1. This document gives guidance on the enforcement of pesticide legislation and the application of the Enforcement Management Model (EMM) to potential offences involving pesticides.
2. To provide HSE/LA staff with a framework to assist in making enforcement decisions in relation to potential offences involving pesticides.
3. HSE/LA staff should follow the guidance in this document when deciding on enforcement action in relation to offences involving pesticides.
4. The existing regulatory framework for pesticides in Great Britain (GB) is being replaced by two harmonised approval systems which separately address plant protection products (most agricultural pesticides) and biocides (including all non-agricultural pesticides and certain products not previously covered e.g. disinfectants).
5. The primary legislation is Regulation EC 1107/2009 of the European Parliament and of the Council. Although directly applicable in the United Kingdom (UK) from 14 June 2011, it has been supplemented in GB by the Plant Protection Products Regulations 2011 (PPPR 2011), which set out powers of enforcement, offences and penalties.
6. Directive 2009/128/EC of the European Parliament and Council for the sustainable use of pesticides (the SUD) deals with broader use related issues, such as certification requirements for users, but will not be transposed in national law until March 2012. In the meantime the pre-existing national legislation on these issues, the Plant Protection Products (Basic Conditions) Regulations 1997 (PPP(BC)R), remains in place. For the time being, the PPPR 2011 and the PPP(BC)R should be considered together when dealing with offences relating to plant protection products.
7. The aim of plant protection product legislation is to protect plants against harmful organisms, including weeds, and to improve agricultural production whilst at the same time ensuring a high level of protection for human and animal health and the environment. The legislation requires plant protection products to be approved authorised or permitted (“approved”). Further requirements relate to their advertisement, sale, supply, storage and use.
8. The primary legislation is Directive 98/8/EC of the European Parliament and of the Council implemented in GB by the Biocidal Products Regulations 2001 (BPR). However, not all biocides approved under previous legislation are regulated under BPR.
9. Therefore, both the Food and Environment Protection Act 1985 (FEPA) and the Control of Pesticides Regulations 1986 (as amended) (COPR) will continue to apply to biocides that are not currently regulated under BPR.
10. Inspectors should be aware that products will increasingly be approved under the new regimes and should take care to apply the relevant legislation in each case. Inspectors should check the product’s approval status before deciding which legislation applies and in cases of doubt should consult Chemicals Regulation Directorate (CRD) email pesticides@hse.gsi.gov.uk.
11. The Health and Safety at Work Act 1974 (HSWA), the Management of Health and Safety at Work Regulations 1999 (MHSWR), and in particular the Control of Substances Hazardous to Health Regulations 2002 (as amended) (COSHH) may also apply in relation to the risks to human health from the storage and use of pesticides. Inspectors should select the most appropriate legislation when considering enforcement action.
12. HSE carries out enforcement functions under this legislation in England and Wales. These functions are conferred on HSE by way of Agency Agreements with the Secretary of State and with the Welsh Ministers. HSE carries out enforcement functions under the Control of Pesticides Regulations 1986, the Plant Protection Products (Basic Conditions) Regulations 1997, the Plant Protection Product Regulations 2005 and the Plant Protection Products Regulations 2011.
13. Pesticides regulations are not relevant statutory provisions under HSWA. However, where HSE is the enforcing authority for health and safety legislation by virtue of regulation 3 of the Health and Safety (Enforcing Authority) Regulations 1998, it will also enforce pesticides legislation. Similarly where the local authority is the enforcing authority for health and safety legislation under the 1998 regulations, they will also enforce pesticides legislation. Despite this limitation, HSE does have enforcement functions in or in relation to non-domestic premises where the main activity is the sale, or the storage of goods for retail or wholesale distribution.
14. HSE/LAs do not have enforcement responsibility for activity relating to a person in the course of an undertaking for which the Office of Rail Regulation is made the enforcing authority by regulation 3(1) of the Health and Safety (Enforcing Authority for Railways and other Guided Transport Systems) Regulations 2006 (read together with any agreement made pursuant to section 2 of, and paragraph 7 of Schedule 3 to, the Railways Act 2005).
15. The Agency Agreements do not confer functions in relation to enforcement in Scotland or Northern Ireland.
16. For biocides that continue to be authorised under COPR similar arrangements apply. For biocides that require authorisation under BPR, enforcement powers are exercisable as if the regulations were health and safety regulations under HSWA. Enforcement responsibilities are also allocated to HSE other than where products are placed on the market through a retail outlet, and where use is not related to a work activity e.g. by members of the public.
