fitting cathodic protection) result in pipework being replaced in an order not based on risk. 6 and 7: "Calor does not oppose the principle of a verification scheme. However, there are a number of practical issues to take account of when considering such a scheme. For example, Calor installations commissioned post 1992 are most likely to have non-corroding polyethylene or PE pipework, as would any new Calor installations, so the verification scheme for these would be different from those with buried metallic pipework. It is possible that the proposed safety dossier could be formatted so as to contain sign off of the pipework for a defined time period by a competent person thereby negating the need for a verification scheme. Calor and other responsible suppliers of LPG already have well developed safety and certification systems in respect of bulk vessels and it is submitted that these are adequately protected by the current regime under the PSSR. A verification scheme for service pipework and installation pipework would require an accreditation body to be appointed to oversee such a page 23 scheme and accredit competency. Any such scheme would require a lengthy transitional phase to allow the training and accreditation of engineers. This would represent a significant diversion of resources from any phased pipework replacement programme. 8: "LPG suppliers have no statutory or regulatory rights to enter customers' premises or inspect a customers' service pipework, installation pipework or installations. It is unlikely that the HSE have either the skills or the resources to undertake such compulsory inspections of all existing sites. Calor, through its subsidiary company CalorForce Limited, does provide a service whereby customers can contract with them to have their pipework inspected, upgraded or replaced as appropriate. As mentioned in paragraph 5 above, Calor currently has a pipework inspection strategy and risk-based replacement programme in place for underground metallic pipework which it owns. LPG suppliers could offer such services to their own customers; however, the current regulatory framework does not provide a mechanism whereby customers can be compelled to have such work undertaken mainly for consideration of whether such a mechanism ought now to be provided. page 24 9: "Calor has worked in conjunction with its fellow members of UKLPG and the HSE to produce and distribute to all its customers a pamphlet on commercial installations highlighting to customers their statutory duties. This was issued to all customers in conjunction with a letter, a copy of which is enclosed in the pack appended to Calor's completed questions document, offering further advice, inspection and/or upgrading as required." Calor has no comment to make in respect of regulation 10. 11: "It is respectfully submitted that the duties imposed upon LPG suppliers under the Health and Safety at Work Act 1974, the Management of the Health and Safety at Work Regulations 1999 and the PSSR regulations 2000 already incorporate the requirement for these documents to be held and made available to customers on request. 12 and 13: "Calor would support UKLPG in creating and agreeing a template for such a 'safety dossier' with the HSE and would endorse this recommendation. 14: page 25 "There is already in existence a wealth of information available to users from UKLPG, the HSE and individual LPG suppliers. Calor produces a pack of information given to new customers and all customers are updated about key developments. A copy of this pack is included in Calor's completed questions document. Calor will continue to work with other industry members and UKLPG to produce information from time to time as appropriate. Reference is also made to the leaflet produced in conjunction with the HSE and distributed by LPG suppliers to all their customers at the request of HSE." Calor has no specific comments in relation to recommendation 15. 16: "Calor already retains records of all reported gas emergencies and incidents. It discusses these findings at senior management meetings and disseminates information as appropriate. It also participates in the exchange of information through the forum of UKLPG. Co-operation and assistance is provided to the HSE when incidents are being investigated. Calor participates in best practice exchanges with UKLPG and in the issuing of safety alerts by UKLPG to its members and within Calor itself. Calor has expressed concern to the HSE and page 26 others that some LPG incidents are not reported to the LPG supplier. Calor typically becomes aware of such incidents through press coverage but does not receive notification from the HSE and/or the emergency services." 17 and 18: "Calor has developed a pipework inspection strategy and a risk-based model for the assessment of pipework, further details of which are given later in this submission." 19: "Calor would endorse this recommendation and would additionally recommend that LPG suppliers should be required to demonstrate competence to provide information on pipework installation and maintenance. Calor would also suggest that such a registration scheme should be drawn up by representatives of UKLPG and CORGI (or its successor body run by Capita) and that the scheme should be operated by CORGI/Capita." 20: "Calor does not believe that a verification scheme is the best approach for the reasons previously outlined. Calor would respectfully recommend that these matters could be adequately and appropriately be dealt with by the extension of the GSIUR to cover industrial page 27 sites which would ensure that only LPG qualified engineers would work on and connect to LPG systems and that it would be a criminal offence to do so without the appropriate qualifications. Calor believes that a verification scheme would be impractical because of the limited resource available to provide competent engineers, the timescales involved and the competitive disadvantage against other fuels and other packaged flammable goods such as hydrogen and acetylene; and that it would require a change in the law to ensure it is applied consistently." Calor has no specific comments in relation to 21, except in relation to the need for realistic timescales. In section G, Calor goes on to give its own views and recommendations on these matters and they say that: "The industry is on the whole operating safely, efficiently and effectively under the existing regime whatever its current potential or perceived flaws. This is confirmed by the statistics presented in Mr Sylvester-Evans' report of 9th September 2008. Calor's installations commissioned post 1992 are most likely to have non-corroding PE pipework as would any new Calor installation. Therefore, in Calor's opinion, any proposed action recommended by the Inquiry needs to be proportionate to the risk and not to pose an page 28 unnecessary burden on any of the stakeholders involved. "Calor would, however, make the following specific proposals: "(1) Calor submits that the GSIUR regulations should be extended to fully cover industrial sites (ie factories) in addition to existing domestic and commercial sites. It is difficult to see why the specific LPG and prescriptive requirements of GSIUR which are suited to a whole variety of other premises should not be applied to factories. This would ensure a consistent approach to gas safety and a minimum level of engineer competency across all LPG installations. Specifically, amongst other requirements, it would make it mandatory to use a suitably qualified LPG CORGI engineer to install service pipework. "(2) Suitably qualified LPG CORGI engineers are required to hold various ACS [Accredited Certification Scheme] certificates of competence to carry other certain types of gas work. Calor recommends that the relevant ACS assessments for install LPG underground pipework are reviewed to ensure they include awareness of the issues involved regarding buried metallic pipework. "(3) The elevation and status of the current LPGA (UKLPG) Codes of Practice, which have been developed page 29 through the consultation with the HSE in any event, to the status of Approved Codes of Practice fully approved and endorsed by the HSE. In Calor's opinion this is preferable to a trade association, such as UKLPG, policing the activities of its members (who entirely finance it) through Codes of Practice, for example through the new guidelines recommended by Mr Sylvester-Evans on ownership and the division of responsibilities between suppliers and customers. Such UKLPG codes only bind members of UKLPG whilst ACop's would apply to all operators within the industry. "(4) Calor does not believe that there is a need to make wholesale changes to the regulations and codes of practice to improve the way in which the LPG industry currently operates in relation to small commercial and industrial sites and recommends that this not be done. As referred to earlier if ICL had fulfilled its duties under the existing legislation which imposes clear duties on site operators, Calor believes that this tragedy would have been avoided. However Calor has recommended improvements that could be made reasonably quickly and would be both cost-effective and practicable. These are set out in this section and also in Calor's answers to the Inquiry's questions document. Subject to the practical considerations already referred page 30 to, Calor supports the recommendations made by Mr Sylvester-Evans. "(5) Calor has been proactive in taking steps to address issues arising from the ICL incident. It has not waited for the outcome of this Inquiry. As the Inquiry has heard in evidence, Calor has already carried out its own research on underground metallic pipework and has developed a strategy and risk-based model for prioritising the replacement of underground metallic pipework. It has shared information gained from this research with the HSE and UKLPG and is currently awaiting confirmation from the HSE in relation to the validity of Calor's risk-based model. If the LPG industry is require to undertake this task for customer-owned pipework, Calor would recommend that funding from the UK Government is made available to help the industry to do so. "(6) there was no existing research available to Calor and LPG industry to suggest that there was a wide-scale corrosion problem relating to underground metallic service pipework. The industry was of the view that any corrosion problem was related to unprotected poorly protected and/or poorly installed underground metallic service pipework and that these installations were few in number. page 31 "The main purpose of Calor's research work was to further its understanding of the mechanism of corrosion of LPG service pipework; the factors which affect the