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The Government has published new Draft REACH etc. (Amendment etc.) (EU Exit) Regulations 2019 on how the UK's system for chemicals regulation will operate once the UK leaves the EU.

These proposed Regulations make various amendments to Regulation (EC) 1907/2006 on the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) and establishing a European Chemicals Agency (ECHA), which currently governs chemical regulation within the European Union. The new UK REACH system will be similar to the European system under the REACH Regulation, mirroring the key principle of no data, no market for chemicals.

When these Regulations are brought into force the aim is that REACH provisions can work effectively within the UK to provide a UK system of chemicals regulation. The functions undertaken by the ECHA under Regulation (EC) 1907/2006 will be transferred to domestic bodies, predominantly the Health and Safety Executive (HSE), who already have some functions under REACH as the UK's competent authority. Any duties relating to appeals under REACH will be heard by the first-tier tribunal instead of the ECHA Board of Appeal. 

There are transitional provisions in the Draft Regulation to allow industry to move to the new UK system and reduce disruption. UK companies will be able to continue to undertake the same activities in relation to chemicals as they did prior to the UK leaving the EU, however they will need to provide the HSE with some information in order to do so.

Transferring existing UK registrants to the new UK system

UK based companies with existing REACH registrations held in the period of two years prior to the UK's exit from the EU, including UK-based only representatives, will automatically be transferred to the new UK REACH system with no break in their validity. These registrants will not have to re-register their substances in the UK, they will not have any new fees to pay, and they will continue to have access to the UK market.

All transferring UK registrants will need to resubmit their original REACH registration data to the HSE over a two stage process.

Within 60 days of the UK leaving the EU basic data will need to be submitted to the HSE, including:

  • company details;
  • chemicals registered;
  • quantities produced; and
  • evidence of existing ECHA registration.

Within two years of the UK's exit full information will need to be submitted to the HSE, appropriate to the registrant's tonnage band under REACH.

A new system will be implemented to facilitate the operation of the UK REACH system to which companies will be able to upload their required data.

ECHA decisions prior to exit

All ECHA decisions on UK registrations, including decisions on testing proposals, dossier and substance evaluations, taken immediately prior to exit day will continue to be in force. Any deadlines established in those decisions may be amended by the HSE after exit day.

Notification by UK importers from the European Economic Area

UK companies who source substances from suppliers in the rest of the EEA will become importers into the UK market on exit day. This means they will then have the duty to register the substances they are importing from the EEA.

There are transitional measures proposed in the Draft Regulations to help facilitate this. These importers will be required to complete an interim notification system, rather than undertake a full registration immediately after exit. This will allow qualifying companies to continue to buy substances from the EEA without interruption. Within 180 days of exit day, these companies will need to submit basic data on the company, substances, and information for safe use using the interim notification system. After two years this interim notification system will be replaced with full registration.

Existing authorisations and applications

Existing authorisations held by UK companies will continue to have effect after exit day. Any applications to request an extension of the authorisation at the review date specified should be made to the HSE.

A UK company whose substance is covered by a non-UK authorisation can continue to use that substance for the length of the EU authorisation. That UK company will need to supply the HSE with the conditions that govern that authorisation, and continue to comply with them.

Any authorisations that have been considered by the ECHA prior to exit day, but have not yet been granted authorisation, on exit day, the case will be decided by the Secretary of State with the consent of devolved administrations.

Appeals

Any appeals on decisions made by the HSE under the UK's new system of REACH will be heard by the First-tier tribunal. They may:

  • dismiss the appeal;
  • refer the decision back to the HSE for reconsideration; or
  • substitute the decision with its own.

Fees

The system of fees and charges established in Regulation (EC) 1907/2006 for submitting registration dossiers and applications for for authorisations will be retained. Fees will be payable to the HSE, apart from fees for appeals which will be payable to the First-tier tribunal.

