New COSHH Regulations approved by HSC

Following formal adoption by the Health and Safety Commission in December, significant amendments to the Control of Substances Hazardous to Health Regulations 20021 (COSHH) are expected to be laid before Parliament in the early part of the year, subject to ministerial approval.

After five years of discussion, the Control of Substances Hazardous to Health (Amendment) Regulations 2005 will effect the most significant revision since the Regulations were made in 1988 - triggered by the need to transpose EU directives, the chemical agents directive and banning high-chromium cement in particular.

The new regulations simplify the existing two-tier system of exposure limits and place less emphasis on air monitoring as the primary means of assessing workplace exposures. They also introduce a new requirement to observe eight "principles of good practice" on the control of exposure and elevate substances suspected of causing asthma to the category of agents, such as carcinogens, for which there may be no safe level of exposure.

The Health and Safety Executive (HSE) claims that the revised regulatory regime will be the first in the world of its type because it breaks way from the traditional approach of basing statutory duties primarily on compliance with hygiene standards, ie quantitative limits on concentrations of hazardous chemicals in workplace air. Instead, the explicit duty to apply principles of good practice, which are appended to the regulations themselves, are introduced in addition to the existing duty to prevent airborne concentrations exceeding any relevant exposure limit.

Old arrangements "unsuccessful"

The Commission's Advisory Committee on Toxic Substances(ACTS) first discussed the limitations of the existing system five and a half years ago and a working group began considering new regulations in July 2000, publishing a discussion document in March 2003.

The rationale behind the move away from a system focusing primarily on compliance with hygiene standards was the need to have a simpler system, and to help dutyholders in small firms who are unlikely to fully understand the minutae of the limit values system, or details of how to carry out air monitoring. HSE believes the new approach, combined with the issue of simple operation-specific COSHH Essentials guidance, also available on-line, will help small firms better understand their legal duties.

Occupational exposure limits (OELs) and other such hygiene standards have traditionally been promulgated for use as tools by industrial hygienists, rather than as guidance for employers. Nevertheless they were enshrined in the original 1988 regulations (in the form of maximum exposure limits (MELs) and occupational exposure standards (OESs)) as the key benchmark of compliance. Since then the HSE has occasionally introduced changes to these limit values but essentially the system itself has remained unchanged.

HSE research

However, HSE research, based on interviews with firms using chemicals, found that even among "heavy users" of chemicals, no more than a third were aware of either the COSHH Regulations themselves or the associated system of OELs, and few were aware of methods of complying with them.The HSE said the research showed that, "OELs play little part in the decisions [small] firms make on the management of risks from chemicals. It follows that moving OELs from tools for health and safety professionals to limits with which all chemicals users have to comply has not been a success".

Other problems associated with the existing system identified by the HSE were: that OESs were not the "safe" limits they were invariably perceived to be; that there were incompatibilities between the domestic and EU systems, and that the criteria for setting OEL/MESs did not allow all types of hazard to be dealt with.

Developing a new approach

A discussion document published in March 2002 explored the possibilities for a new system that was simple and easy for duty-holders to understand, would provide a tool to help them improve standards of control, and address the difficulties associated with the existing two-tier system of limit values, making it more compatible with the indicative limit values promulgated by the European Commission.

Proposals for new regulations were formally published in a consultative document in October 2003. This proposed going ahead with a simplified, single-limit system of OELs - and the introduction of the concept of the Workplace Exposure Limit to replace both the existing, differently-specified MELs (for carcinogens and mutagens) and OESs (for most other types of hazardous agent).

Significantly, the majority of OESs were to be removed from the official list associated with the regulations on the grounds that were not based on sound scientific data.

Late changes

As previously reported in OHR, further changes were made to the draft regulations at a late stage, following submissions by industrial hygienists concerned that the wholesale removal of most limit values was a retrograde step.

Despite the fact that many limits did not stand up to scientific scrutiny, it was argued most had stood the test of time and had provided clear and useful reference points for practical purposes. As a result, ACTS decided that the number of limit values to be deleted should be reduced from more than 300 to 100 (see Most limits to be retained in revised Coshh Regulations and OHR 112).

The introduction of a duty to apply principles of good practice is achieved through the broadening of the definition of "adequate control" in reg. 7.

Another refinement of the definition of adequate control addresses routes of exposure other than inhalation.

Among the other significant changes made since the consultative document was published in 2003 has been the elevation of asthmagens to the higher-hazard status of substances, exposure to which must be reduced as low as reasonably practicable, rather than merely below the level of the occupational exposure limit. Again this is achieved by amendment of reg. 7.

1. ISBN 0 7176 1465 4, available from HSE Books.