17. Pesticides legislation is intended to protect the health of human beings, creatures and plants and to safeguard the environment. This means that this is one area of work where HSE has a direct responsibility for dealing with risks to the environment.
18. A number of other agencies are authorised to enforce pesticides legislation, including in particular the local authorities, Natural England and, in Scotland, the Scottish Government Rural Affairs, Environment and Services Directorates.
19. Any complaints relating to the storage or use of pesticides in premises for which the local authority is the enforcing authority should be referred to either the Trading Standards or the Environmental Health Department of the relevant authority.
20. Within HSE, Chemicals Regulation Directorate (CRD) manages the approvals regime for plant protection products and is responsible for managing enforcement cases that arise from complaints about:
FOD’s National Pesticides Enforcement Team (NPET) may be involved in any subsequent investigation/follow up.
Complainants should be referred to the CRD Information Service via email pesticides@hse.gsi.gov.uk. CRD will respond to calls from all parts of the UK.
21. CRD is also responsible for coordinating the investigation of all cases of alleged poisoning of wildlife under the Wildlife Incident Investigation Scheme (WIIS) including cases that arise from the approved use, misuse or abuse of pesticides. The scheme is not restricted to wild animals and birds but also covers bees, livestock and domestic animals. The Regulatory Improvement and Specialist Services Team in Natural England and, in some cases FOD’s NPET will assist CRD with these investigations. All suspected cases of illegal poisoning should be reported to Natural England (Tel No: 0800 321 600). Similar schemes are operated in Scotland, Wales and Northern Ireland but do not involve HSE. All these schemes share the same initial contact number.
22. In practice, the majority of complaints referred to HSE relate to concerns about the storage and use of pesticides on farms or the activities of commercial contractors; usually drift from spraying operations.
23. CRD also manages the approvals regime for biocides. The majority of complaints about advertisement, sale or supply of biocides are referred to local authorities, although HSE will be the enforcing authority in certain cases.
24. The Environment Agency (EA) in England and Wales and the Scottish Environment Protection Agency (SEPA) have no direct responsibilities for enforcing pesticide legislation but do have powers to act under other environmental legislation where damage to the environment has occurred or is likely to occur.
25. The EA or SEPA will deal with all reports of water pollution, including those resulting in the distress or death of fish, irrespective of the cause. The contact number for reporting incidents is 0800 807060. The same number is used by both Agencies. Notifiers should be advised to contact the relevant Agency directly to report their concerns.
26. All incidents resulting in the pollution of watercourses should be referred to the EA but all cases of spraying near to watercourses, irrespective of any damage to aquatic life, should also be investigated by FOD.
27. In all other cases of alleged or potential environmental damage resulting from pesticide storage or use, the notifier should be informed that HSE will liaise with either the EA or SEPA, as appropriate. If the EA or SEPA agrees to take responsibility for the investigation, the notifier should be informed and given the contact details of the investigating office or officer.
28. In cases of doubt, inspectors and complaints officers should consult with their local NPET inspector.
29. Inspectors are authorised to exercise powers under the relevant pesticides legislation and are provided with a certificate of authorisation (e.g. a Warrant) which will set out their powers. HSE authorises Inspectors under Regulation 7 of PPPR 2011, and Section 19 and Schedule 2 of FEPA, as amended, pursuant to its Agency Agreements with the Secretary of State and the Welsh Ministers. The powers vary slightly depending on the legislation being enforced.
All plant protection products, previously authorised under COPR and PPPR 2005 (now revoked) are deemed to be authorised under Regulation EC 1107/2009 by a transitional measure in PPPR 2011. The relevant legislation to be applied for enforcement in relation to offences committed after the PPPR 2011 is in force will be that in the PPPR 2011 Schedule 1, and PPP(BC)R 1997 (which in turn refers to FEPA).
Authorised persons have the powers in FEPA and PPPR 2011 to:
30. The power to seize or dispose of pesticides or anything treated with a pesticide set out in regulation 7 of COPR, regulation 8 of the PPP(BC)R and regulation 20 of the PPPR 2011 has also been delegated to HSE but not to warranted Inspectors. Appendix 1 provides details on the protocol FOD inspectors must follow before taking any steps to seize pesticides. The power set out in Schedule 1 of PPPR 2011 is exercisable by persons appointed under regulation 7 of those Regulations.