Enforcement

Enforcement authorities in the UK will continue to have their existing roles in relation to enforcement under Regulation (EC) 1907/2006. New enforcement duties will also be introduced and will be enforced by the HSE in England, Wales and Scotland, and the HSE NI in Northern Ireland.

What next?

The progress of Brexit is currently unclear and these Regulations are for now just in draft format, but you can be certain that we will endeavour to keep you up-to-date with all the latest legislative developments.

For more information, see the:

New Clean Air Strategy published
Published: 14 Jan 2019

The Department for Environment, Food and Rural Affairs (DEFRA) has published a long-awaited Clean Air Strategy which sets out proposals to "tackle all sources of air pollution, make our air healthier to breathe, protect nature and boost the economy".

This document is based on an extensive consultation process, which gained broad support of the public. It aims to complement the Industrial Strategy, the Clean Growth Strategy and the 25 Year Environment Plan.

Since 2014, the government has been in court many times for failing to act on poor air quality, which harms people's health and affects the environment. In 2016 the government issued a document - "Tackling nitrogen dioxide in our towns and cities" - which implements a programme of clean air zones. 

Now, the government aims to tackle air emissions that come from other activities, such as the generation of power, household heating, agriculture, food production, manufacturing and transport.

The strategy is divided into 10 chapters, which are summarised below.

Chapter 1: Understanding the problem

In this chapter, the government sets out new and more stringent emission targets, by reducing the emissions against the 2005 baseline of:

  • PM10 and PM2,5 by 30% by 2020, and 46% by 2030;
  • Ammonia by 8% by 2020 and 16% by 2030;
  • Nitrogen oxides (NOx) by 55% by 2020 and 73% by 2030;
  • Sulphur dioxide (SO2) by 59% by 2020 and 88% by 2030;
  • Non-methane volatile organic compounds (NMVOCs) by 32% by 2020 and 39% by 2030.

The government also pledges transparency about the methods of monitoring the air quality and access to short-term forecasts for air quality, which can be accessed by anyone.

Chapter 2: Protecting the nation's health

Air quality is the largest environmental health risk in the UK, where health can be affected by both short-term, high-pollution episodes and long-term exposure to lower concentrations of air pollution.

The government aims to:

  • provide a personal air quality messaging system which will inform the public about the air quality forecast, clear information on air pollution episodes and the associated health risks;
  • back these goals up with powers to enable local action in areas with an air pollution problem;
  • work with media outlets to improve public access to air quality forecast;
  • work to improve air quality by helping individuals and organisations understand how they could reduce their contribution to air pollution.

Chapter 3: Protecting the environment

To reduce the direct and indirect impacts of air pollution on the environment, the government will:

  • commit to a new target for the reduction of damaging deposition of reactive forms of nitrogen and review what longer-term targets should be to further tackle the environmental impacts of air pollution;
  • monitor the impacts of air pollution on natural habitats and report on them annually to monitor the progress;
  • provide guidance for local authorities explaining how cumulative impacts of nitrogen deposition on natural habitats should be mitigated and assessed through the planning system.

Chapter 4: Securing clean growth and innovation

The government aims to maximise the advantages for UK industry from the global shift to clean growth through investment in the use of new, clean technologies, systems and services that tackle air pollution.

This document also announces future electricity, heat and industrial policies which together will aim to improve the air quality through:

  • phasing out coal-fired power stations;
  • improving energy efficiency;
  • shifting to cleaner power sources;
  • phasing out oil and coal heating.

Chapter 5: Action to reduce emissions from transport

Transport in the UK is a significant source of air pollution. To improve this, the government already introduced a Road to Zero strategy which aims to end the sale of new conventional petrol and diesel cars and vans by 2040.

Also new strategies for aviation and maritime are underway. By spring 2019 the rail industry will produce recommendations and a route map to phase out diesel-only trains by 2040.