subsequent migration of escaping LPG gas and the potential for explosions to occur. Once this was established the next phase of the research was to determine the size and extent of the problem and this work is continuing. "Calor estimates that there may be around 50,000 underground metallic mains and service pipes across the LPG industry for domestic, commercial and industrial installations which may need replacing (only a relatively small proportion are believed to fall within the high risk category). This is a similar problem, albeit on a much smaller scale to the corrosion of iron mains and services in the natural gas industry. With the current resource of competent persons available to undertake excavation replacement and reinstatement work it is not possible to replace all the service pipework immediately. Calor believe that the most appropriate way of dealing with the problem is to replace those pipes most at risk first and in order to achieve this it has been necessary to research and develop an appropriate methodology. "In order to best utilise the available competent page 32 resource Calor developed a replacement model which prioritises based on risk after considering all of the factors determined during Mr Tomlin's research. "Calor has invested significant time and resource in this qualitative and quantitative work which includes the acquisition of the soil data, the physical examination of 500 sample installations and the development of its risk-based mathematical prioritisation model. "Those pipes that have been found to be in the high risk category [within that sample] have been and are being replaced with the PE pipework. "Because this is not a problem unique to Calor, the information was shared with the HSE and the LPG industry through UKLPG. Without the knowledge gained from this research, the industry would not be in a position to tackle this problem in an effective and targeted manner. It should also be noted that the models being used by natural gas industry are not directly applicable to LPG. One of the mean reasons for this is the natural gas models are based on statistical geographic probably of failure. As natural gas distribution mainly in urban conurbations and LPG is largely rural, the information gained from that research is not directly relevant to LPG installations. page 33 "This information has also advanced the HSE's understanding of the problem and limited the amount of research the HSE needs to undertake in order to help resolve the problem. "The model will be applied to every consumer on Calor's customer database to determine the priority in which the service pipework should be replaced. The timescale for replacement will depend on the availability of competent personnel and funding which Calor hopes will available from public funds in order to help customers replace their pipework in line with the prioritisation model. "Based on an extrapolation of its research Calor estimates that potentially 50,000 underground metallic pipes and metallic risers across the LPG industry for domestic, commercial and industrial installations may need to be replaced at an indicative total cost to the customer of £45 million. However, as noted Calor believes that only a relatively small proportion of that number fall within the high risk category. "Calor believe that the industry needs to put in place an underground metallic pipework and riser replacement programme and that a reasonable amount of time is needed to complete that programme. Taking into account the current qualified resource available to page 34 undertake the work, this period is unlikely to be less than ten years. Pipework assessed as posing a high risk would be replaced such more quickly than this however." Mr Betts evidence was it was likely to be a period of about a year. "Moreover that timescale [the overall timescale] could be reduced by increasing the number of competent engineers and the availability of public funding. The number of competent engineers could be significantly increased by the appropriate certification of qualified natural gas engineers as suitable to work on LPG installations." Those are the submissions and proposals for Calor, my Lord. THE CHAIRMAN: Just one question, Mr Sheldon. It is obvious that PE pipework has been the industry standard now for quite a number of years. There was evidence earlier on that there was a difficulty about having risers with PE because of the vulnerability of the PE to UV light and that is a problem but that could be achieved by some form of protection of the pipe not just against UV but also against accidental damage. Does Calor have any preference on that question between metallic risers and PE risers? MR SHELDON: If my Lord would bear with me a moment. page 35 (Pause) I am obliged to those instructing me, my Lord. Yes, I understand that certainly Calor's preferred practice and current practice is to use PE all the way through the system. Indeed, I am told there is an illustration of that in the demonstration model which is before the Inquiry showing the PE pipework with the protective sleeve which is the type of appropriate protective sleeve put in place in the riser section. THE CHAIRMAN: Thank you very much, Mr Sheldon. Mr Gray, please. Closing statement by MR GRAY MR GRAY: My Lord, at the conclusion of Phase 1 of the Inquiry, the proposed findings of fact and submissions regarding measures which could have prevented the tragedy of 11th May 2004 were made in writing on behalf of Johnston Oils Limited. There is nothing which Johnston Oils would wish to add to those submissions in relation to the matters which were examined in Phase 1 of the Inquiry. Prior to the commencement of Phase 2 of the Inquiry submissions regarding proposed recommendations in the light of the lessons identified in Phase 1 from the causation and circumstances leading up to the incident were made in writing on 23rd September 2008 on behalf of page 36 Johnston Oils. At paragraph 2 of those submissions, it was stated that and I quote: "Johnston Oils has had the opportunity to consider the most recent report of Mr Rod Sylvester-Evans dated 9th September 2008. Johnston Oils does not disagree in principle with any of the detailed recommendations made by Mr Sylvester-Evans and is content to adopt all recommendations made, as demonstrated by Mr Alan Elliott on behalf of Johnston Oils in the most recent statement provided to the Inquiry in response to a series of questions relating to issues to be considered in Phase 2 of the Inquiry. In particular it is considered essential that the recommendations made by Mr Sylvester-Evans at paragraphs 3.3.3 and 7.2.4 of his report be adopted to ensure, insofar as is reasonably practicable, compliance with the other measures which he has recommended." Johnston Oils adheres to the position outlined in its earlier submissions and commends Mr Sylvester-Evans' recommendations as providing a number of measures which, taken together, provide a coherent framework to address the weaknesses of the regime of installation, maintenance and monitoring in respect of LPG pipework which were identified in Phase 1 of the Inquiry. In these circumstances Johnston Oils is content to page 37 restrict its submissions at this stage to consideration of certain aspects of Mr Sylvester-Evans' report in respect of which there did not appear to be complete agreement between core participants as identified by Mr Sylvester-Evans in the summary note on parties' views of RSE recommendations of 7th November 2008. The merits of the verification scheme. In response to the view expressed on behalf of Calor in evidence that a verification scheme was unnecessary if a safety dossier were introduced together with an extension of GSIUR to industrial premises, Mr Sylvester-Evans summarised the merits and purpose of the verification scheme at page 3 of his notes and I quote: "... an important means to encourage compliance by LPG users with their existing health and safety duties. Whilst there appears to be some merit in the selective extension of GSIUR to industrial premises to reinforce the issue of competency it does not ensure the ongoing compliance of health and safety duties where there is no change to the LPG system, pipework or appliances." Johnston Oils respectfully agrees with this view. Further, the introduction of any reform to the regime for the installation and maintenance of LPG systems will necessitate the recruitment by the industry of a significant number of engineers with little practical page 38 experience of LPG systems. In these circumstances, it is essential that a verification scheme is in place to ensure the quality of any safeguards taken by or on behalf of users. It is submitted that the frequency with which any particular safety dossier would require to be verified will in all cases be determined following initial risk assessment of each installation. Johnston Oils agrees that it would be appropriate for the UKLPG industry together with the HSE to establish appropriate systems and procedures for the appointment of independent and competent persons to implement any verification scheme. Implementation of a basic risk ranking method to prioritise LPG user sites. Johnston Oils agrees that the development of a risk ranking method must be a priority. However, as the Inquiry has heard, Johnston Oils has already taken robust steps to carry out surveys of all installations to which it supplies LPG and, where appropriate, to replace metallic buried pipework; a process which is likely to have been completed by 2009. Whilst it is accepted that it is entirely appropriate that a risk ranking method be developed, it is submitted that there is no obvious reason why other suppliers, in particular those of a similar size to Johnston Oils, should not begin to undertake the same process of survey page 39 and replacement immediately. Further, Johnston Oils would endorse Mr Sylvester-Evans observation that the development of a risk based strategy should not result in the other initiatives recommended by him being unnecessarily delayed the their implementation. Introduction of a registration scheme. The introduction of a registration scheme for suppliers of LPG is highly desirable in order to encourage a collaborative approach by the industry in the implementation of any changes to the LPG regime. Further, it is submitted that the likelihood of successful and efficient implementation will be enhanced by the adoption of Mr Sylvester-Evans recommendations that suppliers be accredited and that it be a criminal offence to supply or use LPG where there is not in place a verified safety dossier. These measures provide an example of the extent to which Mr Sylvester-Evans' recommendations complement each other and that, when