Consultation outcome

Future arrangements for the disposal of maritime pyrotechnics

Updated 11 October 2021

This was published under the 2019 to 2022 Johnson Conservative government

Foreword

I am delighted to announce the launch of this consultation that seeks the views of the pleasure vessel community in the UK concerning future arrangements for the safe and responsible disposal of marine pyrotechnics, when they time-expire, are damaged or have become redundant.

Marine pyrotechnics has traditionally been a vital means of raising the alarm for mariners when they run into difficulties or have an emergency at sea. However, such devices must be safely and responsibly disposed of when they come to the end of their usefulness. Irresponsible disposal or abandonment of marine pyrotechnics is illegal, and such actions present a health and safety hazard to the public, risk damaging the marine environment around the UK as well as equipment and property.

The Maritime and Coastguard Agency (MCA) has provided a free disposal service to all pleasure vessel owners for a number of years through 17 of their current Coastguard stations around the UK, plus one at the Royal National Lifeboat Institution (RNLI) at Poole, Dorset.

These arrangements are subject to review and an opportunity now presents itself to consider whether alternative arrangements ought to be explored to dispose of expired, damaged or redundant pyrotechnics from service in a more effective and efficient way, while also ensuring that pleasure vessel owners can meet their own legal obligations more easily and conveniently.

This consultation has identified 4 possible options for dealing with pyrotechnics from the pleasure vessel sector and I would urge you, whether you are a boat-owner, a business, a trade association or if you have some other interest in this part of the marine sector, to consider each carefully and respond accordingly.

I look forward to hearing your views on how best to develop an approach that ensures the continued safety of all those who enjoy pleasure boat sailing and recreational activities in and around the UK’s wonderful coastline.

Robert Courts, MP

Parliamentary Under Secretary of State

Introduction

This consultation invites you to consider the Department for Transport (DfT)’s proposal to end the current arrangements it has in place for receiving and disposing of time-expired, damaged or redundant pyrotechnics (marine flares) used by owners of pleasure vessels, should the decision be taken not to renew the existing contract, currently managed by the MCA, which comes to an end in December 2021.

The MCA is an executive agency of the DfT, working to prevent the loss of lives on the coast and at sea, and it has responsibility for:

• producing legislation and guidance in relation to maritime matters
• providing certification to seafarers
• enforcing standards for ship safety, security, pollution prevention and seafarer health, safety and welfare for seafarers through a survey and inspection regime
• the UK Search and Rescue Helicopter service

The consultation also seeks your views on a proposal for the sector itself to provide alternative arrangements if the MCA does withdraw its services. And it aims to identify the key obstacles that may have previously prevented the sector from doing so.

This consultation will be of interest to:

• UK owners of pleasure vessels who, either because of legal requirements or as a matter of good safety practice, keep or carry pyrotechnics (flares) onboard their vessels for use in the event of an emergency at sea
• those who, while not necessarily owning a pleasure vessel themselves, have in their possession time-expired, damaged or redundant flares that need to be disposed of safely

The consultation will also be of interest to those organisations or businesses that:

• manufacture or commercially distribute marine flares
• provide a collection or disposal service
• sell or store pyrotechnics commercially to owners of pleasure vessels
• have a wider interest in the use or disposal of marine flares – this includes Harbour and Port Authorities, boating and yachting clubs, marinas, training facilities, as well as organisations and charities such as the Royal National Lifeboat Institute (RNLI), mooring agents, insurers, marinas, hazardous waste disposal companies, waste management businesses, county councils, local authorities, police, fire services, environmentalists, private or public marine organisations, and other government departments or agencies

A full list of those being consulted is included in Annex C.

How to respond

The consultation period began on 1 February 2021 and will run until 15 March 2021. Further copies and alternative formats (Braille, audio CD and so on) can be obtained by contacting [email protected].

You can respond to the consultation by:

• downloading the response form and emailing this form to [email protected]
• emailing [email protected]
• responding by post to:

TEPs Consultation
Port Resilience
Maritime Operations Division
Maritime Directorate
2nd Floor Great Minster House
33 Marsham Street
London
SW1P 4DR

When responding, state whether you are responding as an individual or representing the views of an organisation. If responding on behalf of a larger organisation:

1. make it clear who the organisation represents
2. indicate how the views of members were assembled

A list of those consulted is included in Annex C. If you have any suggestions of others who may wish to be involved in this process, contact us by email.

Freedom of Information

Information provided in response to this consultation, including personal information, may be subject to publication or disclosure in accordance with the Freedom of Information Act 2000 (FOIA) or the Environmental Information Regulations 2004.

If you want information that you provide to be treated as confidential, be aware that, under the FOIA, there is a statutory Code of Practice with which public authorities must comply and which deals, among other things, with obligations of confidence.

In view of this, it would be helpful if you could explain to us why you regard the information you have provided as confidential. If we receive a request for disclosure of the information, we will take full account of your explanation, but we cannot give an assurance that confidentiality can be maintained in all circumstances. An automatic confidentiality disclaimer generated by your IT system will not, of itself, be regarded as binding on DfT.

DfT will process your personal data in accordance with the Data Protection Act 2018 and in the majority of circumstances, this will mean that your personal data will not be disclosed to third parties.

Confidentiality and data protection

DfT is carrying out this consultation to gather views and evidence to better understand what the possible impacts might be if the MCA withdraws its existing service for disposing of time-expired or damaged flares, or flares that are no longer needed. The consultation sets out 4 possible policy options aimed at articulating the issues and proposing how best a resolution can be taken forward, with the support of the sector industry.

The consultation and the processing of personal data that it entails are necessary for the exercise of our functions as a government department. If your answers contain any information that allows you to be identified, DfT will, under data protection law, be the controller of this information.

As part of this consultation, we’re asking for your name and email address. This is in case we need to ask you any follow-up questions about any of your responses. You do not have to give us this personal information. If you do provide it, we will use it only for the purposes of asking you follow-up questions.

DfT’s privacy policy has more information about your rights in relation to your personal data, how to complain and how to contact the Data Protection Officer.

Your information will be kept securely and destroyed within 12 months after the consultation has been completed.

Scope of the consultation

The consultation specifically focuses on flares carried on board pleasure vessels and does not include those carried on board vessels used for commercial activities, such as the carriage of paying passengers or commercial fishing or other similar businesses. Commercially operated vessels are expected to dispose of their expired, damaged or redundant pyrotechnics through their own waste management plans.

Historically the term ‘TEPs’ (time-expired pyrotechnics) has been used to describe the flares disposed of by owners of pleasure vessels, given that the time expiry is the usual reason for wishing to dispose of them. However, there may be several other reasons why they need to be removed from circulation, such as being damaged, or when they’re no longer needed.

Therefore, for the purposes of this consultation, the term TEPs is used to describe all flares that need to be disposed of by the owners of pleasure vessels for whatever reason including those which are time-expired, damaged or simply no longer needed by the owner. The terms refer to those types of emergency flares purchased for use on pleasure vessels for the specific purpose of raising the alarm in the event of an emergency.

For the purposes of this consultation, the term ‘boat-owner’ refers specifically to owners of pleasure vessels, as defined by MCA’s marine guidance note on pleasure vessels: regulations and exemptions – guidance and best practice advice (MGN 599), which replaces MGN 538M.

Annex IV of the Convention on the International Regulations for Preventing Collisions at Sea 1972 sets out the types of flares, or combinations thereof, to be carried on specific vessels.

Distress flares should only be used in the event of an emergency when immediate assistance is required. Red distress flares are predominantly used at night because they’re more visible, orange distress flares are also used for emergency signalling but are designed to be more effective during daylight hours.

MGN 599M provides guidance and best practice advice in relation to the regulations and exemptions applicable for pleasure vessels. It advises that the types of flares required to be carried are 4 red hand and 2 orange smoke flares.

This consultation relates to the carriage of these types of flares only, and does not seek to cover the use or disposal of electronic flares or any other type of emergency distress signalling equipment, mandated or otherwise, nor does it seek to review the existing legal requirements currently in place in the UK for the carrying of flares.

