Background to regulating chemicals at work
Until the end of 2020, the UK was part of the EU REACH (Registration, Evaluation, Authorisation and Restriction of Chemicals) Regulations which came into force on 1st June 2007. This is managed by the European Chemicals Agency (ECHA) based in Helsinki. See Understanding EU Reach for more information
EU REACH places the burden of proof on companies and to comply with the regulation they have to identify and manage the risks linked to the substances they manufacture and market in the EU and demonstrate how the substance can be safely used and communicate the risk management measures to the users. Any risk that cannot be managed can be restricted for use, but this does not mean that they are safe to use and do not cause any harm. The ETUC (European Trade Union Congress) has representation on the management Board and all the scientific committees of the ECHA. In reality there are still a number of concerns.
Concerns expressed about the quality of the data provided including its intrinsic dangers, uses and/or estimated exposure levels making id impossible to properly identify substances and control them in order to protect workers and the public.
Many safety data sheets are not fit for purpose and although the ECHA called for additional information within a specific period of time the agency does not have any power to take action against those companies who fail to produce it.
The ETUC want the outright withdrawal of the registration number (right to be on the European market) for a poor quality information (held in a dossier) and more proactive compliance checking by the ECHA.
There are an estimated 1,500 substances of very high concern (e.g. carcinogens, mutagens or reprotoxins – CMRs) currently on the EU market and although the Regulations calls for them to be gradually replaced by ones that are less dangerous to human health and the environment, this process happens far too slowly and there is a need to eliminate these chemicals more quickly and to stop their use in manufacturing processes.
Since the UK left the European Union single market on 31st December 2020, UK have created UK REACH – Northern Ireland remains within EU REACH.
Initially the UK Government transposed the EU REACH regulation into UK law and based UK REACH on its aims and principles.
Aims of UK REACH
Aims of UK REACH include to:
· provide a high level of protection of human health and the environment from the use of chemicals
· make the people who place chemicals on the market (manufacturers and importers) responsible for understanding and managing the risks associated with their use
· promote the use of alternative methods for the assessment of the hazardous properties of substances - for example quantitative structure-activity relationships (QSAR) and read across
· covers all sectors manufacturing, importing, distributing or using chemicals as raw materials or finished products (not only the chemical industry)
· applies regardless of your company size
· makes you responsible for the safe use of the substances you place on the market or use
· requires every actor in the supply chain to communicate information on the safe use of chemicals
Some substances are specifically excluded:
· Radioactive substances
· Substances under customs supervision
· The transport of substances
· Non-isolated intermediates
· Some naturally occurring low-hazard substances
Some substances, covered by more specific legislation, have tailored provisions under UK REACH, including:
· Human and veterinary medicines
· Food and foodstuff additives
· Plant protection products and biocides
· Isolated intermediates
· Substances used for research and development
The Health and Safety Executive (HSE) is the Agency for UK REACH and has responsibility for the majority of the regulatory functions under UK REACH. It is supported by the the Department of Environment and Rural Affairs (Defra) Secretary of State and the Scottish and Welsh Ministers, who can request information and propose that HSE undertake various activities including preparing a dossier to identify a substance of very high concern (SVHC) and to prepare a restriction proposal. Defra Secretary of State is responsible for making regulatory decisions and making legislation in UK Parliament to give these decisions legal effect. The decisions are made with the consent of Scottish and Welsh Ministers when the decision relates to a matter of devolved competence of their respective Governments.
The HSE must seek advice of the Environment Agency (EA) on relevant environmental issues and EA must in turn collaborate with, the Scottish Environment Protection Agency (SEPA) and Natural Resources Wales (NRW) to advise the HSE. Although NI Department for Agriculture, Environment and Rural (DAERA)
Briefing: What is the Brexit reality for Health and Safety Law – 8.12.22
The EU Withdrawal Act 2018 came into effect on the 31st December 2020 and converted all EU-derived legislation and case law into national law, effectively ‘freezing’ the law as it stood at this point. There are more than 2,400 pieces of legislation across 300 policy areas and 21 sectors of the economy.
Following Brexit, parliament will now decide which laws it wants to retain, repeal or amend. This may be subject to the provisions of the UK-EU trade deal, the Trade and Cooperation Agreement (TCA) and other trade deals.
When Liz Truss became Prime minister, not only did her Government destroy our economic stability but the Government declared an intention to take an alternative direction and included a ‘sunset’ date, for the 31st December 2023.