taken together, provide an effective answer to the deficiencies which have been identified. In that regard, Johnston Oils would endorse Mr Sylvester-Evans' opinion that it is important when assessing any particular measure to consider it, not in isolation, but as part of an integrated set of recommendations. Extent to which LPG suppliers should be responsible page 40 for the integrity of equipment at a site. It would appear that there is a measure of agreement between core participants that it would be inappropriate for suppliers to be responsible for any pipework downstream of the first stage regulator. It is a view shared by Mr Sylvester-Evans who summarised the reasons at paragraph 22 of his note that: "To be responsible for the service pipe is (a) contrary to the Robens principle; (b) the supplier does not have management control over the day-to-day operations; and (c) has certain practical difficulties in assuming responsibility for existing pipework (such as insurance and risk assessment issues) and hence creates additional complexities." Johnston Oils would endorse these views. In the course of evidence led in relation to where responsibility should lie in relation to pipework downstream of the first stage regulator, concern appeared at one stage to be expressed regarding the lack of knowledge of the user in relation to LPG and pipework if given responsibility for service pipework. It is submitted that whilst it is of course correct that a supplier has generally much greater knowledge than a user in relation to LPG, any perceived risk that there may be associated with that lack of knowledge on the page 41 part of the user is removed by the recommendation that the user be required to maintain a safety dossier and that it be subject to periodic independent verification. Insofar as the precise point up to which supplier responsibility should extend is concerned, it is submitted that it is crucial that there be consistency throughout the industry in order that there is no risk of confusion between users and suppliers as to where respective responsibilities lie. Further, it is submitted that having regard to the fact that LPG is supplied in certain cases at high pressure, up to 7 bar in pipework from tank to first stage regulator, at commercial installations or to multiple tank installations where there may be extensive pipework between the tank and first stage regulator, it would be important in the interests of safety that responsibility for pipework up to the first stage regulator be restricted to the supplier. Further, it is submitted that suppliers' responsibility should include the first stage regulator which, it is understood, is an item of equipment the maintenance, inspection and replacement of which requires specialist skills which the majority CORGI registered engineers are unlike to possess unless they have had considerable experience in the LPG field. In page 42 relation to this aspect, it is submitted that responsibility to any degree for pipework should lie only with suppliers who own the bulk storage tank under consideration. Finally, Johnston Oils would wish to take this opportunity to express its deepest sympathies to the bereaved families and the survivors of this appalling tragedy. THE CHAIRMAN: Thank you very much, Mr Gray. Mrs Stacey, can you tell me how long you are going to be. I am just thinking about giving the LiveNote writers a break. MRS STACEY: To be frank, my Lord, I have not timed it but it might be a convenient moment to give a break because I have rough the same number of pages as Mr Sheldon had. THE CHAIRMAN: We will stop for ten minutes. (11.33 am) (A short break) (11.53 am) Closing statement by MRS STACEY MRS STACEY: My Lord, copies of the closing submissions on behalf of the Health & Safety Executive have been made available to everyone, including the families. The structure of these submissions, my Lord, is that the HSE was asked to answer certain questions further in page 43 evidence in certain particular cases and we have done so in the course of these submissions. There is expressed in the submissions broad support for the very helpful summary that Mr Sylvester-Evans gave on the last day of his evidence. What I propose to do, my Lord, is largely to read the submission in the hope of making sense of it. Where there are parts that I can read short, I will indicate that I am doing so. The findings and facts submitted on behalf of the Health and Safety Executive at the end of Phase 1 accurately record the events leading up to and culminating in the disaster at Grovepark Mills. Certain inspectors' evidence was unchallenged and taken as read. The submission, therefore, is that the findings in the document already lodged should be made. Certain matters of fact which were not established at the conclusion of Phase 1 have been established through the evidence in Phase 2. These factual matters are implicit in the submissions made below but they are not subject to separate proposed findings in fact. It seems to me, my Lord, that in Counsel to the Inquiry's opening statement this morning all of the matters in list 1 have been dealt with by the HSE in their findings of fact, with the exception of the last page 44 three and I will be able to say something those last three as I go along in this submission. The terms of reference of this Inquiry do not concern domestic LPG installations. However, the evidence has shown that both HSE as the regulator and UKLPG, which as we know represents the majority of supply companies, are working together to address the related risks which exist in that market. The Inquiry's recommendations will be fully considered for any assistance which they provide to that exercise. The HSE agrees that the principles set out by Mr Sylvester-Evans in paragraphs 2.6.2 and 2.6.3 of his original report, or at least I should say to be more accurate, my Lord, the report dated 9th September 2008 -- I appreciate there was an earlier one -- are those which should govern the Inquiry's approach to recommendations. Moving then to the context of LPG, at my Lord's request for statistics the HSE has provided certain statistics which are in annex 1 which is stapled to the back of these submissions. These show for non-fatal injuries at work that for the period 1987 to 1988 on to 1999, 2000 which is the last period for which useful statistics in the context of what have been asked for are available, falls from height, transport, slips and page 45 trips (which are referred to as S & T in the table in the annex) and manual handling incidents are responsible for the majority of injuries to people at work. The number of such injuries (that is injuries at people to work) caused by LPG has declined over the period and is a very small percentage of the total number of injuries at work. The HSE provided statistics in the document now known as HSE 5 in appendix 2 which show with regard to fatal accidents in the period 1986 to 2001 that incidents involving LPG were far fewer than those involving falls from height, transport and carbon monoxide poisoning. Similarly, in respect of major accidents for the 5-year period to 2006 into 2007 the primary causes are slips and trips, manual handling injuries, falls from height and being struck by a moving or falling object. The percentage of fatal accidents and major accidents caused by LPG is very small. Of course, my Lord, the HSE's position is that any accident, fatal or otherwise, is one accident too many but I put in these statistics in order to put matters into context. I should say that the figures relating to LPG include all incidents which involve that substance, that is they involve cylinders, tanks, transports, pipes and page 46 anything else in which LPG is the cause of the accident. To maximise its effectiveness, prioritisation of HSE's resources is informed by such statistics. It considers other matters also but these statistics are part of the matrix which it uses in prioritising. Moving on then, my Lord, to the history of work done at ICL and by that I mean work done by HSE inspectors, all of those inspectors carried out their work in the context of HSE priorities then current. We saw from the evidence that times changed between the 1970s and the time immediately prior to the accident. The LPG installation was noted during the 1980s and the unsatisfactory aspects of parts of it were raised with the user, with particular focus on the bulk tank including the risk of a BLEVE. No intervention regarding the underground pipe took place until after Mr Keddie requested a specialist report, resulting in Mr Ives and Mr Tyldesley visiting. Mr Tyldesley made the correct decision that the pipe should be excavated and examined. He advised Mr Ives of that. Mr Ives in turn advised ICL, who asked Calor for assistance. For reasons which have not been explained the now deceased Mr Clezy advised Mr Coville to suggest a compromise which it is clear would give no assurance of continuing integrity. page 47 Mr Ives asked Mr Tyldesley's advice. In doing so, he acted in accordance with normal HSE practice by seeking advice from a specialist inspector. Mr Tyldesley agreed to the compromise believing, as he said in evidence, that the Calor proposal would involve at least limited excavation of the pipe. THE CHAIRMAN: Mrs Stacey, in relation to that, I wonder if I could have your position on two points. Do you accept that if Mr Tyldesley did believe that the Calor proposal would involve excavation of some sort, his written response to Mr Ives did not spell that out. MRS STACEY: Absolutely, my Lord. THE CHAIRMAN: The other point is that after he responded to Mr Ives, there then followed the Ives/Coville exchange and that again did not spell out that excavation was part of the compromise. MRS STACEY: Absolutely again, my Lord; that is correct. Having regard to the terms of reference of this Inquiry no evidence was led in relation to the actions of HSE or any other core participant at any other location. No conclusions about work of HSE and its inspectors at other locations or at other times should be drawn. While no findings of fact are proposed, the evidence before the Inquiry demonstrated effective interventions on matters other than LPG at ICL. page 48 There is something wrong, my Lord, with that last sentence as written. It does not quite make sense but what I am saying, my Lord, is I do not propose any findings in fact be made because it is not relevant to the terms of reference, but I do simply note that there was some evidence about interventions on other things. Turning to guidance, my Lord, and by that I mean the written guidance of whatever form that is available for those concerned with LPG, while the focus in the Inquiry has been on the terms of