The consultation is focused on the storage, transport or disposal of TEPs on the UK mainland and includes Northern Ireland, the Isle of Wight, the Scottish Isles and the Scilly Isles. It does not include the Crown Dependencies of the Isle of Man or the Channel Islands.

Legal framework

Main legal provisions relating to the storage, handling and transportation of marine flares used in the pleasure vessel sector

All parties involved in the purchasing, distribution, use, handling, storage, transportation and disposal of marine flares have legal obligations:

• owners of pleasure vessels must not initiate a flare except in an emergency, they’re also legally responsible for the disposal of such flares once their expiry date has been reached, or if they’re damaged, or if no longer needed. Owners of pleasure vessels must not, for example, be disposing of their flares at sea, dumping them in landfill sites or as normal household waste or engage in fly-tipping
• commercial outlets that offer flares for sale also have responsibilities to ensure that they’re licensed to do so and that such items are stored and maintained in compliance with the law. Employers have an obligation to ensure that employees are adequately trained in the safe handling of such devices
• businesses engaged in the disposal of marine flares and other types of flares are also required to be licensed and to ensure that they comply with the law for the purposes of transportation of dangerous goods by road or by sea, their storage and eventual destruction

The main domestic (UK) legislation governing the use of, storage, handling and transportation of flares is set out below:

The Merchant Shipping (Vessels in Commercial Use for Sport or Pleasure) Regulations 1998 (statutory instrument (SI) 1998/2771 – regulation 2)

These regulations define a ‘pleasure vessel’ as:

• (a) any vessel which at the time it’s being used is:
  • (i)
  • (aa) in the case of a vessel wholly owned by an individual or individuals, used only for the sport or pleasure of the owner or the immediate family or friends of the owner, or
  • (bb) in the case of a vessel owned by a body corporate, used only for sport or pleasure and on which the persons on board are employees or officers of the body corporate, or their immediate family or friends, and
  • (ii) on a voyage or excursion which is one for which the owner does not receive money for or in connection with operating the vessel or carrying any person, other than as a contribution to the direct expenses of the operation of the vessel incurred during the voyage or excursion, or
• (b) any vessel wholly owned by or on behalf of a members’ club formed for the purpose of sport or pleasure which, at the time it’s being used, is used only for the sport or pleasure of members of that club or their immediate family, and for the use of which any charges levied are paid into club funds and applied for the general use of the club, and
• (c) in the case of any vessel referred to in paragraphs (a) or (b) above no other payments are made by or on behalf of users of the vessel, other than by the owner.”

The Merchant Shipping (Distress Signals and Prevention of Collisions) Regulations 1996 (SI 1996/75 – regulations 3(3) and 6

These regulations (definitions derived from the Merchant Shipping Act 1995) provide that it’s an offence for the master of a ship to order any signal or distress (including setting off a flare at sea) to be used on his vessel, except in an emergency. For the purposes of these regulations, ‘the master’ is anyone having command or charge of the ship (except a pilot), and a ‘ship’ includes any vessel that is used in navigation, including pleasure vessels as defined.

The Explosives Regulations 2014

These regulations relate to the licensing, acquiring, manufacture, storage, transfer, safety and security of explosives. As marine flares are explosives, the disposal of these items is within the scope of the regulations and, under the regulations, any person (including the owner of a pleasure vessel) who discards or disposes of explosives must ensure, so far as is reasonably practicable, that they’re discarded safely.

Persons can be prosecuted if they’re found not to have done so (regulation 28 of the Explosives Regulations 2014 and section 33 of Schedule 3 to the Health and Safety at Work Act 1974).

The Explosives Regulations came into force in 2014 and replaced or consolidated existing legislation that dealt with the manufacture and storage of explosives.

The provisions within the Explosives Regulations 2014 will not change as a result of the UK withdrawing from the EU and the requirements will remain in place for the foreseeable future.

The Carriage of Dangerous Goods and Use of Transportable Pressure Equipment Regulations 2009 (SI 2009/1348 – regulation 25)

These regulations as amended by the Carriage of Dangerous Goods and Use of Transportable Pressure Equipment (Amendment) Regulations 2011 (SI 2011/1885) and the Energy Act 2013 (Office for Nuclear Regulation) (Consequential Amendments, Transitional Provisions and Savings) Order 2014 (SI 2014/469) impose prohibitions and requirements in relation to the carriage of dangerous goods by road and by rail.

They implement the EU directive in relation to the ADR Agreement (Accord Européen relatif au transport international des marchandises Dangereuses par Route is a European agreement, derived from the UN Model Regulations, concerned with the transnational transport of hazardous materials) into UK law, establish an enforcement regime and identify the different competent authorities assigned with certain tasks or responsibilities:

• the Health and Safety Executive (HSE) is responsible for Class 1 items, relating to classification, special provisions, mixed packaging instructions, the design approval of containers and compartments, and functions in respect of mobile manufacturing units
• the Secretary of State for Defence is responsible for functions in relation to military explosives
• the Secretary of State for Transport is responsible for all other functions

The Health and Safety at Work Act 1974

The act defines the fundamental structure and authority for the encouragement, regulation and enforcement of workplace health, safety and welfare within the UK, and is also relevant to employers and employees associated with the sale (if applicable), handling, storage or transportation of flares, placing on both parties certain obligations around training, competency and responsibilities for handling explosives.

The International Maritime Dangerous Goods Code

The International Maritime Dangerous Goods (IMDG) code, was adopted in 1965, under the direction of the International Maritime Organization. The IMDG code was formed to prevent all types of pollutions at sea. The code also ensures that the goods transported through seaways are packaged in such a way that they can be safely transported.

Background

Owners of pleasure vessels habitually carry a variety of smoke flares on board their vessels, because it’s a sensible safety precaution aimed at assisting them in the event of an emergency at sea. Red distress flares are parachute flares and their carriage is recommended for indicating distress or potential distress when other means are not carried. Handheld flares are more usually used for indicating location and not for raising distress, although owners of pleasure vessels can choose either, or both.

In some circumstances, the carriage of smoke flares is mandated. If a boat owner does carry flares then they have a legal obligation to dispose of them safely when they expire, when they become damaged or are no longer needed. However, the means of facilitating that disposal, and to support owners of pleasure vessels in doing so, has always been inconsistently applied.

Requirements for appropriate storage and disposal were in place prior to the Explosives Regulations 2014, under the Manufacture and Storage of Explosives Regulations 2005 and prior to that, the Explosives Act 1875. When the Ministry of Defence withdrew its explosive ordnance disposal (EOD) service, a gap was created to support pleasure vessel owners in disposing of their flares. In the absence of a comparable market sector solution, the MCA voluntarily agreed to provide an interim last-resort one, even though neither DfT nor the MCA has any statutory duty to provide such a service.

The MCA’s intervention was intended to offer a temporary, last-resort solution for owners of pleasure vessels, in the expectation that industry itself would use the time to develop its own alternatives. Since industry has not yet devised effective measures to support owners of pleasure vessels across the UK, MCA and the government has been left with an obligation to address these issues of public health and safety – but it’s a service provided in addition to the core operational and management responsibilities already placed on the MCA and, for the coastguard, has the potential to impact on their strategic search and rescue capabilities.

There are 18 designated coastguard sites around the UK, including the one at the Royal National Lifeboat Institute (RNLI) at Poole, Dorset. The annual cost for maintaining these sites is, collectively, in the region of £250,000, and this:

• ensures that each building is fully compliant in terms of structure and with the capability for the storage of large numbers of flares
• finances the training and education of its staff as well providing training and education for RNLI staff who also receive the flares or have the task of collecting abandoned flares around the UK coastline or at sea
• finances the administration, literature and other support elements to provide a service to owners of pleasure vessels

When the service was first launched, the MCA was receiving about 60,000 flares per annum, in 2018, they received only 12,000.

The budget for the service falls entirely to the government with no financial imposition being placed on either the marine sector or on the owners of pleasure vessels.

The role of the designated sites and how they currently operate

The MCA has no statutory responsibilities nor duties that require them to accept out-of-date or damaged flares from members of the public. The service is discretionary and is intended to be used as a last resort when no other legal method of disposal is available.

