By the time you are reading this, new regulations concerning the type of companies that must provide information to the authorities about the chemicals they hold will already be in place.
As of 1 June, the Control of Major Accident Hazards (COMAH) Regulations 2015 replaced the previous COMAH legislation, widening the net of companies likely to be affected by the rules.
COMAH aims to prevent and mitigate the effects of those major accidents involving dangerous substances such as chlorine, liquefied petroleum gas, explosives and arsenic pentoxide that can cause serious damage and harm to people and the environment.
Many companies - particularly warehousing, logistics and distribution operators - could find that they suddenly fall under COMAH legislation
Cedrec senior legal author Neil Howe
The COMAH regulations are enforced by a body called the COMAH Competent Authority, which comprises: the Health and Safety Executive (HSE) and Environment Agency (EA) in England and Wales, and the HSE and Scottish Environment Protection Agency (SEPA) in Scotland.
Operators of sites that hold larger quantities of dangerous substances (‘top tier’ sites) are subject to more onerous requirements than those of ‘lower tier’ sites.
Prior to the new regulations coming into force, HSE data showed that there were 550 lower tier sites across the UK operated by 261 companies, and 343 top tier sites operated by 204 companies.
The top tier sites are dominated by major chemicals and oil & gas facilities, while lower tier sites are more varied: they range from water treatment plants and pharmaceutical facilities all the way to turkey farms and distilleries.
This variation is likely to be even greater under the new COMAH regulations introduced this month, which implement the EU’s Seveso III Directive. One of the key drivers for Seveso III was the European Regulation on classification, labelling and packaging of substances and mixtures (CLP) coming fully into force on 1 June (see box below).
CLP has ushered in changes in the types and quantities of substances covered by COMAH.
This is likely to mean that companies further down the supply chain become caught up in the COMAH regulations, for example storage and distribution companies.
“New additions under COMAH and CLP include pyrophoric liquids and solids and flammable aerosols,” says Neil Howe, senior legal author with online health and safety legislation specialists Cedrec.
“With the latter being a new category, many companies - particularly warehousing, logistics and distribution operators - could find that they suddenly fall under COMAH legislation.”
HFL Consulting principal consultant Ian Walker says that due to the new legislation being far more specific about the types of substances that will fall under COMAH, facilities such as warehouses could find themselves dragged into the regulations for something as innocuous as holding large quantities of bleach.
“Before [the new regulations] the specific materials were not named,” says Walker.
“Tonnages have been increased to try to keep multiple new entrants out of COMAH, but the new regulations could still bring some warehouses in.”
The changes on quantities, as well as a more comprehensive detailing of the substances deemed hazardous, mean that there is also scope for existing COMAH sites to move between the two tiers.
“Those who find themselves reassigned to a higher category tier will need to prepare data and documentation that may not have been necessary before,” says Howe.
“Currently, lower-tier operators need to prepare a MAPP (Major Accident Prevention Policy), which should be provided to the regulator on request in order to comply with COMAH. If they are categorised as upper-tier under the new COMAH regulations, they will have to prepare a safety report at least every five years, but more frequently in the event of any major changes that might compromise the safety of people and the environment.”
In addition to this, owners of both lower tier and top tier COMAH sites must now provide better access to information about risks associated with their activities and provide information on what the public should do in the event of an accident. This data must now be provided electronically, typically on a company’s website.
Indeed, the new COMAH registration process has made the transition to being completely digital, with companies required to register their sites via the HSE website.
However, as Process Engineering went to press at the end of May, there plant equipment & safety feature was still no indication of what this new online registration process would look like, and how long it would take to complete.*
“The only people really au fait with the technology and the way it will be used are the handful of sites assisting the Competent Authority with [the development of] these databases,” says Walker.
“It would have been beneficial to have seen something before the regulations came into force.”
The regulations do allow for a 12-month transition period to allow sites to register with the new database, and Walker says that he hopes enforcing bodies such as the HSE would be “diplomatic” during this period, “rather than going straight in with their enforcement head”.
Whether this happens or not, consultant and former COMAH officer for Cheshire fire and rescue Reuben Bellis says that ignorance is no defence.
“Ignorance is not bliss,” says Bellis. “You can’t turn round and say ‘I didn’t realise’.
There are transitional provisions, you’re not expected to do everything overnight, but [trade bodies] have been telling everybody for the last 18 months that this is coming.”
Indeed, Walker says it is only likely to be those organisations that aren’t members of trade organisations that are likely to be unaware of this month’s changes.
The Chemical Industries Association (CIA) is the trade body representing the largest number of COMAH sites, and CIA head of safety Phil Scott says all of his organisation’s members should be aware, that “ignorance is no defence”, and that he believes inspections at sites will continue over the next year.
“The requirement for operators to maintain safe plant, process and storage has not changed from Seveso II / COMAH 1999,” says Scott.
“Furthermore, existing COMAH sites already have their Intervention Plans from the Competent Authority for 2015, so inspections at sites will simply be ongoing.”
Classification, Labelling and Packaging
A new system for classifying and labelling chemicals comes into force this month, with some substances coming under Control of Major Accident Hazards (COMAH) regulations for the first time.
The Classification, Labelling and Packaging of Substances and Mixtures Regulation 2008 (CLP) established a regulatory framework for the classification and labelling of substances and mixtures in the EU, and began to come into force in 2009.
It has been progressively replacing the EU’s Dangerous Substances and Dangerous Preparations Directives over the last few years and as of 1 June was introduced alongside the new COMAH regulations.
“The CLP regulation requires chemicals to be classified for their hazards and their packaging labelled accordingly,” says Neil Howe, senior legal author with online health and safety legislation specialists Cedrec.
“This involves different labels to those under the outgoing regulatory framework, and a new set of hazard pictograms has been established to advise people handling materials.”
New categories under CLP include Category 1 pyrophoric liquids and solids, and flammable aerosols.
The qualifying quantity is 50 tonnes of pyrophoric liquids or solids for lower-tier establishments and 200 tonnes for upper-tier establishments.
For flammable aerosols Category 1 or 2, containing flammable gases Category 1 or 2, or flammable liquids Category 1, the upper–tier threshold is 500 tonnes (net) and for lower-tier it is 150 tonnes (net). Examples of other substances that will come within scope under the CLP/ Seveso III changes to COMAH include Ethylenediamene, Benzaldehyde, Cyclohexanone, Maleic Anhydride, Methacrylic Acid and Morpholine.
*The HSE has now updated its website with details of how to submit new COMAH notifcations under the 2015 regulations.