Establishments that were subject to COMAH 1999 and those organisations assessing whether COMAH 2015 may apply will need to use the Classification, Labelling and Packaging Regulations (CLP). The CLP Regulations are based on the Global Harmonized System (GHS), which was established by the UN to keep the same classification and labelling across all member countries. In the EU, the GHS has been implemented the Classification, Labelling, and Packaging Regulations (CLP).
Effect of CLP Regulations on COMAH 2015
The classification(s) given to substances by the CLP Regulations are used to determine whether a substance is a ‘dangerous substance’ under COMAH. The meaning of a “dangerous substance” is given in Regulation 2(1). Subject to the exclusions set out in Regulation 3(2)(b) and (c), it is a substance or mixture listed in column 1 of Part 2 of Schedule 1, or in a category listed in column 1 of Part 1 of Schedule 1.
Like COMAH 1999, the application of COMAH 2015 is based on qualifying quantities of dangerous substances. These are set out in Schedule 1 (parts 1 and 2). Schedule 1 of COMAH 1999 has been revised in that:
The qualifying quantities are also relevant in considering whether the Regulations apply in particular where. There are a number of rules associated with Schedule 1 which need to be applied, after having considered their applicability. For example, the addition rule which (is often termed the aggregation rule) is provided by Rule 4. This rule may need to be applied where, for example, where there may be a number of different dangerous substances but no one dangerous substance itself exceeds the threshold quantity. (See further detail below).
COMAH applies at 2 tiers – upper and lower tiers – depending on inventory of certain ‘dangerous substances’. Regulation 2(1) provides the meanings for lower tier and upper tier establishments in relation to these inventories. In summary:
COMAH applies at a ‘lower tier establishment’ where a dangerous substance is present in a quantity equal to or in excess of the quantity listed in the entry for that substance in column 2 of Part 1 or in column 2 of Part 2 of Schedule 1, but less than that listed in the entry for that substance in column 3 of Part 1 or in column 3 of Part 2 of Schedule 1, where applicable using the rule laid down in note 4 of Part 3 of that Schedule.
COMAH applies at an ‘upper tier establishment’ where a dangerous substance is present in a quantity equal to or in excess of the quantity listed in the entry for that substance in column 3 of Part 1 or in column 3 of Part 2 of Schedule 1, where applicable using the rule laid down in note 4 of Part 3 of that Schedule.
Safety Data Sheets
Up to date ‘Safety Data Sheets’ (SDS) for substances and mixtures should now identify the CLP classifications.
There is a list of chemical classifications and their uses on the European Chemicals Agency (ECHA) website. This may be useful for reference or verification, but correctly updated and accurate REACH CLP based safety data sheets should provide sufficient information to determine COMAH applicability.
The Categories for ‘dangerous substances’ are based on 4 Hazard types:
Addition Rule (Aggregation Rule)
The Note 4 to Schedule 1 (in part 3) requires the quantities of all the dangerous substances present in an establishment to be added together as partial fractions of their threshold quantities. If the total equals or exceeds 1, the Regulations apply. This calculation must be done for comparison with both the lower-tier and upper-tier thresholds
In essence this rule remains the same under COMAH 2015 as COMAH 1999. It needs to be applied three times, but it is now based on CLP categories:
Actual and anticipated presence of dangerous substances and Dangerous substances that may be generated through loss of control
It is likely that the exact quantities of dangerous substances held at an establishment will vary, for all sorts of reasons. The major hazard risk assessment should also have identified where dangerous substances could be generated during a loss of control in process or storage. Operators should consider all types of scenarios, including during process and storage, that it is reasonable to foresee may lead to dangerous substances being generated.
These situations are covered by the Regulations by the inclusion of these circumstances within the definition of 'presence of a dangerous substance' in Regulation 2(1):
“presence of a dangerous substance” means the actual or anticipated presence of a dangerous substance in an establishment, or of a dangerous substance which it is reasonable to foresee may be generated during loss of control of the processes, including storage activities, in any installation within the establishment, in a quantity equal to or in excess of the qualifying quantity listed in the entry for that substance in column 2 of Part 1 or in column 2 of Part 2 of Schedule 1, and “where a dangerous substance is present” is to be construed accordingly.