Due to the restrictions on the storage of explosives, the number of sites that can be licensed to accept time-expired or damaged flares is limited, and the service can only accept small numbers of flares and, in some cases, severely damaged flares may not be accepted at all. The scheme is only available on limited island locations in Scotland and there are no licensed sites on islands in England or Wales.

All members of the public are required to make an appointment with their nearest site to ensure that the store has sufficient capacity and that trained operators are available to accept flares from the public. The service requires delivery by the member of the public to one of the licensed and designated sites, which may involve considerable distances and inconvenience since the MCA does not provide a collection service and commercial operations are not permitted to use the scheme.

Due to the necessity of prioritising critical search and rescue operations, the coastguard may not be able to accept TEPs at a booked appointment time, which can lead to significant delays to members of the public, who either must wait until an operator becomes free or will have to book a new appointment resulting in a wasted journey.

The service requires trained operators, which limits the availability of appointments and the scheme is not normally available during the summer, particularly at weekends and over bank holidays, due to the demands of search and rescue operations.

The suitability of the MCA’s current marine flares disposal scheme

The sale of pyrotechnics in the pleasure vessel sector is not monitored to a sufficient extent for figures to be collected regarding the precise numbers of flares sold to owners of pleasure vessels, or what type of flare, or when. The lack of such evidence or data about the number of flares sold to UK owners of pleasure vessels makes it difficult to reach any firm conclusions or make an effective analysis of the issues around the disposal of flares. One of the objectives of this consultation is to seek further evidence to better inform the assumptions that DfT is having to make.

What is known is that the UK pleasure vessel sector is hugely diverse and varied, and extends all around the UK coastline, including Northern Ireland and islands. It’s estimated that there are around 300,000 pleasure vessels used in the UK, ranging from small and large motorboats, sailing boats, yachts, powerboats, sports boats and rigid inflatable boats (RIBs) (based on the number of boats owned by household in the UK 2015 to 2017).

This figure may well be higher, but since not all pleasure vessels need to be registered, precise figures remain elusive. Nonetheless, there are indications that the market across the sector is expanding, with more households likely to own a pleasure vessel now than ever before.

All such pleasure vessels are serviced and supported by a wide range of facilities such as harbours, marinas and berths, from the complex to more basic provisions, including facilities around the UK dedicated for training purposes, yachting clubs, all governed by a complex framework of domestic and international law, predicated on the vessel’s size and tonnage, or the sea area in which they would normally operate and whether they’re used for commercial or purely recreational purposes.

Not all pleasure vessels will be legally required to carry flares, although the MCA provides important guidance about the benefits of having to hand the means of signalling to others that the vessel is in distress or that there is an emergency. It’s recommended that, at the very least, owners of pleasure vessels around the UK should carry 6 handheld flares, of which 4 should be red smoke and 2 should be orange smoke.

These can be purchased from many commercial outlets, not just from the marine environment, with individual flares costing around £10, and an ‘offshore’ pack of 6 in the region of £150 to £200 (these packs typically contain 4 red handheld flares, 4 red parachute flares and 2 buoyant orange smoke flares). Many owners of pleasure vessels opt for these packs – especially if taking their vessel to France, for example, where it’s a requirement to carry such packs. Flares usually have a manufacturer time-warranty of 3 years, after which they should be replaced.

Indicative figures suggest that the number of individual smoke flares sold commercially on the UK mainland market is about 60,000 annually. DfT is suggesting that, as an assumption, a further 10% could be added to that figure from sales in, for example, the Isle of Man, Scilly Isles and the Channel Islands, or from EU member states such as the Republic of Ireland, France or the Netherlands, increasing the number to an estimated 70,000 flares being purchased annually by UK owners of pleasure vessels.

However, if the number of those vessels that carry the recommended 6 flares is in the region of about a fifth of the overall boat-owning community – 20% or 60,000 vessels (although it’s highly probable to be more) – then there could be about 360,000 flares in circulation during any one 3-year period. Therefore, there is a big difference between the number of flares purchased by the owners of pleasure vessels annually and the overall number of flares that may be stored on vessels or elsewhere (such as garages, garden sheds or anywhere else in a domestic environment).

In the absence of any further detailed evidence, DfT is using these figures as a means of making initial assumptions of the scale of the issue and, from that, an indication of what further consideration may be needed. Therefore, DfT is very willing to receive evidence and analysis that can inform those assumptions further to provide a more accurate picture.

There has been a steady decrease in the number of flares that the MCA receives, from about 60,000 per year, now down to about 12,000 flares collectively (36,000 over a 3-year period) from the 18 designated sites. It could, therefore, be estimated that each site receives about 700 time-expired pyrotechnics every year, which includes those washed up or abandoned in and around the UK coastline, although the national distribution of flares received does not fit into such a neat pattern and there are regional variations.

Therefore, the number collected by the MCA represents only about 18% of the overall number of flares sold on the UK market and about 10% of the number of flares that are carried by owners of pleasure vessels, based on DfT’s current assumptions. The picture relating to disposal of flares around the UK remains unclear, given the lack of information relating to the numbers and nature of existing schemes that may already offer owners of pleasure vessels solutions and which operate without the involvement or knowledge of the MCA, and for which there is little statistical data available to make more accurate assumptions.

For example, manufacturers and distributors of flares may already have arrangements in place for the collection and disposal of marine flares through their own or associated outlets who, in turn, may have working arrangements with owners of pleasure vessels and marine businesses, there may be options available to owners of pleasure vessels abroad, but there is no evidence to support this assumption at the moment.

In any event, the figures suggest that, despite the recognised service that the MCA offer to owners of pleasure vessels, there is, ultimately, no real value for money for the government and that the service itself, given that it’s supposed to act as a last resort, maybe competing against other schemes that may offer owners of pleasure vessels better alternatives, but not necessarily on a national basis.

The existing contract that the MCA has in place with a commercial ordnance company will come to an end in December 2021, having been extended already. Therefore, the MCA will need to decide whether or not to seek a new contract or whether some other approach should be pursued.

In the event that the MCA do not set up a new contract, DfT would like to encourage and support the sector to develop its own solutions, and to offer what help and support it can to ensure that any new scheme, or schemes, can offer an effective and viable range of options to owners of pleasure vessels, although this is not intended in any way to negate the services that may well already exist at a local or regional level. As part of this consultation, DfT would also like to identify and resolve the obstacles that have prevented the industry from acting sooner.

In the event that the MCA does not renew its contract, the coastguard will, nonetheless, continue to respond to incidences where flares have been abandoned along the UK coastline as a matter of public safety, noting that it’s illegal to abandon flares or to dispose of them at sea.

The MCA will dispose of such items, but access for owners of pleasure vessels to the service currently offered through the designated sites will cease and no longer be a last-resort option, which may lead to the unintended consequence of increased abandonment of flares. Therefore, it’s in the interests of all to work together towards developing an enduring national framework.

It’s for that reason that alternative options need to be made available and promoted to ensure that owners of pleasure vessels can dispose of their flares safely and legally.

Previous schemes and attempts to provide an effective, long-term solution

DfT is aware that a range of alternative schemes and services have been explored and attempted by different parts of the industry and in different parts of the UK. There have been moderately successful crowd-funding initiatives around the UK, more usually known as ‘amnesties’ (often taking place as part of marine safety days) aimed at encouraging owners of pleasure vessels to hand in their redundant flares. Trade and industry organisations have attempted to encourage the small and medium businesses within the sector to offer a collection service and to establish contracts with disposal companies.

However, DfT is also aware that none of these schemes appear to have gained much traction within the wider boat-owning community and there appear to have been a number of reasons for this:

• the perceived cost to owners of pleasure vessels
• the cost of installing storage facilities
• the cost of training employees in the correct handling and management of flares, particularly very time-expired ones or those that are damaged
• the increased administrative burdens and costs to be faced by small commercial businesses, also deterred by the overall impositions and increased risks associated with such a service
• a general assumption that owners of pleasure vessels should be fully supported by the government in their leisure pursuits and that the MCA, instead of reducing its service, should widen it further and make it more dedicated to the needs of the pleasure vessel community and that it’s, ultimately, the responsibility of the MCA to provide a solution

While there may be some validity in these reasons for the reluctance of the pleasure vessel sector to engage in developing an effective range of solutions, they do not justify the continued failure of the market to respond, as other sectors have, and to properly and responsibly address the management and safe disposal of its own waste.

