The new Control of Major Accident Hazards (COMAH) Regulations 2015 came into force on 1 June 2015, superseding the previous 1999 Regulations. So, what exactly has changed and what do you need to be aware of?
The aim of the regulations remains the same and implements the European Directive Seveso III, to prevent major accidents caused by dangerous substances and to limit their consequences. The key changes are outlined below.
Changes to classification
The first main change relates to a new classification system for dangerous substances following the revocation of the CHIP (Chemicals (Hazard Information and Packaging for Supply)) Regulations 2009. The new regulations reference the European CLP Regulations, which adopt the United Nations’ Globally Harmonised System (GHS) on the classification and labelling of chemicals across European Union countries.
As a result of this, some sites will now become COMAH sites, whilst others may move out of the scope of the Regulations. Business operators therefore should consider their substance inventories and convert it from CHIP to CLP. New additions to the list include pyrophoric liquids and solids and flammable aerosols. Other things to consider are whether any operations take place on site risk aggregating dangerous substances which could take them over the designated threshold, or whether the loss of control of a process could result in specified dangerous substances being released in threshold quantities.
Changes to information available to the public
The second main change relates to the information to be made available to the public. This is as a result of the original Directive being aligned with the UNECE Convention on Access to Information, Public Participation in Decision Making and Access to Justice in Environmental Matters, helpfully known as the Aarhus Convention. The new COMAH Regulations reflect this expectation that the public has a right to know and be involved in matters regarding major hazard sites.
All sites must provide public information about their site and any hazards including its principal dangerous characteristics and the hazard inventory. This must be done electronically, made accessible and kept up to date. Major accident prevention policies and off-site emergency plans are also likely to be required to be made public, with a particular emphasis on how the public is to be warned and how they should behave in the event of a major incident.
Safety Reports will also be more accessible by the public, with a change to the previous direction of the Secretary of State that they should not be disclosed. Each request for disclosure will now be considered under the Environmental Information Regulations 2004. This essentially means that the full report will be provided unless there are major commercial confidentiality or national security issues outweighing the public interest that require it to be redacted. Operators should be aware however, that the public interest constitutes a very low threshold so it is likely that safety reports will regularly be in the public domain.
Operators of sites that were COMAH sites prior to 1 June, 2015 will be subject to transitional arrangements, aimed to bring them up to speed by 1 June, 2016. A new notification of an updated substance inventory should be provided to their Controlling Authority by 1 June, 2016.
Any existing establishments which are re-classified as a different tier will be treated as new establishments. A new Major Accident Prevention Policy (MAPP) and emergency plans for these establishments will need to be submitted to reflect the change.
The HSE has provided detailed guidance to the new COMAH Regulations 2015, which is available to download.
As always, site operators must ensure that up to date, suitable and sufficient arrangements are in place. COMAH is enforced by the Competent Authority and costs are recovered both for carrying out COMAH functions and enforcing COMAH. Even in the absence of an incident, the risk posed by dangerous substances would, if the Competent Authority determined that a site was non-compliant, very probably result in some form of enforcement action and would inevitably also attract charges for any investigation.
If an incident involved environmental offences, it is worth noting that the new Environmental Sentencing Guidelines would apply and that similar Guidelines have been proposed for Health and Safety offences.
If you have any questions, or would like more information about COMAH Regulations, please contact one of our specialists below.
Author: Martha NewellThis information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.