1. THE REGULATORY APPROACH TO HEALTH SAFETY AND ENVIRONMENT
IN IRELAND
The Irish approach to the regulation of health, safety and environment is risk based and appear
to have been influenced both by the practice adopted on the United Kingdom Continental Shelf,
(UKCS) and the implementation of the directives of the European Union, (EU). Though, the
reasons that led to the adoption of that approach, as well as the history of offshore exploration
activities both in the UK and Ireland, are very different. All the same, there are many similarities
in the oil and gas sector of both countries. Thus, by way of introduction, this report will proceed
by evaluating a few of such comparisons, before the explanation of the general approach taken
by the Irish regulators to health, safety and environmental regulation. The next section will deal
specifically with the various provisions in Irish law dealing with decommissioning costs of oil and
gas installations, as well as the provisions and regulatory arrangements for the development
and implementation of a decommissioning plan or program. The latter part of the report will
consider the possibility of a potentially interventionist approach by a state regulator in Ireland,
similar to the role being played by the newly established Oil and Gas Authority in the UK.
There is a notable similarity in the terrain of exploration activity in both Countries. While there
has been a general ‘and continuing perception that exploration offshore Ireland is geologically
and environmentally difficult,’1
the area of offshore exploration activity on the UKCS, has also
been described as ‘one of the most hostile environments in which the offshore oil and gas
industry operates.’2
On the other hand, while there has ‘been no commercial discoveries of oil to
date offshore Ireland’3
the same cannot be said of the ‘matured province’4
that the UKCS has
become.
1
Fergus Cahill,Chairman,Irish Offshore Operators’ Association.Speech delivered atthe International Petroleum
Taxation Conference,Oslo,31st
October/1st
November 2012
2
John Paterson in ‘Gordon Greg, Paterson John and UsenmezEmre;‘Oil and Gas Law – Current Practice and
Emerging Trends.’ 2nd
Edn. Page 187
3
Departmentof Communications,Climate Action and Environmenthttp://www.dccae.gov.ie/natural-resources/en-
ie/Oil-Gas-Exploration-Production/Pages/home.aspx#
4
Ibid (n2) page 187

2. By way of further comparison, while the approach regulatory authorities took to health and
safety at work in the UK has ‘seen a constant evolution,’5
on account of the occurrence of
various disasters like the Piper Alpha incident, the same cannot be said of the history of the Irish
approach. As a result of those disasters in the UK, three different approaches to health, safety
and environment have been adopted on the UKCS. They ‘range from self-regulation through
prescriptive regulation in the middle phase to the permissioning approach of the late phase.’6
In
Ireland, on the other hand, such challenges have been non-existent, in spite of the country’s
‘estimated potential of ten billion barrels of oil equivalent (gas and/or oil) in the Atlantic Margin
West of Ireland.’7
5
Ibid (n2) page 187
6
Ibid (n2) page 229
7
Optimising Ireland’s Oil and Gas Resources.Reportof the SIPTU Oil & Gas Review Group page 9

3. IRISH APPROACH TO HEALTH, SAFETY AND ENVIRONMENT
In spite of its limited offshore commercial hydrocarbon discoveries and the modesty of its
hydrocarbon sector, the Government of Ireland, in its bid to attract more investors, ‘has sought
to bring the regulation of petroleum safety in line with international best practice.’8
To that end it
has effected amendments to its approach to the regulation of health, safety and environment
offshore Ireland.
The 1960 Act9
‘The Petroleum and Other Minerals Development Act 1960 (the 1960 Act) is the primary
Legislation governing offshore natural oil and gas operations in Ireland,’10
following its ‘repeal of
the Petroleum (Production) Act, 1918.’11
However, it would appear that the 1960 Act’s approach
to health, safety and environment was largely prescriptive. Its provision for safety merely
authorises the Minister to make regulations, which ‘… may provide for … safety measures in
relation to petroleum operations.’ 12
By way of contrast, the initial self-regulating approach to health and safety adopted on the
UKCS was due to economic necessities. Discovery of oil in the North Sea ‘co-incided with a
period of economic difficulty for the UK.’13
Consequently, the speed with which the Government
8
Regulation ofoffshore petroleum activities in Ireland Brochure,MATHESON, page 5 www.matheson.com
9
Petroleum and Other Minerals DevelopmentAct, 1960
http://www.irishstatutebook.ie/eli/1960/act/7/enacted/en/print.html
10
Oil and Gas Law Review – Ireland - 2nd
Edn. 2015 James Masseypage 163
11
Section 64 of the 1960 Act
12
Sections 52 and 61 of the 1960 Act
13
Ibid (n2) Page 189