reference and therefore on the guidance concerning LPG pipework, HSE does emphasise that it has produced a wide range of guidance on the industrial and commercial use of LPG and indeed on many other topics. That is available, my Lord, in writing and on the website. Since 1980 the guidance in connection with underground pipes carrying LPG has become more risk-based and goal-setting and therefore less prescriptive. In parallel, there has been development of relevant specific regulations which place detailed obligations, including inspection and maintenance on duty holders. Examples are given, my Lord, of various sets of regulations by the usual acronym. One of the matters which was raised by Counsel to the Inquiry in his closing statement, my Lord, is this page 49 question of the reason why HSE departed -- his last bullet point in his first list -- from the guidance in the FIC286/43 in 1980 and provided a less specific regime in subsequent guidance documents. The evidence of Mr Fulham, my Lord, set out the reasoning behind that. We heard that the guidance became, as I said, more risk-based and goal-setting in the way in which it was set out. But it should be noted, my Lord, that in any event the evidence before the Inquiry shows that the documents which are the DIN of October 2004, the Operational Circular 286105 and the Operational Circular 18/12 do set out in detail what ought to be done. I can give those references to the solicitor to the Inquiry, my Lord. I have the page numbers but I will not weary everyone with reading them out. THE CHAIRMAN: I have a note of those, Mrs Stacey. MRS STACEY: The relative risk -- my Lord, this is part of the same point -- posed by the liquid phase of LPG as opposed to the vapour phase explains to a degree the focus of external guidance and internal HSE instructions. By that I mean, my Lord, we have had evidence that a leak of liquid LPG may have much more serious consequences, though I am well aware of the very serious consequences that followed from the vapour leak page 50 at ICL. In addition, this contributes to the identification of what reasonably practicable measures might be required to manage the risk presented by a liquid conveying installation as opposed to a vapour conveying installation. Turning to HSE procedures, decisions by inspectors are, and should be, matters of professional judgment and the appropriate use of discretion. That being so, my Lord, there are consequences. Inspectors are expected to make consistent use of enforcement action. HSE has in recent years introduced and developed a framework known as the enforcement management model which is described more fully in HSE 5 and which was introduced in 1999. Turning to knowledge management, my Lord, which is my paragraph 14 but is also a matter raised by Counsel to the Inquiry, knowledge management on LPG and indeed other things is dealt with by HSE by its system of knowledge hubs in which a conscious effort is made to capture knowledge and to retain it. This is dealt with in Dr Fullam's evidence and also in HSE 5 at paragraphs 37, et cetera. The references are given. There is of course also a website, my Lord, which naturally one did not hear about in the lead up to the disaster at ICL because it is a more recent page 51 development. Counsel to the Inquiry makes particular reference, my Lord, to ensuring that information regarding incidents, in particular those involving LPG, is disseminated to inspectors. I can tell the Inquiry that knowledge is disseminated to inspectors concerning LPG in that new inspectors have this covered in in-house tutorials and in the postgraduate diploma which they undertake. There are regional briefings for existing inspectors. There is information on the website. There are press releases which of course inform others as well as inspectors, and I think I should say, my Lord, that if there is concern about the particular incident at Daventry and whether or not knowledge of that was properly disseminated, we know from the evidence that there was, in those days, an informal system whereby matters were supposed to be reported up and that in that particular case the system did not work. What we also know, my Lord, is that Mr Tyldesley, who is the inspector who did make the correct decision that that pipe should be excavated, was specifically asked about whether or not he knew of Daventry. His answer was that he did not but it did not make any difference because he knew what should be done without being told about Daventry. So a specialist inspector page 52 with all the qualifications which he had, my Lord, would be able to know from first principles and from his education what ought to be done and it is shown that that was in fact the position. So while the HSE of course, my Lord, accept that dissemination of knowledge is something to which they must pay attention, my submission is that they are doing so and that in all large organisations that is something which does require attention. I am going to move on, if I may, briefly to legal duties. Those on users are set out in the document known as HSE1 and I have given the references. HSE recognises and recognised in evidence that compliance with these legal duties so far as they relate to LPG installations needs to be improved and they will issue practical guidance to assist such users. The proposal, my Lord, would be that the guidance would be issued not by means of elevating industry Codes of Practice to approved Codes of Practice, which is a technique which of course has its place but which is something which takes time and which has a certain lack of flexibility. Given that there is an urgent priority to pay attention to what has happened in this disaster and to take steps, it is not proposed that that should be done by elevating Codes of Practice from the industry page 53 to approved Codes of Practice. Moving on to legal duties as regards gas suppliers, the statutory duties have been set out in HSE 1. If I can take this fairly briefly, my Lord, section 3 of the 1974 Act provides that every employer has a duty to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health and safety. It is HSE's position that, depending on the circumstances of a particular case, it may be that the conduct of the suppliers' undertaking in supplying LPG to an installation in the absence of sufficient information about the construction materials, the condition, the corrosion protection or the maintenance regime of buried service pipework does expose persons not in the suppliers' employment to risk. The risk is that by supplying persons with LPG when buried metallic pipes beyond the vessel may have corroded and be susceptible to leaks, persons within the premises are exposed to the possibility of danger. It is HSE's position that, in order to identify the reasonably practicable measures which the supplier must take to comply with his duties under section 3, a risk assessment specific to the individual user's site be page 54 carried out as required by Regulation 3 of the Management Regulations. That may be controversial, my Lord, and I appreciate that this is not the place for that to be decided but that, my Lord, I suggest is a possible reading of the law and is the HSE's position. THE CHAIRMAN: Mrs Stacey, would you accept that the preponderance of the evidence suggests that that is not the understanding of the industry? MRS STACEY: Yes. THE CHAIRMAN: So we have a problem then because if you are right in your interpretation of the law, there is a failure of understanding by the people who are most concerned; namely suppliers -- if you are right. MRS STACEY: Yes, which seems remarkable I have to accept, my Lord. THE CHAIRMAN: Thank you, Mrs Stacey. MRS STACEY: Moving on my Lord, the measures taken by J Gas since the incident to survey the installation at any premises where they are asked to make an change of tank and, again, my Lord, there is a typing mistake there take out the word "to", the surveys they are carrying out of all the customers' installations with a view to ensuring change of metal pipework (including the risers) are illustrative of what such reasonably practicable page 55 measures might be. Of course, my Lord will appreciate that I have said in paragraph 16 that this is dependent on the particular circumstances of the case, as these measures always are. The evidence in Phase 2 clearly demonstrated that a visual inspection and pressure test alone do not provide adequate assurance of the continuing integrity of the installation. This appears from the evidence to be the continuing practice of Calor, unchanged since prior to the ICL explosion. It is HSE's position, my Lord, that Calor are quite correct to say that they have a productive working relationship with Calor at national and local level there is co-operation. It also recognises the contribution which Calor makes to the work of the UKLPG and the research which is currently being undertaken, therefore the comments which I have just made are made within the terms of reference of this Inquiry and in relation to what happened at Grovepark Mills. As has just been pointed out to me, I do recognise that there may be a difference of view between HSE and others as to the responsibilities of the LPG suppliers more widely at other sites and, as my Lord just pointed out, that is a problem. Therefore, the HSE will seek to clarify this with the industry. It must be hoped, page 56 however, that the HSE, Calor and other suppliers will work together to improve standards at LPG installations, including discussing specific steps that they can take as responsible suppliers. None of the guidance referred to in the Inquiry written by HSE or by the trade association (now UKLPG but previously called other things) indicated that a pressure test alone was sufficient to establish continuing integrity of service pipework. The point I am making there, my Lord, is proper steps are required to be taken. I am at paragraph 18 now, my Lord, and I note of course section 6 and in particular section 6(4) of the 1974 Act is also relevant to the gas supply companies. As stated in evidence, the Health & Safety Executive will provide practical guidance to clarify duties and interaction and the overlap of the relevant duty holders' respective duties. The next section of my written submissions, my Lord, deal with clarifications of matters that arose in evidence and on which the Health & Safety Executive said it would provide further detail. They are written out in full and perhaps I can just alert, my Lord, to what they are. The first refers to incidents which were referred to in an HSE document and my Lord asks what page 57 they were. We have given a written answer to that. The next one, my Lord, relates to the application of