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:

‘Categories of Substances’ (not 'specifically named substances') under COMAH 1999 becomes ‘Hazard Categories’ (Part 1);
Specifically ‘named dangerous substances’ are given in (Part 2).

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:

Physical hazard, (set out on SDS in the form H2xx)
Health Hazard, (set out on SDS in the form H3xx)
Environmental Hazard, (set out on SDS in the form H4xx)
Other Hazard, (set out on SDS in the form EUHxx)

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:

Health Hazards – H1 to H3 from Part 1, plus any named dangerous substances with this hazard category from Part 2;
Physical Hazards – P1 to P8 from Part 1, plus any named dangerous substances with this hazard category from Part 2;
Environmental Hazards – E1 and E2 from Part 1, plus any named dangerous substances with this hazard category from Part 2.

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 information is a summary of the specific requirements that COMAH 2015 places on lower tier operators. Full guidance may be found in the 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:

the operator activities (in simple terms);

a simple description of the substances and their characteristics;

information about how the public is to be warned and provided with information in the event of a major accident;
the date of the last CA site visit.

Further Information - https://www.hse.gov.uk/comah/submitting-public-information.htm

6. Public Information [Regulation 17]

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:

each operator, in its major accident prevention policy; and safety management system;

informing neighbouring sites of their proximity to a domino group and in appropriate cases to provide suitable information to those sites;

preparing ‘public information’.

This duty is in addition to information for the public (see below).

5. Domino Effects [Regulation 24(7)]

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’:

To demonstrate to the Competent Authority that they have taken all measures necessary;
To provide the Competent Authority with all assistance necessary to perform its functions under these Regulations.

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.

COMAH 2015 – some of the changes that will directly affect COMAH lower tier operators.

4. Major Accident Prevention Policy – ‘MAPP’ [Regulation 7]

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:

an establishment that is constructed or enters into operation on or after 1st June 2015

a site of operation which becomes an establishment to which these Regulations apply on or after 1st June 2015 due to an increase or other change in its inventory of dangerous substances;

a lower tier establishment that becomes an upper tier establishment, or vice versa, on or after that date due to any modification to any of its installations or activities which results in a change in its inventory of dangerous substances;

The guidance to Regulation 2(4) (given in L111) indicates that the start (or commencement) of operation for a ‘new establishment’ is where:

For a new build the first time that dangerous substances are introduced onto the establishment;

When an establishment moves from an upper tier to lower tier or vice versa, the point at which the quantities of dangerous substance change between the thresholds;

For a previously non-COMAH site that is coming into scope of the Regulation, the point at which the quantities of dangerous substances exceed the LT threshold (or upper tier if entering straight into upper tier).

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:

a significant increase or decrease in the quantity of dangerous substances notified;
A change in the nature and/or physical form of the substance(s);
A change in the process(es) using the substance(s);
Modification(s) which could have ;
Permanent closure of the establishment
Any change in the details specified in the Information to be included in a Notification.

Notifications - Information to be included in a Notification [Regulation 6(1)]

the full establishment address;
the registered place of business, with full address;
the name and position of person in charge;
sufficient information to identify the dangerous substances and category of substances involved or likely to be present at the establishment;
the quantity and physical form of the dangerous substance or substances concerned;
the activity or proposed activity of the installation or storage facility;
a description of the immediate environment of the establishment, and factors likely to cause a major accident or to aggravate the consequences thereof including, where available, details of—
‘neighbouring establishments’;
sites that fall outside the scope of these Regulations;
areas and developments that could be the source of or increase the risk or consequences of a major accident and domino effects.

2. Does COMAH 2015 apply? – Inventory assessment Using the Classification, Labelling, and Packaging Regulations (CLP)

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.

1. General Duty of the Operator

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’.

For an ‘existing establishment’, by 1st June 2016;

For an ‘other establishment’, within one year beginning on the date on which the establishment, or site of operation, first becomes an other establishment.

For a ‘new establishment’, within a reasonable period of time prior to construction or operation of the establishment; or a reasonable period of time prior to modifications leading to a change in the inventory of dangerous substances at the establishment.

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:

be designed to ensure a high level of protection of human health and the environment;

be proportionate to the major accident hazards;
set out the operator’s overall aims and principles of action; and
set out the role and responsibility of management, and its commitment towards continuously improving the control of major accident hazards.

3. Notifications

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