4. put in place a legal framework has been said to have resulted in ‘little attention being paid to the
question of occupational health and safety.’14
THE CURRENT APPROACH IN IRELAND
The Irish approach has changed with the times. Thus, the Irish Government ‘has recognised the
need to review and update the 1960 Act in light of legislative developments at both national and
European Union level, including planning, safety and environmental legislation.’15
The current risk based, permissioning approach to health and safety, in Ireland, is a direct
consequence of the enactment of the PEES Act 2015, which ‘came into operation on 29
February 2016.’16
The 2015 Act is in itself an amendment of the PEES Act 2010, which built on
and amended certain provisions of the Electricity Regulation Act 1999. Perhaps the most major
significance of the PEES Act 2015, was that it ‘transposes the European Union Directive
2013/30/EU on safety of offshore oil and gas operations’17
into Irish Law. In his explanation of
the new approach to the Irish Dael, (Senate), Minister Joe McHugh stated that ‘the transposition
of the directive will further strengthen the safety regulation of offshore oil and gas exploration
and production in Ireland's offshore area in line with best practice regulation.’18
The PEES Act 2015 laid down a risk based approach to health and safety. It required that the
Commission for Energy Regulation (CER), should, in the exercise of ‘its functions as competent
authority, ensure the effective safety regulatory oversight of each operator and owner’s
compliance with the Act.’19
The PEES Act further gave the CER the mandate to ‘reduce the risk
14
Ibid (n2) 189
15 Regulation ofoffshore petroleum activities in Ireland by MATHESON page 6
16 S.I. No. 109/2016 - Petroleum (Exploration and Extraction) Safety Act 2015 (Commencement) Order 2016.
http://www.irishstatutebook.ie/eli/2016/si/109/made/en/print?q=SAFETY
17
Petroleum (Exploration and Extraction) Safety Bill 2015:Second Stage Seanad debates,
https://www.kildarestreet.com/sendebates/?id=2015-06-24a.153[27/07/2016 19:00:50]
18
Petroleum (Exploration and Extraction) Safety Bill 2015:Second Stage Seanad debates,
https://www.kildarestreet.com/sendebates/?id=2015-06-24a.153[27/07/2016 19:00:50]
19 Section 3 PEES Act 2015

5. and potential consequences, (including major environmental incidents), of major accidents
offshore, to a level that is as low as is reasonably practicable,’20
(ALARP). The ALARP
approach has become an apt classification of the latest goal setting, risk based approach to
regulating health and safety in Ireland.
Furthermore, ‘in discharging the above functions, the CER is required to establish and
implement a risk-based Petroleum Safety Framework, (PSF), which will provide a description of
the system the CER will use to regulate Petroleum Undertakings with respect to safety.’21
According to a publication of the CER, ‘the PSF is a collection of regulations, written regulatory
documents and procedures, developed based on the requirements of the PEES Act.’22
Furthermore, the CER acknowledged that ‘the PSF is a permitting regime. It is goal-setting and
risk-based and requires that risks from petroleum activities are reduced to a level that is as low
as reasonably practicable or ALARP.’23
As a result of the power given to the CER by the PEES Act, ‘to issue safety permits, as well as
to assess, and where relevant accept or reject, safety cases,’24
it is advisable that the company,
as a petroleum undertaking, ‘first receives a safety permit from the CER prior to carrying out any
intended designated petroleum activity.’25
However, in order to avoid a rejection, our Company’s
proposed Safety Case ‘must show that the Petroleum activities are to be carried out in such a
manner as to reduce any risk to safety to a level that is as low as is reasonably practicable
(ALARP)’26
20
Ibid (n19) Section 3
21
Ibid (n19) Section 6
22
CER Overview http://www.cer.ie/energy-safety/petroleum
23
ALARP Guidance Part of the Petroleum Safety Framework and the Gas Safety Regulatory Framework
http://www.cer.ie/docs/001054/CER16106%20ALARP%20Guidance%20V3.PDF
24
Ibid (n19) Section 4
25
CER Overview http://www.cer.ie/energy-safety/petroleum
26
Status Analysis Review of the Existing Legislative and Regulatory System for Petroleum Exploration and
Extraction in Ireland. http://www.cer.ie/docs/000681/cer11058.pdf

6. At first sight, the ALARP requirement might appear burdensome for a new undertaking, more so
because ‘under the PSF … the responsibility to carry out and document an ALARP assessment
lies variously with Undertakings, Operators and/or Owners.’27
However, a sizable quantity of
regulatory literature, as well as judicial declarations, exists both in Ireland and the UK that
clarifies the ALARP requirement.
In the UK, the Health and Safety at Work etc. Act 1974 (HSWA) ‘is the primary piece of
legislation covering occupational health and safety, while the Health and Safety Executive,
(HSE) … is responsible for enforcing the Act’28
as the regulator. It is sufficient to state that ‘the
HSWA sets up the general framework for safety legislation in the UK, which is, broadly
speaking, risk-based, with the requirement for safety cases in certain instances.’29
More so,
because, Section 2(1) of the HSWA places ‘a duty on every Employer to ensure, so far as is
reasonably practicable, (SFAIRP), the health, safety and welfare at work of all his
employees.’30
According to the HSE both ALARP (used in Ireland) and SFAIRP (used in the UK) ‘mean
essentially the same thing and at their core is the concept of “reasonably practicable”; this
involves weighing a risk against the trouble, time and money needed to control it.’31
However, it
would appear that the HSE explanation, of the ALARP approach, seemingly has its drawbacks
and leaves room for the argument that a risk may not need to be controlled where the cost,
trouble and time needed to control the same is impracticable. Nonetheless, the HSE stated
further that ‘the process is not one of balancing the costs and benefits of measures but, rather,
of adopting measures except where they are ruled out because they involve grossly
disproportionate sacrifices.’32
27
Ibid (n23) on ALARP
28
Health and Safety Executive http://www.hse.gov.uk/legislation/hswa.htm
29
Review and Comparison of Petroleum Safety Regulatory Regimes for the Commission of Energy Regulation
Report Number AA/73-01-01/03 by GL Noble Denton. December 2010
30
HSWA 1974 CHAPTER 37 http://www.legislation.gov.uk/ukpga/1974/37
31
ALARP AT A GLANCE – HSE - http://www.hse.gov.uk/risk/theory/alarpglance.htm
32
Ibid (n28) on HSE