Pressure Systems Safety Regulations of 2000. These are regulations, my Lord, which do not apply in all situations and it has been set out. Perhaps the first bullet point is the most important, that for an LPG installation these Regulations do not apply to buried pipework as there is no risk from the stored energy as a consequence of pipework failure. We have set other where these Regulations do apply. Turning to point C, my Lord, this concerned a matter raised by Mr Sylvester-Evans in his report and the Health & Safety Executive agree that standardisation in the demarcation of formal ownership between supplier and user for bulk tank installation will bring safety benefits. It considers that standardisation is best decided by the industry having regard to who is best placed and has the necessary competence to assess the risk. Its initial view is that the supplier should be responsible, in the sense of ownership, for the tank and its fittings, including pipework up to and including the first stage regulator. Good engineering principles and the industry Codes of Practice indicate that the first stage regulator should be located as close as practicable to the vessel, though I did note, my Lord, page 58 Mr Sheldon made the point today that that may not always apply. Therefore, inspection and maintenance of the upstream pipework and the first stage regulator can be undertaken at the same time as tank inspections and examinations. While the HSE sees the advantages of that, my Lord, it does accept that the industry is best placed to comment and they would hope to consult with them. The next question raised, my Lord, on which HSE was is the to give a view mass how practically to impose uniformity and what the HSE says about that is that it is best decided by the industry. HSE will meet with them, including user representatives not just suppliers, and discuss this particular point. If agreement can be reached, then that could be formally captured through guidance which is binding on members or through HSE guidance and HSE would expect that the industry would co-operate in this and would standardise their contracts. I think I should say, however, my Lord, that if the industry found it impossible so to do then this could not be imposed without legislation. The next paragraph, my Lord, sub-paragraph (e) concerns essentially cost benefit. HSE was asked about this. The position is that they will of course assist page 59 in this if that is recommended. The discussions about prioritisation must take place across all the recommendations. HSE cannot say at this stage what the plan and the timings (or priorities) will actually be until they have the information on the scale of the needed replacement programme and the resources available. HSE is committed to working with industry (and others who can assist, for example, local authorities) in taking the work forward. Mrs Caldwell gave evidence, my Lord, and it is suggested that the plan and the timetable for the priority replacement should be in place by June 2009. That plan will be time-bound, enforceable and supported by an inspection campaign, that being a function of a regulator, my Lord, and the HSE will to that. A question was asked about whether or not a driver survey had been considered and Mrs Caldwell indicated that we would come back on that. I am advised, my Lord, that such a matter was considered. However, it was thought that it would take up to 18 months and that there would be a degree of training required to maximise its effectiveness so it was not considered appropriate to be put in place without that. The training material has now been prepared and will be used. This of course page 60 is about identifying metal pipework in high risk areas. The next point, my Lord, was in response to a question from your Lordship which was that one of the questions that was on everybody's mind is the question of the extent of responsibility of the supplier in relation to the installation itself. The position, my Lord, is that HSE submit that the answer to this question has two aspects being the physical demarcation in the installation of ownership and the duties under health and safety legislation towards persons not in direct employment. Of course, ownership and a duty under the legislation are not the same thing. With regard to the first aspect, there is ne single criterion that applies. Consideration needs to be given to factors such as knowledge, competence and experience about LPG, extent of control of equipment, who is best placed to assess the risks. The position is set out in the paragraph above, numbered 20(c). With regard to the second aspects, relevant factors include the nature and extent of the undertaking -- this is the legal matter to which reference has already been made -- the magnitude of the risk and the reasonably practicable control measures. The next part, my Lord, under paragraph (h) relates page 61 to the Regulations usually known as DSEAR, which were made in 2002 and are concerned with dangerous substances and explosive atmospheres. In the numbered paragraphs which follow, there is an analysis of these Regulations. So far as they relate to duties about buildings, it might save everyone's time, my Lord, if I move to paragraph 8, which is on page 9, where essentially the conclusion following the analysis is that it would be disproportionate to provide explosion protection relief to all industrial buildings containing LPG because: "Explosions should not be an anticipated event in a properly controlled and managed workplace where the LPG system is properly designed, installed and maintained." That, my Lord, is not meant to state the obvious but it is meant to state that the way in which to control LPG is to have it properly designed, installed and maintained rather than by trying to make the building into a bunker which would be something which would withstand the force of an explosion. I should perhaps say that, if I understand the evidence correctly, there was no evidence before this Inquiry that it was surprising that this building collapsed given the force of the explosion. Looking further down in paragraph 8, my Lord, there page 62 are further reasons why it would be disproportionate, including that the location of the leak, the seat of the explosion, the degree of containment of the release of energy, the amount of gas present, et cetera, is not known and therefore the scale of effective protection and the size and placement of efficient explosion relief cannot be known. Finally on this matter that almost all work paces using piped LPG would require significant precautions for abnormal and very rare situations. So I am looking there, my Lord, at building protection and saying that the way to protect against LPG is not in terms of these regulations to try to make the building able to withstand the explosion; it is rather to avoid the explosion in the first place. THE CHAIRMAN: If that submission is well-founded, Mrs Stacey, does it follow from that that you do not envisage any special duties being imposed on either buildings authorities or on planning authorities? MRS STACEY: I come later, my Lord, to section 4 (a) of the Management Regulations which is of more relevance to the building authorities but the plain answer to my Lord's question is, no, I do not envisage special duties being imposed on them but I do have something to say about that a little later. page 63 My Lord, I move to actions taken by the Health & Safety Executive since May 2004 and this is a list, my Lord, of what the Health & Safety Executive has done since the disaster. Firstly, it jointly investigated the circumstances of the incident and that resulted in a successful prosecution. It instructed the Health and Safety Laboratory to do a survey which was to identify indicative levels of compliance by duty holders and it did that in 2004. It improved operational instructions to health and safety and Local Authority staff. That is a reference to the circulars that I have already spoken of. It produced a leaflet for users. My Lord may remember that that came out late in the evidence, when Mrs Caldwell was giving evidence, that it had been produced in March 2006. It has worked and continues to work with industry to develop a risk-based approach to pipe replacement, including funding research and it has developed new competence-related training programmes for regulatory and specialist inspectors which will be introduced in 2009. In April 2005 revised operational procedures and the computer system known as COIN provided the standards and support systems to manage follow-up visits to premises. page 64 I am conscious, my Lord, that is a matter which has exercised people at this Inquiry: what has HSE done in light of the fact follow-up visits were not made and no reason for them not being made was recorded. The answer to that, my Lord, is that improved procedures have been put in place. My next heading, my Lord, is the role of others and I not that certain commercial premises using LPG are subject to Local Authority enforcement of health and safety legislation. HSE will include local authorities in the consultation process on recommendations made by the Inquiry. The contribution which insurers can make has not been the subject at least of much evidence at the Inquiry. There has been some mention of insurers, my Lord, and that will be taken into account by HSE in the consultation in that there may be a contribution there. The design, construction standards and permission for alteration to existing buildings are regulated by local authorities which may have a role to play in ensuring safety, which is a partial answer to the question my Lord asked me not very long ago about the role of others as regards buildings. What then does the HSE have to say about recommendations? As I said in the preamble, the report page 65 produced at impressively short notice by Mr Sylvester-Evans on the last day of evidence was helpful and my Lord has the evidence of the HSE which is broad agreement. It may be useful to restate that the priority is the replacement of metallic pipes in high risk areas. This reflects the hierarchy of risk control measures: firstly, to eliminate the problem; secondly, to reduce the risk so far as is reasonably practicable; and, lastly, to mitigate against the effects of the risk. So if the risk can be taken away by getting rid of the metallic pipes and risers, that ought to be priority. The various information-gathering processes, including UKLPG and the Health and Safety Laboratory, will provide the information which is necessary to define the scope of the replacement programme (that is to say, the number of high risk installations) and, importantly, where they are. Once the scope is determined