The MCA’s service was only ever intended to be a voluntary last-resort stop-gap until something else – industry-led – could be set up. The industry has so far failed to organise itself in such a way as to be able to offer the extremely diverse boat-owning community robust options and solutions that work across the UK. Indeed, evidence suggests that some pleasure vessel owners take the easy option of dumping their redundant flares at sea or elsewhere around the UK coast.

This is illegal and introduces unnecessary risks to public health, safety and the environment. The consequence of such actions is to leave it for the government to resolve and for the government to pay for, rather than industry addressing the issue itself.

Further consideration

Despite the free service that the MCA offers and the possibility of other commercial-based schemes being available to owners of pleasure vessels, there is clear evidence that there is a section of the community (and elsewhere) that continues to ignore its legal responsibilities and has no regard for public health and safety, or the possible impacts on the environment.

Flares being dumped in the sea, buried along the coast, or included in household waste or on landfill sites, or left anonymously outside police or fire stations remains a recurring and an increasingly frequent problem that carries the risk of personal injury or even death.

Furthermore, there is a need – and an opportunity – to support those people who no longer own, or perhaps never owned, a pleasure vessel, or who have come into possession of marine flares through no fault of their own – for example, through house purchase where flares are discovered stored in an ostensibly empty garage.

Neither the police nor the fire brigade are suitably equipped or trained to dispose of such items and, short of calling out the coastguard or a certified disposal company (which may attract a significant cost), the individual concerned may not know what to do with them and this can lead to the irresponsible behaviours described above, in the absence of clear guidance and information about what to do and how to properly dispose of flares.

The proposed options

The objectives of the consultation are to:

• identify the obstacles that industry faces in developing a truly national range of options to support owners of pleasure vessels in the disposal of expired, damaged or redundant flares, and to seek ways to overcome those obstacles
• work in raising the profile of any existing schemes that offer solutions to recreational owners of pleasure vessels
• to find a solution that removes the current cost burden for disposal from the government

DfT recognises that any future arrangements that are put in place must offer a seamless, effective and comparable service. Indeed, it’s crucial that the options that are developed for owners of pleasure vessels make it easier, both in terms of cost and availability, for them to dispose of their marine flares with the minimum amount of inconvenience while, at the same time, ensuring that they’re able to meet their legal obligations.

On that basis, DfT has put forward 4 options in relation to the future arrangements for the disposal of marine flares and has considered what each option means in relation to achieving the desired outcomes already described. For each option, DfT is also considering the potential costs and benefits, as well as undertaking an analysis of how any enforcement regime would be affected.

Therefore, we would welcome your views in relation to the options, each of which are set out below, and supported by a specific set of questions.

In particular, DfT would welcome any evidence or analysis that supports your answers so as to better inform our understanding of the issues and help shape the outcomes.

Policy option 1: Do nothing

If this option is selected, the MCA would not renew their contract with the authorised ordnance company, which is ending in December 2021. As a result, the MCA would no longer be offering a public-facing service for the receipt and collection of TEPs from owners of pleasure vessels, since they would have no formal means of having them taken away and disposed of.

However, the MCA would continue to maintain a limited capability so that they can deal with the removal and destruction of flares that are abandoned around the UK coast, but such arrangements are likely to be considerably less effective than they currently are since there may not be a need to retain 18 designated sites or to keep all of them to the required level of compliance required under the Explosives Regulations 2014.

It’s highly likely that the impact of this option if selected, would be to remove an important route for owners of pleasure vessels to dispose of their flares and this could impact nationally, rather than regionally. There is a strong likelihood that, in the absence of such a recognised national scheme, as currently exists, greater numbers of flares will be disposed of or abandoned at sea and elsewhere, such as in household waste or dumped at landfill sites, thereby increasing the risks to public safety, property, and the land and marine environment.

The removal of such a service could send a negative signal out to the marin,e sector that government has no interest in the safe disposal of flares and thereby encourage irresponsible disposal, but it would not solve anything since the MCA would still have to respond to reports of abandoned flares within the coastal area and the taxpayer would still meet the cost.

Enforcement

Maintaining effective enforcement measures may continue to be problematic since nothing changes to make it easier to link an individual with an offence – indeed, all that could potentially happen is that the number of offences increases due to the MCA route for flare disposal being removed.

The MCA has limited powers that it can draw on to proceed with prosecutions directly relating to abandoned flares and current effectiveness is dependent on being able to make a clear link between the committing of an offence with an individual, whether they’re fly-tipping or just abandoning flares.

Currently, enforcement of the Explosives Regulations 2014 usually falls to trading standards officers. However, if the dumping of marine flares becomes more prevalent due to the lack of disposal options, other solutions might need to be considered, including extending existing enforcement powers in relation to the disposal of explosives to the MCA, strengthening existing offences or even legislating to establish new offences.

These options would likely involve an increase in costs and resources to carry out enforcement with no certainty that the new enforcement regime will act as a sufficient deterrent.

Costs and benefits

It’s unlikely that there will be any benefits in adopting this option since the removal of the MCA’s service risks creating (or increasing) a gap that may already exist in the sector and, as a result, may encourage more owners of pleasure vessels to dispose of their redundant flares in an irresponsible way. Since industry itself does not yet seem motivated to act in a coordinated way to fill that gap across the UK, the likelihood of abandoned flares being found, and needing to be collected, in the interests of public safety will increase.

If DfT’s assumptions are correct, greater quantities of flares that are illegally disposed or abandoned will only add to the burdens on the coastguard and other services, risk undermining the coastguard search and rescue capability, and increase the resource burdens on other services, such as the police, whose officers are required to spend a greater amount of time and effort collecting abandoned flares from around the UK coastline and inland areas. It’s possible that an increase in flares being abandoned could also lead to additional incidences of personal injury or even death, damage to property, and security events leading to increased insurance claims and higher insurance premiums.

The monetary cost of this option is difficult to quantify, but the evidence available suggests that there will be an increased risk to public safety and to property being damaged (such as landfill sites and vehicles used for the collection of household waste). Several incidents have occurred in recent years at such premises and the cost of repair (or completely rebuilding sites) can run to several million pounds.

In conclusion, if the MCA’s service to owners of pleasure vessels is withdrawn, DfT recognises the need to work with industry to develop more appropriate and workable solutions across the whole of the UK. DfT does not believe that doing nothing offers a responsible solution to a wide-ranging issue and has concluded that withdrawing this service without an alternative being identified could easily lead to an increase in the numbers of flares abandoned around the UK coast, inland and in landfill sites, therefore increasing the risk to public safety and the environment.

Question set 1

• a. Would you support this policy option? If so, why?
• b. Do you believe that DfT is overstating the potential risks (to public health, to property and the marine environment) and costs associated with developing this policy option?
• c. Are you able to provide evidence or data that can help demonstrate that the removal of the MCA’s involvement would not significantly impact on owners of pleasure vessels being able to dispose of their flares?
• d. Do you have any other views about this option?

Policy option 2: business as usual

This option would maintain the status quo in that:

• the MCA would renew its contract with an ordnance disposal company (either with the existing company or a new one based on DfT procurement and tendering rules)
• all 18 designated sites (including one at the RNLI in Poole) would continue to be used and to have trained officers available for receiving flares
• the current level of service to pleasure vessel owners would continue to be paid for by the government.

However, this option would move the existing service from one of last resort to one requiring a more permanent footing, so the business as usual model would, in fact, cease to be applicable.

From the perspective of the boat owner and the industry, this option would change nothing from the current arrangements and would be considered as ‘business as usual’. Neither owners of pleasure vessels nor the industry would become responsible or liable of meeting their legal obligations for ensuring that their TEPs are properly disposed of.