By this date all remaining EU derived law will be revoked automatically unless ministers restate or replace the regulations due to expire. (the date may be extended until 2026 for specific pieces of EU law)
Potentially this could rip up workers basic employment rights on:
· Holiday pay
· Agency, part time and fixed-term workers
· Maximum working time for all workers, including HGV, pilots etc
· Equal pay
· Standards of PPE
· Standards of welfare at work
· Food, environment and public health standards
· And many more safety critical and other regulations
The Retained EU Law (Revocation and Reform) Bill was introduced into Parliament on 22 September and had its second reading on 25 October, 2022. Retained EU Law (Revocation and Reform) Bill Stages - Parliamentary Bills - UK Parliament
The UK Government’s REUL dashboard estimates that there are 2,400 pieces of REUL in force, including 570 on the environment, food and rural affairs law, 318 on business, energy and industrial strategy, 137 on health and social care, 35 on digital, culture, media and sport and 16 on education. The list of 55 Health and Safety regulations at risk can be found at:
All these pieces of legislation are important, many should be updated to include the risks from new developments in technology or science for example (since the absurb health and safety legislation constraints on updating or replacing legislation has been in place and changes to regulations have been restricted).
The basis for risk assessment and employers duties to prevent risks to workers mental and physical health is at risk. The important role of safety reps in the workplace is at risk. The basic standards of welfare and ventilation are at risk. PPE which we all know is crucial in stopping infections and reducing exposure to contaminated and toxic air, is at risk. The DSE regulation is at risk. Control of Substances Hazardous to Health regulation is at risk and many more as listed in the RUEL dashboard.
See also the Governments departments breakdown of responsibilities: https://www.gov.uk/government/organisations
And this is on top of the issues about UK REACH:
The HSE has effectively removed any trade union scrutiny of the setting of workplace exposure limits and the only input will be through individual stakeholders. In the recent consultation on extending the REACH submission deadlines out of the 289 responses ,123 of the respondents were from a large business (250 or more employees), 58 from a small or micro business (less than 50 employees), 47 from a medium business (50 to 249 employees), 20 were consultants, 28 were from an industry association, 8 were from other types of organisations and 5 were from NGOs. Not because it was a sensible option but because industry is getting its act together to resist restrictions. DEFRA commented ‘While we would like to see the data submitted in the shorter deadline provided under Option 2, we believe that the extra time under Option 1 could lessen potential burdens on businesses - especially SMEs and downstream users - without significantly impacting on human health and environmental protections.’
UK REACH: extending submission deadlines for transitional registrations - GOV.UK (www.gov.uk)
See below the recent bulletin from the HSE:
Interventions and workplace exposure limits (WELs) post EU Exit
Following the UK’s exit from the EU, there is no longer an obligation to adopt EU occupational exposure limits.
Tackling occupational ill-health remains a key theme of the strategy for Great Britain’s (GB) health and safety system and our current legal framework will continue to ensure that standards of protection for those working with hazardous substances are maintained.
GB will follow a more blended approach to exposure controls as directed by the evidence. This may include sector specific interventions such as awareness-raising, embedding knowledge, education, and guidance.
Where there is evidence to support the introduction of a new or revised WEL, HSE will follow the GB methodology approach.
We have also conducted a review of the EU exposure limits that had implementation dates falling after the transition period.
How WELs are set
When Great Britain was part of the EU, HSE was involved in the EU regime for setting WELs. We are no longer part of the EU regime, we have a blended approach to controlling exposures, such as communicating what proportionate control measures we expect rather than solely introducing a WEL, as directed by evidence.
Where there is evidence to support the introduction of a new/revised WEL, HSE will follow its own approach for GB workplaces:
§ the substance will be assessed and analysed by relevant specialists, including an economic assessment
§ the Workplace Expert Health Committee (WHEC) will act as independent experts to review the scientific basis for any WEL proposed
§ there will be a public consultation on the updates
§ they will be approved by the HSE Board
HSE has considered the evidence on all outstanding EU limits and will introduce a revised limit for 3 of them. These are specific to underground mining and tunnelling and already published in EH40/2005, which contains all updated limit
The undermining of health and safety legislation, lack of transparency and influence on changes being made to it, along with a lack of resources and enforcement by the HSE and local authority and other regulatory authorities, will leave workers, and those in the wider community at risk. Health and Safety legislation does not just protect workers but everyone else affected by that work activity and chemicals and hazardous substances or dangerous activities do not just stay within the workplace walls.
If we are all to be safe and healthy at work, then we need to be vigilant in ensuring our employers are controlling all the risks because it wont just be workers who are killed, made ill or disabled but their families and friends as well. There are no borders with hazardous and toxic chemicals.
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