Health, Safety and Environmental Law Post-Brexit – a Guide to Chemicals and Hazardous Substances Regulation
2021 is set to be a big year for environmental law. With between 80% and 90% of UK environmental legislation derived from the EU, the impact of Brexit was unavoidable.
Part of the UK’s 25 year Environmental Plan Goals, published in 2018 and tied to Brexit, was managing exposure to chemicals. Managing risks associated with chemicals is also relevant to health and safety duties. The New Year has heralded a new UK REACH regime for chemicals regulation and in this blog we set out the changes you should be aware of.
The purpose of REACH is to keep track of chemicals placed on the EU market (and now also the UK market) to allow manufacturers and others in the supply chain to manage the risks those chemicals pose to human health and the environment. The aim is to have the most dangerous chemicals substituted with less hazardous alternatives where possible.
On 31 December 2020 the Brexit transition period came to an end and the UK was no longer bound by EU law. That said, the European Union (Withdrawal Act) 2018 has made sure that all health and safety and environmental regulations and directives derived from EU law are incorporated into UK law, and will continue to apply to UK employers from 1 January 2021.
What has changed?
As the main piece of legislation governing employers’ health and safety duties in the UK (the Health and Safety at Work Act 1974) is UK-derived, not much has changed in terms of UK employers’ general health and safety duties.
The Control of Substances Hazardous to Health Regulations 2002 (COSHH) places duties on employers to assess and control the risk of exposure to hazardous substances in the workplace. As it is a UK standard it is unlikely to be affected by Brexit.
What has changed, however, is the regime relating to the regulation of the chemicals industry. Specific changes you should be aware of relate to:
- Biocidal products regulation;
- Chemicals classification, labelling and packaging (CLP);
- Export and import of hazardous chemicals;
- Pesticides regulation; and
- REACH regulation (Registration, Evaluation, Authorisation and Restriction of Chemicals).
For manufacturers, suppliers, importers, distributors and downstream users one area where your role might change significantly is in relation to CLP and REACH.
- The UK Health and Safety Executive (HSE) has become the authorisation body for chemicals that are to be used in the UK, in place of the European Chemicals Agency. Imports and exports of listed chemicals now need to comply with the new UK regime, which seeks to mirror the current EU one.
- The EU CLP regulation has been retained in UK law and the UK has adopted the UN’s Globally Harmonised System (GHS) of the classification and labelling of chemicals, independently of the EU. While the main duties to classify, label and package chemicals remain, there will be some changes. Importantly the body which oversees compliance, is now the HSE as the GB CLP Agency, and classification and labelling of substances to be placed on the UK market must comply with the GB regime. Any goods to be placed on the market in Northern Ireland must comply with the EU regime. Under the Northern Ireland Protocol, Northern Ireland has a special status.
- There is a new UK REACH regime intended to operate independently of the current EU REACH regime.
UK businesses currently holding an EU REACH registration or authorisation are able to have that recognised in the new UK system, but you will need to make sure you have opened an account and provided required information to be able to access the new system and place chemicals on the UK market. For access to the EU market, you will need to either transfer your registration to an EU/EEA based entity or have your EU/EEA importers become registrants.
EU companies wishing to import chemicals into the UK will need to be registered with the new UK REACH system. New rules may also apply if you import chemicals from an EU based supplier or you are importing or exporting to or from Northern Ireland, which will continue to use the EU regime.
The impact on your business
While the effect of Brexit on UK health and safety law appears to be limited to specialised areas there are clear signs of the UK intending to forge its own path on environmental matter, including a UK ETS. Issues are inevitable further down the line where the UK and EU regimes do diverge for whatever reason.
That could start to have an effect on businesses that trade in both the UK and the EU, necessitating understanding of both regimes and ensuring compliance with both. Enhanced training may be required for workers from the EU if the UK regime starts to become vastly different.
One thing is for certain – a commitment to managing workplace risks and ensuring the safety of employees and others will remain a priority for the UK regime going forward.
With 2021 putting environmental issues into sharp focus, continuing to address environmental concerns and making health and safety a priority, and ensuring you know how any changes affect you will go a long way to helping you comply with your duties.
Get in touch if you have any concerns about compliance with CLP or REACH, environmental legislation changes or your health and safety duties generally.
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