There would be no advantages to the MCA, who would have to continue to maintain their sites to the required standards, and ensure that their staff and volunteers remained competently trained, and familiar with the business of recovering, handling and storing flares safely.

Enforcement

As with policy option 1, and for the same reasons, enforcement would remain problematic, and the issues are unlikely to be overcome without strengthening the enforcement regime, since the MCA’s core activities are based on anti-pollution and safety at sea, not more general enforcement landside.

However, retaining the existing service (moving it from a service of last resort to something more permanent) would also have to be based on owners of pleasure vessels being encouraged to make better use of it and, therefore, provide better value for money to the government.

Given that the number of flares deposited at the MCA sites has been decreasing over the years, and given that there is a resource tension between offering an effective service to owners of pleasure vessels, juxtaposed with the overarching strategic priorities of search and rescue, it’s unlikely that the reliability of the service, beyond what it offers now, could be significantly improved upon.

This, in turn, means that for owners of pleasure vessels to deposit their flares by arrangement at one of the MCA sites will continue to involve the inconvenience of a time-consuming – and costly – journey to and from any one of the MCA’s designated sites, and make it more difficult for them to meet their legal obligations.

Costs and benefits

One of the main points of having any kind of effective UK-wide service for the disposal of marine flares is to ensure that there is a recognised route for removing TEPs from society and that public safety is assured, allowing for everyone to use and enjoy the coast, beaches or sea, either for recreational or business purposes, and that potentially harmful TEPs are prevented from entering the marine environment.

However, the indications are that only a small percentage of owners of pleasure vessels use the current service, making it an expensive, but largely ineffective, use of taxpayers’ money and brings into question how those flares not removed through the MCA service are currently being disposed of. This suggests that any benefits that the current system offers are lost and that retaining the service in its current form will not improve uptake from recreational owners of pleasure vessels.

In respect of costs, the MCA spends around £250,000 a year to retain all of its 18 designated sites, including the one at the RNLI in Poole. These costs include the training of volunteers and staff, and the provision of equipment and a range of administrative tools to ensure that owners of pleasure vessels can access the system.

The cost also includes the actual collection and disposal of flares by a contracted ordnance company used by the MCA. These costs, to support the MCA’s obligations, will not diminish and may well increase in the coming years as the sites become, because of their age, more difficult to upgrade and adapt for the purposes of storing flares.

The current sites and existing arrangements were designed for a 10-year operational period and are now beginning to exceed the design limitations, which, in turn, may necessitate some refurbishment or replacement of existing storage capabilities. Some of the newer sites used by the coastguard would also be unsuitable for disposal and storage purposes. Therefore, if option 2 was pursued, there could be an unquantified cost (to the taxpayer) to ensure that the existing, or future, infrastructure remains safe and fit for purpose.

In conclusion, DfT does not believe that by retaining the status quo, the key points of the consultation are addressed sufficiently well to make it viable, since what would have to change is the very nature and design of the service, moving from one of temporary last resort to one of permanency.

As the current services provided by the MCA are unlikely to experience a renaissance of engagement from owners of pleasure vessels, costs to the government would also remain (and need to increase over time), which would be at odds not only with how other sectors manage the disposal of their own waste but also with the government’s ‘polluter pays’ principles.

Furthermore, resources that could be better directed to search and rescue activities would remain hamstrung by a need to provide a service that is not fully taken advantage of and which does not, by its very nature, offer a quick and easy option for recreational owners of pleasure vessels.

Question set 2

• e. Do you believe that the government should continue to pay for the service to support owners of pleasure vessels to dispose of their marine flares?
• f. If yes, do you then believe that this is a good use of taxpayers’ money?
• g. Are you able to provide further evidence or data that supports your view (for example, that you have demonstrable evidence that the existing service provides the most efficient method and/or offers the best value for money for the taxpayer?)
• h. Do you have any other views about this option?

Policy option 3: full regulatory intervention

Under the current regulatory framework, manufacturers, distributors, commercial outlets and those with similar business and commercial interests in flares need to comply primarily with the Explosives Regulations 2014, the Health and Safety at Work Act 1974 and the international rules relating to the transport of dangerous goods by road as implemented via the Carriage of Dangerous Goods and Use of Transportable Pressure Equipment Regulations 2009.

A boat owner is responsible, as an individual legal entity, for disposing of their expired flares under the Explosives Regulations 2014, but it’s not clear to what extent owners of pleasure vessels are aware of this obligation. They’re more likely to be aware that they would be committing an offence under the Merchant Shipping (Distress Signals and Prevention of Collisions) Regulations 1996 if they initiate a flare, except in an emergency.

The intended outcome of this policy option would be to ensure that the lifecycle of all marine flares used by owners of pleasure vessels is not only fully regulated, but enforced, from cradle to grave and that the main actors involved are brought into scope of those rules – and this will include, but not necessarily be limited to, manufacturing, distribution, commercial sales, handling, storage and eventual disposal of flares.

Owners of pleasure vessels would also need to be brought into scope of such regulations, as well as anyone else who has in their possession any type of marine flare (stored at home, for example).

The flares themselves would need to be registered, provided with some unique mark or system to enable traceability and directly associate individual items with those who sold them commercially, as well as with those who have purchased them and, ultimately, what becomes of them.

The intention would be to create an unbreakable and effective audit trail that would, for the purposes of dealing with abandoned flares around the UK coast, or dumped in household waste or landfill sites, establish their provenance and ownership so that the enforcement of the rules – and possible prosecutions – can be applied.

It follows that, for example, owners of pleasure vessels would be required to demonstrate that their TEPs were returned to a recognised and licensed UK outlet responsible for handling, storing and arranging disposal of those flares and that any appropriate enforcement agency could check the audit trail of any flare.

Enforcement

Applying this policy option would mean that the commercial sale of marine pyrotechnics would need to be fully regulated to ensure that those selling and purchasing flares are accountable.

This implies that every commercial outlet would need to be licensed to buy, sell, transport, store and eventually dispose of their flares through a clearly defined and regulated system. Individual owners of pleasure vessels would need to be licensed to buy, transport, store and dispose of flares. A more rigorous enforcement regime would need to be developed to apply any such new requirements, in addition to providing advice, familiarisation guidance and support and, if necessary, taking forward prosecutions.

It would be difficult to enforce this for non-UK owners of pleasure vessels who may purchase flares in the UK and, conversely, UK owners of pleasure vessels who may purchase their flares through the internet or from abroad, nor would it be easily enforceable if UK owners of pleasure vessels dispose of their flares abroad. Since the majority of marine flares sold in the UK are manufactured overseas and are, therefore, not compelled to comply with domestic legislation, a UK process would have to be established whereby individual flares can be identified before being sold in the UK.

The costs related to enforcement would fall to the taxpayer unless the costs for such a mechanism was directed at the industry and – possibly – the owners of pleasure vessels. DfT has not yet assessed the cost of setting up such an enforcement regime to enforce changes in the law.

Nor has it assessed what changes to the law would need to be made, but, given that existing powers are unlikely to be sufficiently robust to address any new elements being introduced (such as creating audit trails and requiring registration) and would need to cover the whole geographical area of the UK, the eventual cost, for recruitment, for supporting measures and for taking forward successful prosecutions is likely to be prohibitive.

While that may not in itself be a sufficient reason for not pursuing this option, the measure of its effectiveness could only be based on how successful it was in its application.

It’s also important to note that, as in the 2 previous options, the actual enforcement of any new rules would need to sit with an agency (or agencies) most suitably placed for their delivery. For example, the Explosives Regulations 2014 sit with the Health and Safety Executive, as does the Health and Safety at Work Act 1974.

It’s through trading standards officers that those elements would be enforced, while inappropriate ignition of flares at sea would sit with the MCA, carriage of dangerous goods by road would sit with the police and/or the Driver and Vehicle Standards Agency (DVSA), and fly-tipping and other illegal waste disposal practices associated with environmental damage would sit with the Environment Agency.

Therefore, since each agency has its own specific interest in different areas of the lifecycle of a marine flare, it’s unlikely that any one agency could deliver effective enforcement on each element or, conversely, that a combination of agencies could coordinate their enforcement regimes to provide a holistic and effective approach across the entire sector.

