Changes to COMAH arising from CHIP 2008

Purpose

This LAC alerts inspectors to changes to the Control of Major Accident Hazards Regulations 1999, as amended (COMAH) arising from the Chemicals (Hazard Information and Packaging for Supply) (Amendment) Regulations 2008 (CHIP 2008), which have the potential to bring sites storing preparations containing relatively low concentrations of strong biocides (including large retail and wholesale warehouses) within scope of COMAH for the first time.

Guidance is also provided on a change to the enforcement provisions in Regulation 20 of COMAH which has the effect of enabling HSE and local authorities to agree which body should enforce the Health and Safety at Work etc. Act 1974 (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.

Background

The Chemicals (Hazard Information and Packaging for Supply) (Amendment) Regulations 2008 came into force on 1 October 2008. The regulations implement into national legislation European Commission Directive 2006/8/EC, commonly known as the second Adaptation to Technical Progress of the Dangerous Preparations Directive (the 2nd ATP).

The changes do not affect the main legal duties but do adjust:

• the rules and procedures for classifying and labelling a chemical preparation containing carcinogens, mutagens and substances toxic for reproduction;
• the generic concentration limits to be used for the evaluation of the hazards for the aquatic environment;
• the classification and labelling requirements for preparations containing ozone depleting substances;
• the specified warning phrases on labels for certain preparations to make them clearer and more consistent.

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.

Inspectors need to be aware that one of the changes in CHIP 2008, namely a lowering of the generic concentration limits used to evaluate hazards to the aquatic environment, has the potential to increase the number of preparations classified as ‘dangerous for the environment’. The effect 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, detergents and pesticides. As a consequence, some premises storing significant quantities of these preparations, such as very large retail and wholesale warehouses, could be brought within scope of COMAH (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.

Enforcement provisions in Regulation 20 of COMAH

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.

To ensure that enforcement of the provisions of HSWA remains with the authority most familiar with the sector, regulation 20(6) of COMAH has been amended with effect from 1 October 2008, such that the transfer of HSWA 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:

• at container depots where the main activity is the storage of goods in transit to or from dock premises, an airport or railway;
• where the main activity is the sale or storage of dangerous substances or preparations for wholesale distribution;
• where the main activity is the sale or storage of water or sewage or their by-products or natural or town gas.

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.

Action by Inspectors

In deciding whether a transfer of HSWA etc. enforcement is appropriate inspectors 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, inspectors would need to rely on regulation 4 of COMAH, which requires operators to “take all necessary measures to prevent 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:

• other activities carried out at the site and whether these may affect activities that are part of the COMAH operation;
• other substances present and whether they may affect the major accident potential of the establishment;
• how inspection of the non-COMAH elements of the establishment would be accommodated within HSE’s intervention programme;
• the fact that the major hazard risk at the sites in question is likely to be environmental and the environment agencies would lead CA work;
• whether there would be any benefit in HSE taking over general HSWA enforcement from the local authority.

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Annex 1: Amendment to regulation 20(6) of COMAH introduced by CHIP 2008 (from 1 October 2008)

“(6)  Not withstanding the Health and Safety (Enforcing Authority) Regulations 1998, 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, in so far 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:

• at container depots where the main activity is the storage of goods in the course of transit to or from dock premises, an airport or a railway;
• where the main activity is the sale or storage for wholesale distribution of any substance or preparation dangerous for supply;
• or where the main activity is the sale or storage of water or sewage or their by-products or natural or town gas.

(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.”

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