Chapter 6: Action to reduce emissions at home

Burning wood and coal in open fires and stoves make up 38% of the UK’s primary emissions of fine particulate matter (PM2.5). Harmful sulphur dioxide (SO2) is emitted by coal burned in open fires. Non-methane volatile organic compounds (NMVOCs) from a wide variety of chemicals that are found in carpets, upholstery, paint, cleaning, fragrance, and personal care products are another significant source of pollution.

To improve this, the government will:

  • introduce legislation prohibiting the use of most polluting fuels;
  • ensure only the cleanest stoves are on sale by 2022;
  • make changes to existing smoke control legislation and make it easier to enforce;
  • give new powers to local authorities to tackle pollution;
  • work across government to look at opportunities to align our work on air quality, clean growth and fuel poverty in future policy design;
  • develop a campaign to improve awareness of the environmental and public health impacts of domestic burning of solid fuels;
  • work with industry to identify an appropriate test standard for new solid fuels entering the market;
  • work with consumer groups, health organisations and industry to improve awareness of NMVOC and VOC, developing a voluntary labelling scheme for NMVOC-containing products and promote the development of lower VOC-content products.

Chapter 7: Action to reduce emissions from farming

The agriculture sector accounts for 88% of UK emissions of ammonia through manure and slurry spreading.

To improve this, DEFRA aims to:

  • continue to work with the agriculture sector to ensure the ammonia inventory reflects existing farming practice and the latest evidence on emissions;
  • regulate to reduce ammonia emissions from farming by adopting low emissions farming techniques;
  • extend environmental permitting to the dairy and intensive beef sectors; and
  • regulate to minimise pollution from fertiliser use.

Chapter 8: Action to reduce emissions from industry

The government aims to maintain a longstanding policy of continuous improvement in relation to industrial emissions, building on existing good practice to deliver a stable and predictable regulatory enforcement for business as part of the clean green economy, including determining future Best Available Techniques for industrial emissions.

The government also considers closing the regulatory gap between the current Ecodesign and medium combustion plant regulations to tackle emissions in the 500kW to 1MW thermal input range. As legislation on medium combustion plants and generators comes into force, the government will consider the case for tighter emissions standards on such combustion plants.

Chapter 9: Leadership at all levels

The government aims to take action at a local, national and international level to tackle air pollution, tying it into the development of the new environmental principles and governance framework, as well as work in partnership with Scotland and Wales, who developed their own air quality strategies, to implement a National Air Pollution Programme.

Chapter 10: Progress towards our goals

This chapter presents the analysis which shows that the actions set out in this strategy can meet the government's emissions reduction targets if they are implemented with the necessary pace and determination.

Package delivery firm Tuffnells Parcels Express has been fined after one of its drivers received fatal crush injuries when he became trapped between a lorry tractor and a trailer in the West Midlands.

During a night shift in January 2016 the driver was coupling his vehicle to the trailer, known as a 'wagon and drag', which had been loaded with parcels and parked on a 3° slope at a depot in Dudley. The trailer rolled forward and trapped the driver between the trailer and the rear of the vehicle.

The Health and Safety Executive (HSE) found safety arrangements for coupling trailers had failed to take the slope into account. HSE stated that about two years before, the area of the accident had been designated a no-parking zone with cross-hatched yellow box road markings.

Regardless, HSE inspector Karl Raw discovered it was still a "nightly occurrence that this trailer or a trailer of this type was parked there to be picked up. Management had never addressed this at all over a period of years".

Though Tuffnells had carried out generic risk assessments for parking and movement of vehicles, District Judge Wheeler noted it had failed to consider site-specific factors and that the incident "certainly wasn't a systemic failure".

Raw served a notification of contravention on the firm, which immediately notified its 37 depots to ensure there were arrangements to avoid vehicles and trailers being parked on slopes. The company also updated the braking system on its fleet in case the accident had been caused by the trailer braking system being released to allow manoeuvring.

Tuffnells worked with the trailer manufacturers and it is now impossible for its trailer fleet to have the brakes taken off, until the actual trailer braking system is under the control and power of the air brakes of the vehicle it is being attached to.