31. PPPR 2011 provides authorised persons with the powers to use reasonable force and seize computer and associated equipment. While both these powers are contained within the legislation they are not currently exercised by HSE inspectors.
32. Most offences under PPPR/FEPA are triable either way. Offences in PPPR 2011 that are only triable summarily are:
Prosecution is initiated and pursued in the same way as under HSWA. However for offences liable to summary conviction only, inspectors should ensure that proceedings are brought within six months of the date of the alleged offence.
33. Inspectors do not have the right of audience to present FEPA cases in the Magistrates Courts so Solicitor Agents should be appointed to conduct proceedings. Under PPPR 2011 appointed persons do have the right of audience in Magistrates Courts in England and Wales.
34. There are significant differences to Inspector’s powers under s20 HSWA and pesticides legislation. Inspectors should familiarise themselves with the legislation before taking action. Where there is any doubt, they should consult the Information Section at CRD or the Sector.
35. Unlike under health and safety legislation, there is only one type of Enforcement Notice under PPPR 2011 which is issued under Para 8 of Schedule 1.
36. Likewise, there is only one type of Enforcement Notice under FEPA (form FEPA 23), which is issued under Section 19(5) or (6).
37. Both can be used in the same way as HSWA notices i.e. to immediately prohibit activity, to prohibit activity after a predetermined period or to effect improvement over a defined period. There may be instances where a notice served under the HSWA may be more appropriate.
38. Inspectors should note that ‘improvement type’ Enforcement Notices are not restricted to a 21 day minimum period following service during which there is a right of appeal, as there is no appeal process in PPPR/FEPA. However recipients do have the right to seek a Judicial Review of an inspector’s decisions and actions.
39. Failure to comply with a Notice is an offence under Regulation 21 of PPPR 2011 or paragraph 10(b) of FEPA Schedule 2 and is a summary offence.
40. Pesticides can only be advertised, sold, supplied, stored and used in GB if they have been approved or authorised for these purpose(s). Products may also be approved for other, more specific purposes e.g. research. The process is managed by CRD in respect of products for both agricultural and non-agricultural uses.
41. As part of the approval process, conditions of marketing and use are laid down for every pesticide product and each is given a unique approval number which must be printed on the label. A list of approved agricultural, horticultural and home garden plant protection products can be found on the CRD plant protection website.. Similarly, details of approved non-agricultural products (biocides) can be found on the HSE website or directly by telephoning the Biocides Helpdesk (0151 951 4669).
42. The conditions specified are known as the product’s ‘Conditions of Approval’. These should be printed on the product label in the ‘Important Information Box’ or for COPR approved biocides in the ‘Statutory Conditions of Use’ box. The approval number and further information, including advice on known health risks and control measures should also be printed on the product label.
43. The information in the ‘Important Information Box’ will include:
44. Inspectors should note that pesticide products are now subject to the provisions of the Chemicals (Hazard, Information and Packaging for Supply) Regulations 2002 (CHIP3).
45. In addition to product approval conditions, there are also Consents contained in the Schedules of PPP(BC)R and in COPR. These are general obligations (as opposed to specific requirements imposed by a product’s Approval Notice) which must be complied with by those seeking to sell, supply, store or use any approved product. Failure to comply with any of these conditions is also an offence. Particularly important are the Conditions of Use which require the user to take “all reasonable precautions” and the professional user to be “competent” and to have received “adequate instruction”.
46. Anyone who uses a plant protection product professionally must be trained and in some situations the regulations (COPR Regulation 6(c)(i) and Schedule 3 and PPP(BC)R 1997 Regulation 7(c)(i) and Schedule 3) require that users have a certificate of competence recognised by Ministers or are directly and personally supervised by someone with such a certificate. This requirement applies primarily to those providing a commercial service and who are using professional agricultural products. There are exemptions detailed in the regulations and these are described in the Code of Practice for Using Plant Protection Products (Section 2, pages 22 to 26) which apply to amateur, domestic use and vertebrate control, and in some circumstances to users born before the 31 December 1964. The requirements for certification as set out under PPP(BC)R will continue until March 2012 when the UK Statutory Instrument (SI) implementing the Sustainable Use Directive (SUD) - Directive 2009/128/EEC is due to come into force. Articles in the SUD cover certification and other aspects of ‘proper use’ of pesticides required under Article 55 of Regulation 1107/2009.