and accurate information about the available resources (by which I mean the necessary skilled personnel) is obtained, implementation of this top priority can be planned. At the same time, an evaluation of the appropriate proportion of resources which can be immediately allocated to implementation of other elements of the overall recommended package will page 66 be made. That, my Lord, is a recognition that it is an overall package. It may be that the limited availability of the necessary skilled personnel will result in the resources being deployed in a targeted way to those recommendations which will have most immediate benefit. The resources allocated to the carrying-out of the work of the top priority work and the impact of that work will influence the appropriate allocation of resources to the other elements of the package. In addition to the initial cost benefit analysis to be carried out by HSE, HSE agrees with Mr Sylvester-Evans that the effectiveness of the recommended measures in achieving the desired outcomes must be monitored and reviewed. HSE is of course committed to proper consideration of all Inquiry recommendations in order that beneficial effects are efficiently implemented. For example, the verification scheme may take a variety of forms, some details of which have been submitted by HSE in written materials. They do, of course, have experience of verification schemes in other areas. Development of the appropriate scheme will contribute to development of other recommendations, such as the contents of the safety dossier. These two work together. The statutory exemptions from certain record-keeping page 67 applicable to small businesses will require special consideration. Prescriptive measures, such as the total prohibition of pipework running through a void, cannot be insisted upon as alternative solutions which provide an equivalent and acceptable level of safety cannot be ruled out. The upgrading of existing installations is subject to the test of reasonable practicability. The evidence heard by the Inquiry does not indicate that the rogue supplier issue is of sufficient concern to justify a registration scheme of any description. My Lord will recollect Mrs Caldwell's evidence about this. However, in the course of consultation on implementation, HSE will explore this with the industry (that is the suppliers and the users) and find their perception of the matter. In any event, HSE agrees with Mr Sylvester-Evans that any registration scheme which was in effect a permissioning or licensing regime would be an unduly onerous burden on HSE and the industry, which would not be a proportionate response. So there is clearly a challenge there, my Lord, to find out what sort of scheme, if any, is the right scheme. The extension of GSIUR, HSE's position is that it agrees that a selective extension to factories has merit. Its preferred solution is to remove the existing page 68 exception to factories in Regulation 3, which would have the effect of providing an explicit requirement of competence and appropriate registration. There was evidence about that CORGI (now Capita), scheme. HSE will, in addition, with regard to factories, consider the merits of extending the relevant regulations to service pipework up to the emergency control valve, which will require formal consultation and an impact assessment as this would be a legislative change. HSE will also review whether any changes, including ownership of service pipework, are needed in respect of domestic premises as a result of the Inquiry recommendations. Returning to safety of buildings, my Lord, this is split up because these are separate regulations, Regulation 4A of the -- I earlier said management regulations but my Lord would appreciate I did not mean that -- I meant the Workplace (Health, Safety and Welfare) Regulations 1992 requires buildings to have a stability and solidity appropriate to the nature of the use of the workplace. That phraseology is derived from the European Directive and the reference is given. The submission, my Lord, is that it is directed at the use of the workplace and so involves the ongoing processes, operation and function of the building. page 69 Consideration of appropriate use will include risks from the running of the process: for example, vibration, floor loadings and foreseeable risks such as a fire in a cylinder store. With regard to a building in which LPG is used, if the escape of flammable gas from an otherwise properly installed, maintained and operated system was or is construed as a use requiring explosion protection or relief, or the discontinuation of the use of the building as a workplace, then that principle would have to be applied to a wide range of circumstances and examples are given: every motor vehicle repair garage where petrol may escape; every welding shop where welding gases may escape; every commercial catering kitchen; many natural gas installations, and brick, tile and other factories with ovens and kilns, et cetera. No doubt, my Lord, there are thousands of examples but those are simply a selection given. Therefore, the submission is that the duty under Regulation 4A is directed to the use made of the building rather than to the capability of any building to withstand an LPG explosion. In a properly installed, maintained and operated LPG installation it is not expected that a flammable or explosive atmosphere would be generated as part of the page 70 normal work operations or use of the factory. That, my Lord, is in contradistinction to certain processes that go on in factories such as spray painting, which does bring with it that risk. The intention of the regulation is that duty holders should monitor the state of their buildings to assess the ongoing structural integrity. That includes the condition of buildings, and examples are given as cracks in load-bearing walls, et cetera, and the suitability of the building for work processes -- for example, cast iron columns and forklift trucks. Conversely, where there is a foreseeable risk of an explosive atmosphere as a result of ongoing work processes, Regulation 4A may require measures such as explosion relief in order that the buildings retain the requisite solidity and stability and the example that I made earlier is given there. Therefore, my Lord -- perhaps paragraph 36 answers my Lord's earlier question -- any recommendation which this Inquiry makes regarding building safety will of course be considered by HSE, but it will be in conjunction for the directorate for the Built Environment in Scotland and another department in England which are the lead departments in building safety in order that a fully co-ordinated approach in page 71 this important area is ensured. In conclusion then, my Lord, HSE agrees with Counsel to the Inquiry and Mr Sylvester-Evans that the status quo at the time of the events leading to the ICL disaster was not good enough. Improvements have been made by the HSE over the last 25 years in management, in processes and in training and a continuing improvement programme is in place. ICL bear responsibility for the incident. The companies were charged and convicted under the 1974 Act. Nevertheless, the Health & Safety Executive regret that its own interventions in relation to the buried pipework were not more successful. The Health & Safety Executive very much regrets the loss of life and the injuries which resulted from the explosion. All of those who work or have worked for HSE are committed to improving the health and safety of people at work and of members of the public affected by work practices. HSE wishes to take this opportunity to affirm that commitment by working hard to assist this Inquiry to examine the system and then to implement any changes brought about as a result of the Inquiry recommendations. THE CHAIRMAN: Mrs Stacey, I wonder if I could just refer you back to C and D on page 8. I did not want to page 72 interrupt you at that point but there are a couple of matters that concern me. First of all, in relation to uniformity. I think that particular necessity stands out a mile now. It has become clearer and clearer as the Inquiry has gone on. Whatever conclusion one comes to as to where the demarcation point is between the supplier and the customer, would there be merit in some sort of colour coding that would visually reinforce the contract or whatever? MRS STACEY: There may well be, my Lord, yes. THE CHAIRMAN: You say that standardisation or the imposition of a uniform system of demarcation would require legislation. Do you mean by that primary legislation? MRS STACEY: No, my Lord. It can be done by secondary legislation. THE CHAIRMAN: In that case then, the problem is nowhere near as forbidding as it would be if it required primary legislation. MRS STACEY: Indeed. In the hierarchy of legislation, my Lord, that is absolutely right. THE CHAIRMAN: So the way would be open to HSE, after due consultation, to promote a new set of regulations that would make that absolutely clear. page 73 MRS STACEY: That is so. THE CHAIRMAN: I am glad that that is your view because it occurred to me that if we were looking at the need for primary legislation, then the scale of the problem would be very much greater. MRS STACEY: I should have made that clear, my Lord. I did not mean to refer to primary legislation. THE CHAIRMAN: Thank you very much, Mrs Stacey, for your help. Mr McBride, please. Closing statement by MR MCBRIDE MR MCBRIDE: My Lord, thank you. My Lord, on behalf of ICL Tech Limited and ICL Plastics Limited, I have some very brief observations to make in this closing statement. At the outset, could I thank Counsel to the Inquiry and the Inquiry team for the thorough and impressive performance in the way they have brought the evidence in this Inquiry. Furthermore, it cannot pass without mention that those who have been injured or have lost loved ones have behaved with a quiet dignity during the course of both these proceedings, as they did in the course of the criminal case against both companies. Everyone involved in both ICL companies feel profound sadness and regret that what happened on 11th May 2004 has blighted so many lives. Detailed written page 74 submissions on behalf of ICL have been lodged in respect of Phase 1 of the Inquiry and I do not attempt to rehearse these again. But suffice it to say that both ICL companies accept that in respect of the events leading up to the May 2004, they fell short of the standards required by the provisions of the Health and Safety at Work Act. While others may have played their part in the mistakes that let to the underground pipe being essentially ignored, both companies and the individuals responsible for overseeing the health and safety of the employees do not