Costs and benefits

Establishing any kind of more wide-ranging regulatory regime for the sale, circulation and disposal of marine flares in the UK would require additional administrative burdens being placed on manufacturers, distributors, commercial outlets, storage and disposal companies, and other legal entities, as well as placing a further set of legal obligations on recreational owners of pleasure vessels.

There would be a need to put in place systems and processes to control the circulation of marine flares, create a workable and effective audit trail that could verify ownership, and maintain a record of flares purchased and flares destroyed. This would probably create an additional cost for the government.

There are likely to be significant financial costs associated with putting in place such measures that would, ultimately, fall to those wishing (or being required) to purchase flares (for example, owners of pleasure vessels). This could have the unintended consequence of discouraging pleasure vessel owners from carrying flares at all.

No work has yet been carried out to assess the costs or actual burdens that would arise from these requirements, or what the offences, defences and penalties might be. It’s most likely that, if this option was developed, it would require changes to the existing legislation and it’s possible that new primary legislation might be required.

In addition to these issues, there would need to be further consideration as to what rules would be needed if recreational owners of pleasure vessels purchased their flares from abroad, where regulatory requirements will be different and would not necessarily apply in the UK. Similarly, there are issues around what actions and enforcement could be applied to non-UK owners of pleasure vessels wishing to purchase or deposit their time-expired marine flares in the UK.

In conclusion, DfT does not believe that this approach will achieve the desired outcome in supporting the pleasure vessel community in managing the disposal of marine flares. It could more than likely add an unworkable and complex burden of bureaucracy, particularly given the already complex framework of rules and regulations that exist concerning the definition and use of pleasure vessels, and the legal requirements that may apply for carrying flares.

It would also, most likely, create a costly and resource-intense enforcement regime, funded by the government and which would, therefore, be at odds with the government’s policy of applying the ‘polluter pays’ principle.

Question set 3

• i. Do you support the proposal to develop a full regulatory framework for the disposal of marine flares, underpinned by a wide-ranging enforcement framework, and formal controls for the sale and purchase of marine flares?
• j. If yes, do you believe that this would be the most efficient and cost-effective approach for ensuring that owners of pleasure vessels become liable for the proper disposal of their marine flares?
• k. Are you able to provide any further evidence or analysis to support your view?
• l. Do you have any other views regarding this option?

Policy option 4: industry-led self-regulation (DfT’s preferred option)

If DfT and the MCA do proceed in withdrawing the existing public-facing service offered to owners of pleasure vessels for the disposal of their time-expired pyrotechnics, this will mean that such an option will no longer be available to them. Therefore, they will have to either find other legitimate routes to have their flares destroyed.

This may increase the likelihood of some pleasure vessel owners choosing to illegally dispose of them themselves by either abandoning them at sea or around the UK coast, or by leaving them in household waste and landfill sites. The likely increases in this activity will increase risks to public health and safety, increase the risk of damage to property, and, potentially, harm the UK marine environment.

In other industry sectors that produce waste – such as car tyres, batteries, asbestos, oils, gases cylinders, hazardous and harmful substances, and so on – industry itself is legally required to have in place effective mechanisms and processes that facilitate the safe management, containment, storage and disposal of such items to which the public can have access and for which they’re usually obliged to pay for. In many cases, the prompts for such regulatory measures came from an environmental perspective, but also with public and health safety considerations that had driven either domestic or international law in addressing these concerns.

Likewise, boating organisations, marinas, maintenance facilities and other key actors in the recreational boat industry have, over recent years, invested in good waste management policies with collection points in yacht harbours that will allow for separating general waste, paper, plastics, glass, bilge water, oil and chemicals for proper disposal.

It’s perhaps not unreasonable, therefore, to encourage the recreational boating sector to adopt a similar approach in disposing of its own waste products – this has already been developed to some extent regarding the disposal of recreational boats themselves, particularly those made of fibre-reinforced plastic (FRP).

Therefore, policy option 4 reflects DfT’s view that similar arrangements could be put in place with the voluntary and active engagement of the pleasure vessel industry. Underpinned by existing legislation, the objective would be to promote and encourage the safe and responsible disposal of TEPs by offering the boat-owning community a range of easily accessible and appropriate options to dispose of their flares through a recognised and competent disposal system, for which the boating community – rather than the government – ought to pay. Such an approach would be consistent with the government’s ‘polluter pays’ principle, although the cost for disposal can be set by industry itself so as to provide the best solutions at costs that are not prohibitive.

Given the diversity of the pleasure vessel sector, DfT would not seek to provide a single one-size-fits-all solution since that would not necessarily meet the needs of the different parts of the sector across the UK. Instead, the industry should be allowed and encouraged to adapt and adopt its own processes and procedures that can best meet the specific needs of the individual boating communities that it serves around the UK, with the only constraints being a requirement to comply with the relevant legislation.

Therefore, any or all of the following combinations, so long as they provided effective and straightforward solutions and options to owners of pleasure vessels, would be available:

• crowd-funding ‘amnesties’
• formal exchange mechanisms between the seller and the buyer
• paying a charge for disposal
• adding a small surcharge

The decision as to which to adopt would be left entirely to the market.

In its simplest form, there are 3 main actors involved in the process of disposing of TEPs:

1. The owners of pleasure vessels themselves, who have a legal responsibility to dispose of flares safely.
2. A commercial outlet voluntarily offering to receive and store TEPs (and this could include flare manufacturers, waste management companies or other commercial entities who may recognise a business opportunity).
3. An ordnance company that agrees to collect such flares from a commercial outlet and disposes of them in line with the relevant regulation.

Each element of such a voluntary arrangement is explored in more detail in Annex C and you are invited to read this to help understand what, in principle, the government’s preferred option would involve for each actor in the process and where the government may be able to help in galvanising long-term uptake.

Enforcement

Although the preferred option would be voluntary, based on business modelling, the needs of the market and the commercial opportunities it may offer, any such arrangement would need only be supported and underpinned by the legislation that already exists with regards to the lifecycle of a marine flare used by owners of pleasure vessels. Enforcement would be directed in a more effective way to encourage owners of pleasure vessels to take advantage of a wider range of options that were hitherto unavailable or not clearly visible to them.

In short, there would not be a need to create any new offences or penalties. Industry already works within the established legislative framework that it already understands, and it works well when it’s properly applied.

For owners of pleasure vessels, it’s important to remind them that, under section 28 of the Explosives Regulations 2014, they already have a legal duty to dispose of their time-expired flares safely.

In the absence of any established national industry scheme enabling owners of pleasure vessels to do so, government intervention becomes more likely (as suggested in option 3), but there are significant issues with this that have already been discussed.

DfT takes the view that, ultimately, the sector itself should be responsible for the disposal of its own waste and that it’s best placed to achieve this by working collaboratively to achieve a common benefit by supporting owners of pleasure vessels with an accessible and appropriate range of options for them to dispose of their flares.

Costs and benefits

DfT believes that the ‘polluter pays’ principle must be applied in this sector, just as it’s elsewhere, and that it’s the responsibility of the industry sector to have in place appropriate and effective measures for disposing of its own waste – which includes TEPs.

The cost, whatever it may be, if policy option 4 is taken forward, should be reasonable and not prohibitive to owners of pleasure vessels, and it must be seen to be fair and reasonable and that it’s more cost-effective to have the flares disposed of locally, rather than having to drive some distance to the nearest MCA coastguard site.

However, it may be possible for the cost itself to be recouped in different ways, and it does not necessarily have to fall directly to the boat owner if industry is able to work together and organise itself to devise different ways to cover the cost.

Changing, improving or genuinely widening the options available to owners for pleasure vessels will inevitably require, on the one hand, a trade-off between the potential cost for the safe disposal of their TEPs and, on the other hand, the possibilities for disposal of them at more suitable and conveniently located points right across the UK, which themselves are more likely to be able to respond to the specific geographical needs of the boat owner.

