New measures imposing greater obligations on firms facing industrial accidents are now in force - and FMs must know their responsibilities, says Rhian Gilligan.
16 July 2015 | By Rhian Gilligan
The latest incarnation of the the Control of Major Accident Hazards (COMAH) regulations was introduced on 1 June.
Based on the Seveso III Directive, the new regime will see UK law harmonise with the globally agreed approach to labelling chemicals. The business of regulating such high-hazard industries is detailed and onerous. This article examines the key changes and identifies the steps you need to take now to secure compliance.
The origins of COMAH explain the necessity for tight controls.
The directives followed a disaster in the Italian town of Seveso in 1976, when around six tonnes of the potent carcinogen TCDD (often wrongly shortened to dioxin) were accidentally released into the atmosphere. There were no human fatalities, but the effects on the locality were enormous.
Some 80,000 animals were slaughtered to stop TCDD entering the food chain, 500 people were treated for skin lesions, 200 more presented with chloracne and it was thought that there was increased incidence of diabetes and certain cancers among local people.
In the aftermath Europe examined its approach to industrial regulation and the first Seveso Directive was introduced to provide a European Community-wide framework to regulate major accident hazards.
The directive was introduced through the COMAH regime in the UK to manage the high hazard industries by:
- Land use planning to control the siting of new establishments handling dangerous substances; and
- Health and safety measures to regulate the day-to-day conduct of the sector.
COMAH is regulated by the Competent Authority (CA) - being the Health and Safety Executive and the Environment Agency, Scottish Environmental Protection Agency or Natural Resources Wales acting together.
The COMAH 2015 regime applies to any business that manufactures, stores or uses dangerous substances in bulk quantities. A 'dangerous substance' is defined by Schedule 1 to COMAH 2015, which also identifies the threshold amounts in which those substances must be present to trigger a COMAH notification.
Why the change?
The principal motivation for the introduction of Seveso III (and therefore COMAH 2015) is the need to align Europe with the United Nations' Global Harmonisation Standards (GHS). GHS is designed to bring worldwide consistency to the way the supply chain and end-users classify, label and package chemicals. In Europe, GHS is being introduced by the Classification, Labelling and Packaging Regulations 2015.
What should you do?
FMs of sites that produce, supply or use chemicals must carefully review Schedule 1. There have been substance classification changes meaning that some sites will become part of the COMAH regime for the first time, while others will drop out altogether, and some will simply switch tiers. Whichever scenario applies, you must notify the CA, even if only to confirm that the site is no longer subject to the requirements of COMAH. It is expected that the inclusion of flammable aerosols within Schedule 1 will see some warehousing, logistics and distribution operations becoming COMAH sites for the first time.
Once satisfied that COMAH bites, you then need to consider the regulations as a whole to ensure that the site is discharging its obligations as, again, there have been some changes. In particular:
- If the site is transitioning from lower to upper tier, you must satisfy the additional responsibilities imposed upon those posing the greatest hazard. This includes the preparation of a safety report, without which the site cannot operate.
- If the site is caught by COMAH for the first time, you must prepare a major accident prevention policy (known as a MAPP), which identifies the organisation's commitment to compliance with the legislation, outlining in broad terms how this will be achieved.
- Another task for the FM of a new COMAH site is to raise with the client the thorny issue of the fees owing to the CA for the time spent regulating the new site.
- All upper tier sites will need to review their safety reports to ensure they are in line with CLP and any necessary amendments will need to be made.
- Most COMAH sites will also need to review their emergency safety plans to ensure they comply, particularly in relation to the information to be disclosed to the public in the event of an incident.
Other changes
Of the remaining changes to COMAH, there are new information requirements placed on the CA. Upon application by a member of the public, the CA may disclose the safety reports of upper tier sites provided no commercially sensitive information is included in the disclosure. It would be prudent for FMs to flag this with clients.
Failure to comply with COMAH's requirements is a crime punishable - in the case of an organisation - by an unlimited fine. The CA also has the power to serve an Improvement Notice if the inspector believes there has been a contravention. This becomes publicly available information once posted on the HSE's website.
Rhian Gilligan is legal director at Clyde & Co LLP