Health and Safety
Executive / Commission
Local authority circulars
To: Health and Safety Enforcing Authorities
For the attention of: Local Authority Health and Safety Enforcement Managers, Health and Safety Regulators and others
This circular gives advice to local authority enforcement officers
This SPC provides guidance for inspectors on a change to the enforcement provisions in regulation 20 of COMAH. From 1 October 2008 HSE and local authorities will be able to agree which body should enforce the Health and Safety at Work etc. Act (HSWA) and relevant statutory provisions at establishments that become subject to COMAH where the main activity is the sale or storage of goods for retail or wholesale distribution. Competent authority (CA) arrangements for enforcing COMAH at such sites are unchanged.
The COMAH Regulations refer to CHIP to determine categories of dangerous substances and therefore changes to the way substances and preparations are classified in CHIP can affect the scope of COMAH.
CHIP 2008 implement the 2nd ATP (Adaptation to Technical Progress) to the EC Dangerous Preparations Directive. One of the changes in CHIP 2008 is a lowering of the generic concentration limits used to evaluate hazards to the environment. This potentially increases the number of preparations classified as ‘Dangerous for the Environment’ which is a relevant COMAH classification.
The intention is to classify products containing small quantities of powerful biocides that are typically present at concentrations around 0.1 – 0.5% in water-based products such as emulsion paints, and at higher concentrations (between 0.5% and 5%) in products such as anti-fungal paints, wood preservatives and pesticides. As a result, some warehousing/retail sites could potentially come within the scope of COMAH if they have sufficient quantities of products containing these preparations (probably through applying the aggregation rule in Schedule 1 Part 3).
The industry envisages that through a combination of managing stock levels and, where possible, reformulation of products, they will avoid reaching COMAH thresholds (currently 100/200te for R50/53 and 200/500te for R51/53). However, although unlikely, it is feasible that a very small number of LA-enforced warehouses or DIY/retail stores could become COMAH sites.
Previously, if a local authority-enforced site became subject to COMAH, the CA would enforce COMAH and HSE would take over enforcement responsibility from the LA for the HSWA and other relevant statutory provisions (regulation 20(6)). This reflected an assumption that establishments coming into COMAH were likely to be industrial rather than retail in nature, and recognised the relevant expertise of HSE and LAs to enforce HSWA legislation in their respective sectors.
From 1 October 2008 regulation 20(6) of COMAH is modified and additional paragraphs added so that the transfer of HWSA etc. enforcement to HSE ceases to be automatic at establishments where the main activity is the sale or storage of goods for retail or wholesale distribution except:
This gives HSE and local authorities flexibility in deciding how the HSWA etc should be enforced at these sites. Establishments must be considered on a case-by-case basis, and any transfer must be agreed between HSE and the relevant local authority. The full text of the amendment is in the annex below.
In deciding whether a transfer of HSWA etc enforcement is appropriate enforcement officers should note that transferring an establishment to the local authority would preclude HSE (as part of the CA) taking any enforcement action under HSWA alongside or instead of action under COMAH. Instead, enforcement officers would need to rely on regulation 4 of COMAH, which requires operators to “take all necessary measures major accidents and limit their consequences to persons and the environment”, which is broadly equivalent to Sections 2 and 3 of HSWA and requires the same standard of care. Premises should not be transferred to the local authority if there is the possibility that reliance on regulation 4 alone would be insufficient.
Inspectors should also take account of:
"(6) Notwithstanding the Health and Safety (Enforcing Authority) Regulations 1998(11), the Executive shall, for the purposes of the 1974 Act, be the enforcing authority for the relevant statutory provisions at an establishment to which any of these Regulations apply, unless a transfer of responsibility is made under paragraph 7 below.
(7) The responsibility, for the purposes of the 1974 Act, for enforcing any of the relevant statutory provisions at any establishment to which any of these Regulations apply may be transferred from the Executive to the local authority, insofar as the main activity carried on at that establishment is the sale of goods, or the storage of goods for retail or wholesale distribution, except–
(8) A transfer may be made only by agreement between the Executive and the local authority.
(9) Where a transfer has been made, the local authority shall cause notice of the transfer to be given to persons affected by it."