Ultimately, DfT wishes to ensure that any changes to the options of disposing of marine flares not only provide a better and improved level of service, but that, in doing so, it does not place an unreasonable or onerous financial burden on owners of pleasure vessels, or anyone else, beyond those that they may already pay in terms of other associated but hidden costs – for example, using a car and the cost of petrol to drive to (and from) one of the 18 designated sites.

Indeed, the automotive industry offers a comparable example of how an industry sector is responsible for managing its waste. Taking just one aspect, owners of private cars are under legal obligations to ensure that their vehicle meets certain minimum safety, roadworthiness and emission standards and that vehicles have the appropriate road tax and insurance in place.

In the event of, for example, tyres needing to be replaced (because they no longer meet the legal minimum standard), it’s the responsibility of the individual owner to pay for their replacement – not the taxpayer. If they have new tyres fitted through an automotive outlet involved in the sale, fitting and disposal of tyres, car-owners will also pay a small charge for the disposal of their old tyres (typically, nationally a charge of £1.50 to £2 is levied for each tyre to be disposed of).

This will be true for recreational owners of pleasure vessels who are legally required to carry flares, or for those who do so as part of best safety practice. However, the cost does not necessarily need to fall directly on the boat owner if industry is able to offer more effective and fair options.

The comparison between tyres and expired marine flares is very close in so far as that, for both products, disposal is problematic in terms of recyclability. Neither should be disposed of in skips or at landfill sites, and any garage that replaces tyres is likely to include a surcharge for disposing of the worn or damaged tyres.

If individuals have tyres to dispose of, local councils may remove them, for a charge, or there are businesses who are licensed to take redundant tyres and dispose of them safely – but they’re likely to charge for such a service to recoup costs for their safe disposal. Likewise, for flares, their safe disposal is likely to incur a cost.

One of the main objectives of this consultation is to assess, as far as possible, what the cost for disposal of flares could be, who would pay for it, and how any system, or systems, would operate.

Question set 4

• m. Do you support the proposal for self-regulation by industry in the disposal of marine flares?
• n. If not, is it because you believe that this would fail to be an effective way of managing the disposal of marine flares?
• o. What do you see as the main challenges and obstacles for supporting such an option?
• p. Are you able to provide any analysis or further evidence to support your view?
• q. Do you have any other views regarding this proposal?

Taking into account the 4 policy options that DfT has identified, there is one final question aimed at articulating your overall views about the situation for the disposal of time-expired, damaged or redundant marine flares from the recreational boating sector.

Final question

If not described in the previous 4 policy options, what other solution (or solutions) do you think would succeed in achieving the desired objectives that strikes the right balance between offering value for money to the government, makes industry responsible for disposing of its own waste, and reduces the potential harm to the health and safety of the wider public, property and the natural environment?

This concludes the formal questions related to the 4 policy options that DfT has identified and you are invited to respond to each set of questions, providing any evidence or data that you may be able to provide to support your views or analysis.

What will happen next

The department will publish a response to the consultation – usually within 3 months of the closing date. Paper copies are available on request.

If you have questions about this consultation, contact [email protected].

Annex A: consultation principles

The consultation is being conducted in line with the government’s consultation principles.

For further comments about the consultation process, contact [email protected].

Annex B: list of those consulted

• British Marine Federation
• British Safety Council
• Brocks Fireworks
• CalMac Ferries
• Cowes Harbour Commission
• Cowes Harbour Shepards Marina
• Cowes Harbour Services
• Cruising Association
• Dean & Reddyhoff Marinas
• Dover Marina
• East Cowes Marina
• Emsworth Yacht Harbour
• Environmental Services Agency (UK)
• EOD
• EPC-GROUPE (UK)
• Falcon Marinas
• Firemagic Fireworks
• Fireworks FX
• Gillingham Marina
• Hansson Fleming
• Harbour Masters Association (UK)
• Hartlepool Marina Ltd
• Haslar Marina
• Health & Safety Executive
• HFM
• Hull Marina
• Ignite Pyrotechnics
• Ikarus
• Institute of Explosives Engineers
• James Watt Dock Marina
• King Point Marina
• Kip Marina
• Liverpool Marina Office
• Kip Marina
• Le Maitre
• Liverpool Marine Office
• Maritime & Coastguard Agency
• MDL Marinas
• Milford Marina
• Mountain Rescue
• National Fire Chiefs Council
• National Police Chiefs Council
• National Trading Standards Association
• North Link Ferries
• Ocean Safety
• Park Insurance
• Phoenix Fireworks
• Police
• Poole Quay Boat Haven
• Portland Marina
• Powerhaul International
• Premier Marinas
• Preston Marina
• Quay Marinas
• Ramora
• Red Funnel Line
• RMT
• RNLI
• Royal Cinque Ports Yachting Club
• Royal Yacht Association
• St Katherine’s Dock
• Sailport PLC
• Shellscape Pyrotechnics
• Shotley Marina
• Sutton Harbour
• Tollesbury Marina
• Tradebe
• Vehicle Certification Agency
• Wescom Signal Group
• Whitehaven Marina
• Yacht Harbour Association
• Yacht Havens Marinas
• Yarmouth Harbour

Annex C: policy option 4 – industry-led self-regulation (DfT’s preferred option)

Main considerations

There must be legal and appropriate options for owners of pleasure vessels to hand in their flares for disposal to those who can demonstrate that they have the necessary competencies, skills, training and facilities to receive them, thereby ensuring that owners of pleasure vessels have fulfilled their own legal obligations.

Marine flares are by their nature, and for the purposes of the law, classified as explosives. They’re considered to be more dangerous if they’re damaged or expired. All licensed parties involved in the storage, handling, transportation and disposal of such flares must demonstrate compliance with these requirements, and show that all due care and diligence has been properly applied – and if not, they can be prosecuted and lose their licences.

Therefore, a main component of any scheme(s) being used to manage the disposal of marine flares must be an ability to demonstrate to recreational owners of pleasure vessels that their service can be trusted, that it’s transparent, and that employers and employees of that service are fully trained and competent.

This is not, however, just an issue for owners of pleasure vessels wishing to dispose of their redundant flares. On any occasion where flares are found or recovered, whether they have been abandoned, left on the door handles of a fire or police station, found in landfill sites or in household waste, or whether they have been unearthed in a garage, the ‘owner’ of the flare has legal responsibilities to dispose of those flares safely and responsibly. This implies that any scheme(s) developed by industry must be adapted to accommodate a range of different possibilities and of flares having, potentially, different provenances.

The current service provided by the MCA through 18 designated sites offers some level of assurance to those recreational owners of pleasure vessels that use those facilities. The buildings are required to meet current (and ongoing) safety standards in compliance with the Explosives Regulations 2014, and staff and volunteers must be fully trained to a level commensurate to their responsibilities around handling and storing time-expired or damaged flares, or those that are no longer needed. The MCA also ensures that, where it’s necessary, the collection of abandoned flares around the UK, which includes arrangements with Northern Ireland, meets the strict rules governing the transportation of dangerous goods by road.

Therefore, in the absence of the MCA’s service, those who may wish to voluntarily offer alternative options to owners of pleasure vessels will need to ensure that they’re able to offer a comparable level of service so that owners of pleasure vessels (and others) can have the confidence that, when they hand over their flares, the service provider will conform to the law, they’re approved and certified, and that in all respects they meet their own legal obligations.

However, since the overall integrity of the solutions must maintain and build trust with recreational owners of pleasure vessels – without that trust and support, people are less likely to use any option, even though it may be offering an otherwise excellent service – it’s worth underlining 3 points:

1. That in formulating and developing a scheme (or schemes) to ensure flares are disposed of safely, there are not any legal obligations requiring anyone to offer such a service. It remains for individual businesses to determine whether there are commercial opportunities, or other benefits (such as increased repute and an additional benefit to owners of pleasure vessels within, say, a harbour environment) that they can secure by voluntarily offering to receive and arrange disposal of flares.
2. Such voluntary decisions are not, nor should they be, limited to only those businesses that operate within the marine environment. While, from a boat owner’s perspective, it’s probably more convenient and easier to dispose of their flares within the harbour area where their vessel is moored, there is no requirement to limit the scope of who can offer such a service.
3. DfT is not suggesting that industry designs a one-size-fits-all solution since the very diverse nature of the recreational boat sector means that one system would fail some parts of that sector and cause it to rapidly fall into disrepute. This is true, at least in part, for the current service offered by the MCA.