seek to escape responsibility for their own shortcomings. It has been said before, and should be said again, that both companies apologise and express deep remorse for those who have been affected by the tragedy. Although neither company is involved with LPG now, they would wish to place on record that the revised 21 recommendations of Rod Sylvester-Evans have the full support of both companies and, should the Inquiry choose to adopt them in its final report, then both ICL companies are of the view that they would go some significant way in clarifying the role and responsibilities of the agencies working with LPG to make the workplace in the United Kingdom safer for those involved. Mr Rod Sylvester-Evans should be commended page 75 for the work that he has undertaken in this respect. My Lord, as a result of everything that has taken place in this Inquiry, agencies, companies and individuals have had an opportunity to reflect on their role and the errors that were made. While the report will deal with all of these matters in due course, lessons have already been learned by at least some of these parties concerned. My Lord, can I say this finally: I have had opportunity this morning of reading the submissions by Mrs Ferguson and Mrs Smith. These submissions are excellent submissions and it is impossible to disagree with anything that they have said. In particular at paragraph 16 of their submissions they essentially seek to succinctly encapsulate the issues that were raised in Phase 1 of the Inquiry and both companies are happy to associate themselves with the observations that they have set out. Thank you, my Lord. THE CHAIRMAN: Thank you very much, Mr McBride. Mr McBrearty, please. Mr McBrearty is going to read out the submission on behalf of Mrs Ferguson and Mrs Smith. Closing statement by MR McBREARTY (On behalf of Mrs Ferguson and Mrs Smith) MR McBREARTY: My Lord, thank you. Your Lordship has the written submissions by page 76 Mrs Ferguson and Mrs Smith and I believe that everyone else also has a copy. They have asked me that for the large part of those submissions, rather than read them out verbatim, they would prefer that I summarise those and perhaps emphasise some of the points which are of particular importance to them. So with your Lordship's permission, I would propose to adopt that approach. Your Lordship will see that Mrs Ferguson and Mrs Smith have focused largely on moving forward and on recommendations which ought to be made. In general terms, they are fully in agreement with all of the recommendations which have been made by Mr Sylvester-Evans and really in what follows what they would like to do is make specific points about a number of those recommendations. Dealing firstly with the issue of the replacement strategy, which is covered at paragraphs 3 to 7 of their written submission, my Lord, it is accepted by Mrs Smith and Mrs Ferguson that all parties appear to consider it appropriate that there should be a risk-based replacement strategy. They do, however, wish to emphasise that for them the matter of greatest importance is that this is approached as a matter of real urgency. There are a number of issues which arose out of evidence which caused them concern as to the lack page 77 of action which has been taken both on the part of the industry and the Health & Safety Executive. If I could just simply highlight three of those, my Lord, the first is that it does seem that four and a half years have passed since the accident and yet many, many dangerous metallic pipes still remain underground. The second is that it was apparent from the evidence, particularly of the Calor witnesses, that whilst work has commenced in undertaking a replacement strategy, it would appear that that only commenced after a second incident took place in domestic premises at Glenspin in 2006, whereas it appears there were no particular actions taken either by the industry or by the HSE in the period between 2004 and 2006. Finally, my Lord, it was of some concern to Mrs Ferguson and Mrs Smith that information regarding the replacement strategy was not passed to the Inquiry until a relatively late stage. It is their position, my Lord, that all of these issues point to the need for steps to be taken in order to devise and implement a replacement strategy of metallic pipework without any continued delay. They respectfully suggest that it would be appropriate for your Lordship to reflect that in his recommendations. If one looks at the basis on which pipework is to be page 78 prioritised, both Mrs Ferguson and Mrs Smith consider it vital that that pipework which goes into unventilated voids should be considered as a matter of urgency and replaced. Turning to the issue of responsibility of pipework, my Lord, the submission deals with this at paragraph 8. Summarising that, Mrs Ferguson and Mrs Smith have been concerned as to the difference of approach in the industry and the fact that ambiguity exists as to the extent of responsibility for installations. Your Lordship has obviously raised that issue in the course of other submissions. It is of significant importance to them there should be no ambiguity and that a uniform approach should be adopted across the industry. Looking to the issue of safety dossier and verification -- and this is dealt with at paragraphs 9 through to 13 of the written submission -- Mrs Ferguson and Mrs Smith note that there has been some opposition by core participants to the idea of a verification scheme. They would like to communicate that they feel strongly that it is important that there should not merely be a safety dossier system introduced but that there should be a recommendation that here should also be verification by a suitably qualified independent person. The concern is that without that safeguard, page 79 firstly, there may be existing installations upon which no new work is required which would continue to be out of sight and out of mind. Secondly, they are concerned that this should not merely be an interim step pending replacement of metallic pipework; they are of the view this should continue for the lifespan of LPG installations as the evidence has clearly suggested there may be many factors, apart from simply the materials from which pipework is made of, which could contribute to the risks which arise from LPG. Further to that, my Lord, they strongly support the recommendation which has been raised that there should be a criminal offence to use or supply LPG in a system which does not have a valid verification system and they view that as being important as an ultimate deterrent. They would, however, wish to emphasise, my Lord, that that should not detract from the possible enforcement action which can be taken by the HSE in the intervening period in appropriate cases under existing powers. Dealing with paragraph 14 which concerns the registration of suppliers, Mrs Ferguson and Mrs Smith simply wish to indicate that they support possible recommendation that there should be a registration of suppliers and that they believe that it should involve page 80 some form of accreditation of those suppliers. Dealing with awareness, which is at paragraph 15, they are concerned that the evidence has suggested an overall problem which shows that there has been a significant lack of awareness amongst the general public but also amongst users specifically as to the dangers of LPG. To that end, they are supportive of any steps which might be taken in order to further raise awareness and they have highlighted specific steps in that paragraph which they suggest may be of assistance. The final section of the written submission, my Lord, from paragraph 16 through to 24 is perhaps of a personal nature and I think it would be appropriate if I read that out on their behalf: "We are here today primarily because ICL did not take responsible actions to ensure the safety of their employees. In addition, if HSE had taken the action recommended in 1988 the accident would have been prevented. It is also difficult for us to accept that the suppliers could not have done more to prevent this tragedy, particularly given the part played by Calor in 1988 and the continued supply by Calor and Johnston Oils Limited to an installation that was clearly inadequate. "All three were responsible, working to individual agendas and did not follow guidelines. If these page 81 guidelines had been adhered to or enforced the accident would have been avoided. "The Inquiry has illustrated that guidelines are in place but has also demonstrated the confusion and ambiguity that exists. What is needed is a single regulatory document covering storage to burner which is clear and comprehensive to all parties. "The users and suppliers of LPG generate the risks and must manage them with guidance and regulation from UKLPG and HSE. Moving forward we would wish HSE, the suppliers (possibly through UKLPG) and the users to work together to ensure action is taken to prevent a tragedy such as ICL happening again. "Our wish is that no other family should suffer as we have as a result of such a preventable accident in the workplace and that the lessons are learned from the ICL disaster. "We are hopeful that the Chairman can lead a definite programme of strong recommendations and action as soon as possible. The Government must take on the recommendations and enforce them throughout the UK with urgency." THE CHAIRMAN: Thank you, Mr McBrearty. Mr Macauley, I think we can sit on a little bit later and let you make your submission now. page 82 MR MACAULEY: I think that there would be unanimous support, my Lord, for that. Closing statement by MR MACAULEY MR MACAULEY: The submissions that have been prepared on behalf of the families and survivors have been circulated. The introduction maps out the structure of the submissions. In section 1 a number of particular observation are made in connection with the evidence on why the disaster occurred. Section 2 focuses on the recommendations and the final section of the submissions contains a number of observations that reflect the views of these core participants to the Inquiry. Looking then to section 1 and looking first to the position of ICL, in the submissions made on behalf of these core participants in Phase 1, it was suggested in its dealings with the HSE ICL pursued a policy of evading its responsibilities towards health and safety, a policy that was pursued at management level. The policy was not simply one of evasion but of deception. The findings, in fact, proposed by these core participants support that conclusion. It is perfectly plain that ICL at management level realised at an early stage in their dealings with HSE that -- THE CHAIRMAN: Could you use another microphone, Mr Macauley, please, if you do