HSE noted that "Tuffnells has certainly been very proactive in its measures taken post incident".

The Company pleaded guilty to breaching the Health and Safety at Work Act 1974 and, due to early guilty plea and remedial action, was fined £1.5 million and ordered to pay £32,823 costs.

Associated British Ports, DFDS Seaways PLC and ICTS (UK) Ltd have been fined after a security guard was fatally injured when he was struck by an articulated vehicle.

The security guard was employed at the container terminal at Immingham Docks when he approached the HGV which was entering a gate and walked in front of the vehicle. The guard was not visible to the driver on approach or as he walked in front of the vehicle.

The security guard was dragged underneath it as it turned towards a warehouse and sustained multiple injuries. He died at the scene of the incident in September 2015.

A Health and Safety Executive (HSE) investigation found Associated British Ports and DFDS Seaways PLC had failed to carry out a suitable and sufficient workplace transport risk assessment, and had not considered the risks that vehicles entering, leaving and manoeuvring in the gate posed to others.

Associated British Ports required the security guard at the gate to stop traffic and check pedestrians and vehicles entering the terminal, but failed to provide means to do so safely as there was no signage indicating drivers should stop and report to security, and no safe facilities.

ICTS (UK) Ltd failed to provide adequate training, and the risks of stopping traffic without any physical protective measures in place had not been considered.

The companies all pleaded guilty to breaching the Health and Safety at Work etc. Act 1974 and were fined the following:

  • Associated British Ports, £750,750.00 with £9,781.52 costs;
  • DFDS Seaways PLC, £166,670.00 with £9,766.02 costs;
  • ICTS (UK) Ltd, £500,000.00 with £9,338.82 costs.

After the hearing HSE inspector Carol Downes commented "there are more than 5,000 incidents involving transport in the workplace every year, and, like in this case, sadly, some of which are fatal".

"HSE found inadequate consultation between parties and no assessment of the risks to the segregation of vehicles and pedestrians. A properly implemented transport risk assessment should have identified sufficient measures to separate people and vehicles, and provide safe facilities".

Director jailed for REACH breach
Published: 09 Jan 2019

The director of Nuneaton-based Abel (UK) has found himself with a 10-month prison sentence over the sale of a plant protection product and a paint stripper which contained banned substances.

The Health and Safety Executive (HSE) had been alerted by a complaint in August 2014, that Abel was selling a weed killer containing sodium chlorate. A substance not approved for that use because a safe level has not been established.

The company was also selling a paint stripper containing dichloromethane (DCM), something which was restricted under Regulation (EC) 1907/2006 on the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH). DCM has a restricted use due to its harmful properties to human health, and the fact that it has resulted in fatalities when it is not used properly.

It also became apparent during the HSE investigation, that Abel failed to check at the point of sale that the paint stripper was either being sold for use in industrial installations or, to appropriately certified professionals. Both were a condition of its sale.

By working with online resellers, the HSE managed to remove advertisements for these products, and served enforcement notices on Abel in order to prohibit further supply. However, these notices were ignored. The firm, whose services included mobile truck, fleet washing and pressure-washer street cleaning, was dissolved on 30 January 2018.

Nicholas Corbett, who currently runs Abel Group (Midlands) in Atherstone, Warwickshire following the closure of Abel (UK), pleaded guilty to breaching the Plant Protection Products Regulations SI 2011/2131 and the REACH Enforcement Regulations SI 2008/2852 at Warwick Crown Court.

For more information, see the:

  • Regulation (EC) 1907/2006 on the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH);
  • REACH Enforcement Regulations SI 2008/2852;
  • Regulation (EC) 1107/2009 on the placing of plant protection products on the market;
  • Regulation (EU) 540/2011 implementing Regulation (EC) 1107/2009 as regards the list of approved active substances;
  • Plant Protection Products Regulations SI 2011/2131.

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