The following example duties are those which are likely to be of key importance to lower tier establishments, and possibly for those organisations that may need to consider whether the COMAH regulations may now bring them into COMAH.
The ‘general duty’ under COMAH applies to all operators. Regulation 4 of COMAH 1999 now becomes Regulation 5(1) of COMAH 2015 – but with a slight modification.
Thus, COMAH ’99 Regulation 4, which stated that, “Every operator shall take all measures necessary to prevent major accidents and limit their consequences to persons and the environment”, is superseded by COMAH ’15 Regulation 5(1), which now requires that, “Every operator must take all measures necessary to prevent major accidents and to limit their consequences for human health and the environment”.
COMAH 2015 introduces additional parts to Regulation 5 of COMAH 2015. These parts make specific explicit requirements in connection with the ‘general duty’:
This general duty effectively underpins the COMAH regime requiring operators to take all necessary measures, and be able to demonstrate that this is done: the other COMAH duties all relate back to this principal duty in some way.
The following information is a summary of the specific requirements that COMAH 2015 places on lower tier operators. Full guidance may be found inthe publication L111 - 'A guide to the Control of Major Accident Hazards Regulations (COMAH) 2015'.
All Operators need to make basic information about their establishment permanently and electronically available and kept up to date. This is a new requirement and replaces the ‘public register’ that used to be kept by the CA. This information will be input through an IT system made available by the Competent Authority. Operators can input the information by selection from a pre-populated menu (it is menu driven to address security concerns). The public will then be able to search through this information.
The information requirements include:
Further Information - https://www.hse.gov.uk/comah/submitting-public-information.htm
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Page revision date - 21 August 2015
Where a COMAH lower tier site has been identified as being in a ‘domino group’ by the Competent Authority [Regulation 24], the Operator is required to communicate and co-operate with the operators of the other establishments within the same group and with the neighbouring non-COMAH sites for putting in place arrangements for the exchange of suitable information with each other so as to enable them to take into account the nature and extent of the major accident hazards in the case of:
This duty is in addition to information for the public (see below).
The MAPP duties continue to apply to all COMAH establishments.
All Operators will need to review their MAPP to update or check that it is compliant with the requirements of COMAH 2015. For example, COMAH 2015 introduces a new MAPP requirement to a ‘commitment towards continuously improving the control of major accident hazards’. This is not a new concept – but it is now an explicit MAPP requirement. The dates by which time the review needs to be carried out depend on whether the establishment is ‘existing’, ‘other’ or ‘new’.
An operator must review the MAPP in the event of specified changes such as a significant increase or decrease in the quantity of dangerous substances notified or a significant change in the nature or physical form of the dangerous substances or the processes using the substances which could have significant consequences in terms of major accident hazards, and in any event no later than five years after the date on which the policy was last reviewed.
A major accident prevention policy must:
COMAH 2015 makes a number of notification requirements. Examples include the following:
Existing Establishment [Definition in Regulation 2(2) and Notification requirements in Regulation 6(4)]
Every ‘existing establishment’ must re-notify by 1 June 2016. The re-notification process requires the use of (and reference to) the CLP categorisation of dangerous substances at the establishment. The re-notification needs to be made to the Competent Authority (CA).
Other Establishment [definition in 2(1) and Notification requirements in Regulation 6(5)]
For those establishments that fall within the definition of ‘other establishments’ (ie those that have become a COMAH establishment due to a classification change under CLP), the notification will need to be made within 1 year from COMAH 2015 applying to them, beginning on the date on which the establishment, or site of operation, first becomes an ‘other establishment’.
New Establishment [Definition in 2(1) and Notification requirements in Regulation 6(1) and 6(2)]
The definition of ‘new establishment’ under COMAH 2015 includes:
The guidance to Regulation 2(4) (given in L111) indicates that the start (or commencement) of operation for a ‘new establishment’ is where:
Significant Changes [For further information see Regulation 6(6)]
All Operators must also notify the Competent Authority (CA) in advance of significant changes to the site.
Such changes include:
Notifications - Information to be included in a Notification [Regulation 6(1)]