not mind. page 83 MR MACAULEY: Perhaps I can go back to paragraph 6. In the submissions made on behalf of these core participants in Phase 1 it was suggested that in its dealings with the HSE ICL pursuit a policy of evading its responsibilities towards health and safety, a policy that was pursued at management level. The policy was not simply one of evasion but of deception. The findings in fact proposed by these core participants support that conclusion. It is perfectly plain that ICL at management level realised at an early stage in their dealings with the HSE that they could outwit the HSE inspectors. They were able to rely on the naiveté of the inspectors to pursue a policy towards the safety of the LPG system that paid scant regard to the safety of the workforce. The HSE's approach to the buried pipework and to the existence of what was an unventilated void should not detract from the fact that ICL did not make any real attempt to understand their duties under the Health and Safety at Work Act and the relevant regulations. ICL's deliberate failures in a situation where they placed their workforce at significant risk mean that ICL must bear the primary responsibility for the disaster. The next section looks at the position of the HSE. Phase 2 of the Inquiry has highlighted that HSE inspectors in the 1980s failed to have proper regard to page 84 HSE internal guidance in the shape of FIC286/43 and the revision in 1983. That internal guidance provided inspectors with an obvious insight into the risks of failure of LPG pipework caused by corrosion. Such guidance was also available in HS(G)34. HSE knowledge should have been reinforced by the existence of Codes of Practice produced by the industry and there is reference made to those codes. After construction of the basement floor in 1980 and consequently the creation of an unventilated void, the HSE inspectors who visited the premises after that time ought to have focussed on fact that the LPG pipework passed through the basement area. After the creation of the basement, in the period from June 1981 to February 1992 HSE inspectors carried out ten visits to the premises during which some focus was on the LPG system. In his report of August 1988 Mr Tyldesley, in recommendation 10, focused on the T-joint in the LPG pipework in the basement, but failed to make any recommendation about the basement itself. The fact that the basement was an unventilated void is of particular importance to the cause of this disaster. Quite rightly, much of the focus has been on the pipework but a gas leak per se into the atmosphere would not have led page 85 to an explosion. Again, there is reference to the HSE guidance, HS(G)34. The HSE should not have failed to insist upon the recommendation made by Mr Tyldesley that the LPG pipe be partially excavated. Had the excavation proposed by Mr Tyldesley been carried out the absence of corrosion protection would have been evident. In any event, the fact that no Denso wrapping could be seen on the riser pipe that was visible should alerted the HSE to the possibility that there was no corrosion protection to the LPG pipework. The next section makes some brief observations in relation to Calor. Having intervened on behalf of ICL in late 1988/January 1989, Calor should not have proposed a because of action that was designed to persuade HSE not to insist upon the recommendation of partial excavation. The position adopted by Mr Betts that industry practice only required a tightness test is untenable. As discussed in paragraph 9, LPG Codes of Practice highlighted the importance of assessing the risk to pipework from corrosion having regard to the aggressiveness of the environment in which the pipework was located. A tightness test might be acceptable if you know what is there. Calor did not know the page 86 condition of the pipework and whether it was protected against corrosion. That was the fundamental flaw in the Calor approach. Furthermore, and in any event, Calor ought to have realised that absence of corrosion protection on that part of the pipework that was visible above ground demanded that they satisfy themselves as to the position regarding the remainder of the LPG pipework. Section 2 deals with the recommendations proposed by Mr Rod Sylvester-Evans. I think I can deal with this fairly succinctly. It is clear that they form a sound basis for dealing with the problems that have been raised during the Inquiry and a number of points are made in relation to that. If I could turn perhaps in particular to paragraph 20, we would support the conclusion that it should be a criminal offence for a supplier to supply LPG to a user and a user to use an LPG system if that system did not have an up-to-date verification certificate. A criminal sanction would provide a way of guarding against rogue users of LPG and conversely protect the responsible suppliers of LPG. In the circumstances disclosed in the course of this Inquiry, ICL can be characterised as a rogue user of LPG. They failed to follow regulations that were directed to health and safety and, as already page 87 indicated, engaged in a policy of deception in their dealings with HSE. Had there been a verification scheme of the kind envisaged by Mr Rod Sylvester-Evans, ICL would not have been able to get away with that approach and the disaster would not have happen. In paragraph 21 we indicate we also support the proposal that GSIUR should be extended to cover industrial premises. An issue that has arisen particularly during Phase 2 is the extent to which LPG suppliers should be responsible for the integrity of the equipment at a site. Mr Sylvester-Evans has produced cogent reasons for LPG suppliers' responsibility to extent only to the tank and fittings and not to service pipework. In course of Phase 2 Mr Betts suggested that Calor's policy was that the vapour offtake line was the cut off point. It seems that the rest of the industry used the first stage regulator as the point to which the suppliers' responsibility extends. There is a certain logic in using the first stage regulator as the cut off point because that would mean that the gas supplier would remain responsible for the high pressure side of the system. To repeat what was said in the recommendations document submitted on behalf of these participants in page 88 the dealings with ICL the HSE failed to carry out proposed check visits. This was a clear systems failure. The HSE systems should be sufficiently robust so as to ensure that proposed inspections to check whether or not recommendations have been put in place are carried out. My Lord, the final section is in these terms: "The Inquiry will note a number of the core participants who we represent were in attendance at the Inquiry on a regular basis. Although the evidence was frequently upsetting to them, they were able gain a clear insight into the cause of the disaster. We have been instructed to advise the Inquiry that they do feel the truth of what has happened has come out", and to echo what has been said it is a matter of extreme importance to those we represent that this must not be allowed to happen again. THE CHAIRMAN: Mr Macauley, can I just refer you to paragraph 6 which makes a serious case that there was a positive deception. Do I take it that you are associating that with Mr Stott or with Mr Downie or with whom? MR MACAULEY: Particularly Mr Stott but your Lordship will recollect the evidence in the memorandum that passed between Mr Stott and Mr Downie, I think the word was page 89 used "side-stepping" the HSE's recommendations so it is within that context but I think it is right to say that it was Mr Stott who dealt directly with the HSE. THE CHAIRMAN: There was the promise of action after Christmas which never happened. MR MACAULEY: It never happened. THE CHAIRMAN: Then the claim to ownership of the area of the site. MR MACAULEY: Which never -- indeed. THE CHAIRMAN: Are those the main points? MR MACAULEY: And the removal of the bricks from the wall was another point. THE CHAIRMAN: Yes, the bricks. Thank you, Mr Macauley. I think that concludes all the closing submissions. There are just a number of matters I would like to mention if I could just trespass on your patience for a few more moments before I close the Inquiry. There have been written submissions from UKLPG and from Mr Jamieson and these will go on to the website in due course. The oral submissions that have been made today: there are hard copies of these and they will be left on the back table if anyone wishes to have an additional copy of any of those. Any further matters that may arise during preparation of my report I propose to deal with in page 90 writing. It only remains for me to thank Counsel to the Inquiry and the Inquiry team for the help that they have given me. I should also like to express my appreciation to the counsel and solicitors for the core participants. I would also like to thank Mrs Ferguson, Mrs Smith, Mrs O'Brien and Mrs Russell and I would like to assure them that their contributions have really helped me. I realise in particular the burden that Mrs Smith and Mrs Ferguson have undertaken and I would like to assure them both that their contribution has been most worthwhile and helpful to me and I am grateful for that. I would also like to thank the help that I have received from the witnesses in the case and from UKLPG and to the various people who have helped in the day-to-day running of the Inquiry. I am also very grateful for the co-operative spirit which has characterised these proceedings. I am sorry that the families have had to see and to hear evidence that has been distressing to them. The evidence of course has ranged over many scientific issues but I am conscious that all of this originates in a dreadful tragedy that has affected the lives of so many people and I should like to assure the relatives of the deceased and those who were injured of my sympathy for page 91 all that they have suffered. I hope that all of you will feel that these proceedings have been worthwhile. Mr Martin? MR MARTIN: My Lord, I wondered if I might just have the opportunity, in effect, to say what your Lordship has just said and to express my own thanks to all who have assisted in the Inquiry process and again to extend my own sympathies to the bereaved and to the injured. I would in particular like to thank the Inquiry team and those who have assisted me in the preparation of this case and the collation of the evidence and also thank all of those representing the core participants, in particular Mrs Ferguson, Mrs Smith, Mrs Russell and Mrs O'Brien who have likewise contributed a great deal to the proceedings. Thank you, my Lord. THE CHAIRMAN: I now close the Inquiry. (1.0 8 pm) (The Inquiry closed)