7. Be these explanations as they may, it is sufficient to note that there is room for personal
judgment of the duty holder, both in the UK, and arguably in Ireland, as to what constitutes
‘reasonably practicable’ and further that the duty might not be unduly burdensome.
By way of further explanation of the Irish approach, it is worth mentioning that the Judiciary has
similarly made an attempt to clarify the nature of that duty. Thus in the UK case of Edwards v.
National Coal Board, [1949] 1 All ER 743, the UK Court of Appeal’s statement in its judgment, is
worth quoting in full;
“Reasonably practicable’ is a narrower term than ‘physically possible’ … a computation
must be made by the owner in which the quantum of risk is placed on one scale and the
sacrifice involved in the measures necessary for averting the risk (whether in money,
time or trouble) is placed on the other, and that, if it be shown that there is a gross
disproportion between them – the risk being insignificant in relation to the sacrifice – the
defendants discharge the onus (duty) on them.”33
Most notably, ‘this definition of reasonably practicable adopted in the Edwards case is followed
in Ireland and was applied by the Irish Supreme Court in the case of Boyle v Marathon
Petroleum (Irl) Ltd [1999] 2 I.R. 460.’34
For the purposes of this report, the sum effect of the Irish
Supreme Court decision is that ‘the courts in Ireland have accepted the UK position that in
applying the ALARP principle a risk reduction measure must be adopted unless the sacrifice
involved in implementing that measure is grossly disproportionate to the risk reduction gained.’35
Nonetheless, it is sufficient to summarise that an ALARP or SFAIRP approach ‘describes the
level to which workplace risks is expected to be controlled via the setting of (practicable) goals
for duty-holders, rather than prescriptive regulations.’36
That approach to health and safety ‘is
known as risk-based because it requires the employer to identify, assess and manage the risks
33
Ibid (n28) on HSE
34
Ibid (n23) on ALARP
35
Ibid (n23) ALARP page 3
36
Ibid (n31) UK ALARP

8. of their operations.’37
Besides, ‘what is reasonably practicable in any given situation will be
determined by the facts of each case.’38
The converse approach would be the prescriptive
approach, ‘where legislation defines the safety measures that must be taken without the need
for the employer to assess risk.’39
THE APPROACH TO ENVIRONMENTAL REGULATION
The Irish Environmental Protection Agency (EPA) is authorised by the EPA Acts of 1992 to
2013 to regulate environmental issues along with other regulators. However, because
‘environmental protection and health protection, in Ireland, are inextricably linked,’40
the Irish
‘approach to environmental regulation or enforcement is also risk based.’41
Thus, similar to the ALARP approach, discussed earlier in this report, the Irish ‘risk-based
regulation tends to direct concerns towards higher risks. The overall message is that regulation
should focus on the most important problems, the highest risks, and resolve them’42
CONCLUSION
For the purposes of this report, it is sufficient to note that Irish law ‘… recognises that the most
effective and efficient way to protect human health and the environment is to target resources
towards activities that pose the greatest risk and those areas at greatest risk of impact.’43
The
need for our company’s compliance with this approach is made all the more necessary by the
37
Review and Comparison of Petroleum Safety Regulatory Regimes for the Commission of Energy Regulation
Report Number AA/73-01-01/03 by GL Noble Denton. December 2010
38
Ibid (n23) Irish ALARP
39
Ibid (n38) Review
40
Laura Burke, Director General of the Irish EPA, http://www.epa.ie/newsandevents/news/2015/name,57935,en.html
41
Environmental Law and Practice in Ireland:Overview by Finola McCarthy and Rhoda Jennings Ronan Daly
Jermyn. http://global.practicallaw.com/4-503-2701
42
Regulating Low Risks:Innovative Strategies and Implementation R.Baldwin,J.Black and G. O’Leary. LSE Law,
Society and EconomyWorking Papers 9/2013 London School ofEconomics and Political Science Law Department
43
Ibid (n42)

9. Irish Licensing terms, which mandates the ‘Minister to take into account the applicant’s policy to
health, safety and the environment as a criteria of consideration of the authorisation applied
for.’44
44
Article 3 Licensing Terms For Offshore Oil And Gas Exploration, Development& Production In Ireland 2007