To that end, other business entities may also identify commercial, environmental or safety benefits in providing a disposal service – such as local authorities, waste management companies, marine agencies, flare manufacturers, ordnance companies, or anyone else who is prepared to meet (or who already meets) the legal requirements.

Against this backdrop, DfT has identified actions that a voluntary service provider would need to take in order to gain the trust of recreational owners of pleasure vessels and others, and convince them to use any such service(s) that were on offer.

The following paragraphs provide only a broad overview of what DfT considers to be the 3 key components necessary to facilitate an effective set of options to owners of pleasure vessels. It does not, at this stage, seek to develop them further, beyond inviting you to comment and to provide views or further evidence that can better inform those considerations.

Training

A strong part of providing owners of pleasure vessels with the reassurance that the person(s) who they’re handing their TEPs to has the competence to receive them, store them and arrange for their disposal will be demonstrating that employees are properly trained.

This will be especially relevant to those who are considering offering a disposal service and who are not already licensed to store explosives. There is both a practical and legal need for employees to be trained to a level of competency that ensures that they’re not putting themselves – or others – at risk when handling hazardous materials or substances.

Formulating and delivering appropriate training and putting in place effective quality management control systems will be essential components for any such service to ensure that individuals understand the hazard classifications associated with the handling and transportation of flares, the issues around storing flares of mixed hazard classification and, most importantly of all, how to handle and dispose of damaged flares, and how to identify those flares, that of their age, condition or other factors are potentially too dangerous to be moved and which require a different level of expertise.

For the purposes of this consultation the term ‘hazard classification’ is used generically to reference hazard types set out in the Explosives Regulations 2014, hazard class in the ADR and classification in the CLP Regulation.

DfT would be looking at ways to work with industry and other government agencies to develop an effective framework of recommendations and guidance that allows for the development of an adequate level of training, which can be used by those seeking to offer training packages and that is understandable to those wishing to receive it.

While the MCA has been providing a high-quality level of training for their staff and volunteers at its own designated centres tasked with collecting, handling and storing marine flares, the standard is shaped around the need for a government agency to be an exemplar commensurate with the service it’s offering, but it’s also recognised that such training may not be suitable for the commercial world and that something else can be developed that achieves the same end but without the same potential cost.

For example, such training that could be offered should:

• allow for a good level of understanding of the law, the penalties and offences, as well as the markings on flares, their hazard level and what they mean
• include provisions that assist employees in recognising the hazards and risks associated with flares that have either time-expired or which are damaged, or without their original packaging
• make it clear how flares should be properly stored and prepared if they’re to be transported by road or sea for disposal
• allow employees to be certified to show that they have reached a desired level of competence

Training could also be provided as modules in the classroom, or as distance learning. This would allow such service providers the possibility of demonstrating, through an agreed (but possibly optional) certification process, that they have made every effort, through training and other processes, to comply with the obligations for both employers and employees under the Health and Safety at Work Act 1974 (Part I, Section 2: Health, Safety and Welfare in Connection with Work, and Control of Dangerous Substances).

Although the act does not describe specific training content in relation to the handling, storage and transportation of marine flares, or that such training needs to be approved or accredited by any recognised accreditation service, it may be helpful if the HSE, Vehicle Certification Agency (VCA) and MCA were given the opportunity, if they so wished, to evaluate (or at least have sight of) the content of such training packages in respect of their suitability to deliver clearly identified outcomes, against which individual trainees can be certified as meeting an expected proficiency and competence. However, this aspect would have to be further explored and no commitment is being made at this stage.

Such training ought to be made available to those wishing to consider offering a disposal service. The cost, duration or methodology of such training should be determined by individual training providers.

Competence, standards and compliance

Although training remains a crucial element in establishing the competency of a marine flare disposal service, there are other considerations that would need to be in place for any service provider to meet their legal obligations. Commercial outlets that sell marine flares will already be licensed to store explosives. Such licences are issued by local authorities, the police or HSE.

However, they may not hold a licence that allows them to store or dispose of flares that are time-expired, damaged or no longer needed. In such cases, if the outlet wishes to offer a disposal service then any existing licence would need to be amended to reflect the new additional responsibilities (such as quantities and the types of flares they intend to store, and any elements around mixed storage of flares of different hazard classifications).

The cost for licences will vary, depending on the period of validity and the range of classifications for which conformity must be achieved. However, the costs are expected to be in the region £200 to £500 for up to 5 years, also dependent on a number of factors. Section 13 of the Explosives Regulations 2014 contains further information in relation to licensing and authorisations.

Other issues that need to be considered relate to having in situ the appropriate storage facilities that comply with the legislation concerning the quantities of flares that can be stored at any one time, and the safety issues associated with mixing together flares of different hazard classifications, or of different types.

Products are already available on the market that allow different types of flares to be safely packaged and stored. All such storage facilities – be they permanent fixtures at a specific site, or boxes used for the transportation of time-expired or damaged flares – must meet minimum standards. However, the Explosives Regulations 2014 are goal-setting and they do not specify standards for the construction of facilities used for the storage of explosives.

VCA is the UK competent national authority for packaging. HSE is the UK competent authority for the transport of Class 1 goods. This means that in order to transport an explosive by road a person must obtain a Competent Authority Document (CAD). The CAD will specify the hazard division assigned to the explosives and include details of the packaging. A CAD may be obtained from any contracting party to ADR, and so does not necessarily have to have been issued by HSE (with input from VCA) to enable transport by road.

The recommendations of the UN Model Regulations are applicable to carriage of dangerous goods by sea and have been transposed into the IMDG for transport of time-expired flares by sea (and for the purposes of this consultation, this means transport from the Isle of Wight, Scottish Isles and the Scilly Isles).

Communication and engagement

It’s not just owners of pleasure vessels who will need a trustworthy and reliable route to have their flares disposed of. It’s also likely that flares may need to be disposed of far from a boat or even a harbour or marina and, therefore, any communication strategy must be as wide-ranging as possible. Its success will depend on all those involved in the lifecycle of flares being prepared to be proactive to ensure that the key messages reach those that need to know.

Individuals that are seeking guidance and information about flare disposal should be able to access the right information they need quickly and find up-to-date guidance about those who can offer solutions to avoid flares being abandoned by irresponsible individuals. Such engagement ought to include those who do not necessarily intend to offer a disposal service themselves, but who could instead act as a source of information – waste management operators of landfill sites, for instance, or the emergency services or local authorities.

The means of communicating any message to owners of pleasure vessels and others could be through written material, such as leaflets, articles in trade and sector magazines, or through social media with links to specific sites where further information can be found to help owners of pleasure vessels.

It could also be through regular engagement within the sector at trade fairs, marine and boating exhibitions and shows, or through any other appropriate channels to make sure, as far as possible, that recreational owners of pleasure vessels and others – even if they own a very small boat, or not one at all, and do not belong to a club or any other association – can be reached and informed of the options open to them. Such information should provide live links that explain how and where flares can be disposed of and issues that individuals should consider (such as handling or transporting damaged flares).

DfT is considering whether it could help to achieve this, perhaps through a dedicated helpdesk, accessible by email, where individuals can find out where and how they can dispose of their flares, there would also be information on government social media and DfT’s website, and this could include links to the MCA, the RNLI, the VCA and the HSE.

To that end, it would be interesting to hear through this consultation what approach is favoured or preferred that would provide recreational boat owners (and others with flares) with current and reliable information to help them dispose of them.

However, all of this only works provided the messaging is clear and that the recommended routes or options behind the messaging exist, are reliable, and are easily accessible to owners of pleasure vessels and others.

In the longer term, regular communication and engagement between the key actors would be beneficial to ensure that the messaging remained online and consistent and that the possibility of mixed or conflicting messages is properly managed. It could also be useful to share technical information about flares, packaging, storage and transportation, should there be changes to the legislation.