47. HSE’s Enforcement Management Model (EMM) is a framework which helps inspectors make enforcement decisions in line with HSE’s Enforcement Policy Statement (EPS). The EPS sets out the principles inspectors should apply when determining what enforcement action to take in response to breaches of health and safety legislation.
48. The original EMM was originally drafted to deal with risks to safety. Application of the EMM to general health issues and specifically to the health risks from chemicals has been further addressed in OC130/5 “EMM General Guidance on Application to Health Risks” and OC273/19 “EMM Application to Chemical Risks.
49. The EMM allows inspectors to be flexible and to consider other factors such as the duty-holder and strategic factors. Factors not covered within the EMM can still be considered and should be recorded in the management review. The ability to override or adapt the EMM is part of its effectiveness. The EMM is a simple two-dimensional linear model designed to aid consistency and so cannot truly capture all the nuances and complexities of discretionary decision-making in all circumstances. It is crucial that inspectors’ discretion is not confined to the boundaries of the model.
50. Inspectors should apply this guidance:
51. Where inspection or investigation highlights problems with both risk-based and compliance/administrative elements or permissioning through the conditions of authorisation of the product, inspectors should decide on action principally in relation to the control of risk. However, all the factors will need to be considered in reaching a final enforcement decision.
52. Given the wide variety of types of pesticide products and their various additional chemical co-formulants (constituents) it is difficult to give generic guidance relating to human health risk.
53. The PPPR/COPR regimes are based on a system of product approval or authorisation. As part of the approval process, applications are subjected to a rigorous evaluation covering a range of matters including risk to operators (users), bystanders (members of the public) and the environment.
54. Given this evaluation, the regimes are predicated on the assumption that an approved product, stored or used in accordance with the specified Conditions of Approval and the general conditions of the Consents (for storage, use or aerial application) applicable to the activity which are set out in the Schedules to PPP(BC)R and COPR should not pose significant risk to the health of human beings, creatures or plants (other than the target species) or to the environment.
55. Whilst the generic risks to human health from a product will have been assessed and guidance on control measures generated by the approvals process, the particular circumstances under which a pesticide is to be used still need to be considered as part of a suitable and sufficient assessment of the risks to health under COSHH. Compliance with the Conditions of Approval and the Consents should not be accepted as proof of adequate control but together with other relevant information such as that contained in Material Safety Data Sheets (MSDS) will inform the COSHH assessment which should address the risk from the specific way(s) in which the product is being handled and used.
56. Inspectors should note that the product label will contain much of the information required to assess the quality of a COSHH assessment. In practice, the approval and the directions for use on the product label are based on an evaluation of the product formulation as a whole and not on individual components.
57. Determination of enforcement action for risks to human health associated with pesticides is the same as for risks from any other substance hazardous to health. The COSHH assessment in conjunction with the advice given in OCs 130/5 and 273/19 will lead to a judgment on the actual risk to health.
58. Generally, the risk to human health from the storage or use of pesticides will be minor. However, in some cases the risk may be significant and in exceptional cases serious.
59. Inspectors should refer to the EMM to assess the risk gap (Table 2.1) and then determine the initial enforcement expectation (Table 5.1) in the usual way.
60. Compliance and Administrative arrangements are those legal requirements which are not in themselves risk based i.e. do not directly result in the control of risk. These arrangements are generally defined by law or supporting approved Codes of Practice. Examples of potential offences of this type include supplying, storing or using an unapproved pesticide, and exceeding the Maximum Residue Level (MRL). European Community (EC) Statutory MRLs are trading standards set under EC Regulation 396/2005 and listed in Annexes to that Regulation. Where these EC MRLs are set everyone involved in the marketing of food or feed within the EU must comply with them. MRLs only apply to commodities once they are placed on the market, i.e. they do not apply to crops in the field. Where a plant protection product active substance is not listed under regulation 396/2005 a default MRL level of 0.01 mg/kg applies.
61. The presence of residues of an active substance of a plant protection product below the MRL, even where that active substance is not approved in the UK is not a breach of the regulations governing MRLs and such commodities may be legally placed on the market, although such residues may evidence illegal use under pesticides regulations. Where an MRL breach is sufficiently serious and the residue in the commodity poses a risk to human health HSE will co-operate with the Department of Heath to ensure affected commodities are removed from the market place. Enforcement powers in relation to MRLs are established in Schedule 1 of the Pesticides (Maximum Residues Levels) Regulations 2008 SI No 2570 and inspectors may be warranted under Regulation 8(2) to exercise these powers which are similar to those contained in PPPR 2011.
62. Professional users of plant protection products are required under Article 67 of Regulation 1107/2009 to keep records, for at least 3 years, of the plant protection products they use. The records must as a minimum contain the name of the plant protection product, the time and the dose of application, the area and the crop where the plant protection product was used. Failure to keep such records is an offence under PPPR 2011 Regulation 23.
63. In practice these issues should be handled in exactly the same way under pesticide legislation as under other health and safety law. Inspectors should refer for guidance to the EMM Step 4 and, in particular, to Table 4 ‘Compliance and Administrative Arrangements’ and Table 5.2 ‘Compliance with Administrative Arrangements: Initial Enforcement Expectation’ to determine the initial enforcement expectation.
64. In the case of illegal marketing of pesticides by those who hold an authorisation it would be appropriate to apply the Permissioning section of the EMM.
65. The defined standard for an activity involving an approved pesticide product is that it should be used in strict accordance with the product’s Conditions of Approval and the appropriate consent. Additionally there is guidance on the storage and use of agricultural and non-agricultural pesticides in the ‘Code of practice for using plant protection products’ published by DEFRA and the advice in HSE’s Approved Code of Practice under COSHH entitled ‘The safe use of pesticides for non-agricultural purposes’.
66. Established and interpretative standards include HSE Guidance Note MS17 ‘Medical aspects of work-related exposures to organophosphates’and:
67. In practice, if duty holders are complying with relevant guidance, the residual risk from the storage and/or use of pesticides should lie within the Nil/Negligible range of the EMM.
68. Generally, inspectors are neither expert nor experienced in environmental toxicology, assessing environmental risk or determining the appropriate enforcement level for environmental protection matters. HSE’s EMM cannot be applied directly and fully to environmental risks because the ‘consequence’ definitions in the EMM are based on the effects on humans.
69. Decisions on environmental issues should therefore be based on the instructions in the EMM for dealing with Compliance and Administrative Arrangements. However, the principles of proportionality to risk and to the extent of any breach that are contained in the EPS and the EMM, are applicable generally to all our enforcement activities, including those in the environmental area.
70. Enforcement decisions may be made at any stage of the investigation but the decision to prosecute will rest with CRD. Enforcement decisions should be based on risk levels and compliance with the benchmark standards (referred to in paragraphs above) with advice on risks to wildlife sought from Natural England and/or CRD. In these cases, it is also appropriate to take into account the intent to cause harm and to classify incidents in terms of the approved use, the misuse or the abuse of pesticides.
71. In the case of spraying pesticides near to watercourses, the initial enforcement action should be determined by assessing the level of compliance with the DEFRA guidance ‘LERAP: Horizontal Boom Sprayers’ and ‘LERAP: Broadcast Air-assisted Sprayers’. These are defined/established standards for the protection of water courses in connection with the application of pesticides to arable crops and orchards/hops respectively. Reference should also be made to the advice in the DEFRA Code of Practice in any case in which water may have been contaminated. However, Inspectors should be aware that some pesticides have specific approval for treating aquatic weeds.
72. Inspectors should first consider duty holder factors that may vary the initial enforcement expectation and then the strategic factors, which may influence the final enforcement conclusion in line with Section 5 of the EMM in order to reach a final enforcement decision.
73. Inspectors should complete Form EMM1 in all cases. For environmental incidents, sections 2 and 3 will not be relevant.
Schedule 1 of PPPR 2011, Regulation 8 PPP(BC)R 1997 and regulation 7 of COPR state that under specified circumstances, authorised persons/Ministers may seize or dispose of a plant protection product or COPR approved biocide and, where it is an illegal import, require it to be removed from GB.
The powers to seize, dispose or remove a pesticide or plant protection product from GB (described above) can be used by HSE inspectors only on a case-by-case basis on specific application to the Executive.
The following procedure for applying for delegation of the powers to seize, dispose of or remove from the UK has been agreed with the HSE Secretariat.
Wherever practicable, the request should be made by a Band 0. It is acknowledged that there may be exceptional circumstances e.g. where time is critical and no Band 0 is available, in which an application from a Band 1 will be considered.
The application should consist of:
Any request for further advice, guidance or help in developing an application should be referred to the Agriculture and Food Sector.
