Annex 3- Notification of Installations Handling Hazardous Substances Regulations


Notification of Installations Handling Hazardous Substances Regulations 1982 (S.I. 1982/1357)
http://www.legislation.gov.uk/uksi/1982/1357/contents/made

Notification of Installations Handling Hazardous Substances (Amendment) Regulations 2002 (S.I. 2002/2979)
http://www.legislation.gov.uk/uksi/2002/2979/contents/made

Background

3.1 The NIHHS Regulations 1982 were introduced following the Flixborough disaster4 in 1974 to address public concern about industrial plant safety.

4The Flixborough disaster was an explosion at a chemical plant close to the village of Flixborough, on 1 June 1974. It killed 28 people and seriously injured 36.

3.2 The 1982 regulations were amended in 2002. They changed the period of notice for ammonium nitrate (AN) from three months to at least four weeks, and lowered the specified quantity to 150 tonnes for AN and mixtures containing AN where the nitrogen content exceeds 15.75% of the mixture by weight5.

5Regulation 6 of NIHHS Amendment Regulations 2002.

3.3 The NIHHS Regulations provided the first element of the three measures (identification, control of risks and mitigation of consequences) for the management of risks from installations handling hazardous substances. They require a person who stores, manufactures, processes or transfers a specified minimum quantity of a defined hazardous substance, as set out in the regulations, to notify HSE about the activity. The person has to notify their name, address and inventory of the hazardous materials on site three months before starting the activity.

3.4 The notifications provided HSE with details about hazardous sites and helped to define priorities in inspection programmes. However, notifications are now also obtained through other legislation (see Table 1). HSE used the information to inform Local Planning Authorities about the location of sites in their areas, to assist them in development control. The same information and any necessary advice was also made available by HSE to the emergency services.

3.5 The NIHHS Regulations contain a requirement to update HSE if the information in the original notification has changed or there is significant intensification or an increase in the scale of activities at a site. This requirement would also include de-notification. They also make HSE the enforcing authority for health and safety requirements at all notified sites.

Related Legislation

3.6 The NIHHS regulations are related to other sets of HSE legislation including the planning legislation which is the responsibility of the Department for Communities and Local Government (DCLG) and the devolved administrations. For further details see Table 1.

Rationale for Revocation

3.7 We consider it is appropriate to revoke these regulations because they have been superseded by the European Seveso II Directive. This Directive was implemented in GB through the COMAH regulations and the Planning (Hazardous Substances) (PHS) Regulations 1992. These regulations now largely subsume the NIHHS procedure.

3.8 The key benefits of revoking the NIHHS Regulations 1982 and 2002 and the consequential amendment are (see paragraphs 3.9- 3.14 for detail):

Key issues

3.9 It is difficult to make a ‘like for like’ comparison between the threshold values in NIHHS and COMAH, but any slight differences are covered by the PHS Regulations. The PHS Regulations brought about a significant change to the regime under NIHHS because they control the type of substance, the quantity, location and storage arrangements, where as the NIHHS Regulations only require notification and do not include any controls.

3.10 Under NIHHS, a small number of substances (seven) have lower thresholds than in COMAH/Seveso (eg, the NIHHS threshold for methane is 15 tonnes, for COMAH it is 50 tonnes, outlined in Table 2). However, if NIHHS is revoked, existing protection will remain the same because the PHS Regulations contain the same notifying threshold levels as NIHHS in respect of the seven substances that have lower thresholds, when compared to COMAH. Therefore HSE will be aware of sites containing these substances through the PHS regime.

3.11 The main consequence of revoking the two sets of NIHHS regulations relates to notification requirements for ammonium nitrate (AN). Operators who use or store more than 150 tonnes of AN6 are required to notify HSE. This requirement will be removed if the NIHHS Regulations are revoked. However, revocation of NIHHS will bring ammonium nitrate under a different regulatory regime: the Dangerous Substances (Notification and Marking of Sites) Regulations 1990 (NAMOS7). This is because NAMOS, does not apply to substances which are notifiable under the NIHHS Regulations – this includes AN. Once the NIHHS regulations are revoked, this exclusion will no longer apply.

6As defined in the NIHHS (Amendment) Regulations 2002

7Schedule 1 – Exceptions – Regulation 4 (which relates to notification) shall not apply to (a) sites which are notifiable to the Executive in accordance with the Notification of Installations Handling Hazardous Substances Regulations 1982(2)

3.12 The NAMOS Regulations are specifically intended to protect fire fighters. This is achieved by ensuring that sites storing more than 25 tonnes of certain dangerous substances are clearly marked to assist and direct fire fighters. However, with the revocation of NIHHS, we need to ensure that there is a specific requirement for the notification of AN. We can achieve this through a consequential amendment to NAMOS requiring operators to notify the Fire and Rescue Services8 if they have or exceed 150 tonnes of AN (and mixtures containing AN with the same nitrogen content as in NIHHS, (see paragraph 3.2) on site.

8In England, Scotland or Wales

3.13 Whilst we acknowledge the threshold levels are much lower in the NAMOS Regulations (i.e. 25 tonnes for all substances) than in NIHHS we do not propose as part of the amendment to lower the threshold for AN. We believe that to do so would bring many small businesses, particularly farms, into scope of the legislation and would therefore place an additional burden on those businesses.

3.14 The consequential amendment will mean that operators of sites which contain AN at or above 150 tonnes will need to mark the sites accordingly so that Fire and Rescue Services personnel will be aware of the existence of AN when dealing with an incident at a site.

3.15 The NIHHS Regulations have not been cited on Notices issued in the previous 13 year period nor have they been cited in approved prosecution activity in the previous 13 year period.

3.16 Regulation 7 of NIHHS made HSE the enforcing authority for health and safety requirements at all notified sites. This included a small number of sites that would have normally been enforced by the Local Authority (LA). Following revocation of NIHHS those sites will return to the jurisdiction of the LAs.

Table 1 Related Legislation

Return to Annex 3.

LegislationOutline of requirements
The Dangerous Substances (Notification and Marking of Sites) Regulations 1990 (NAMOS)

The primary aim of these Regulations is to alert the Fire and Rescue Services (FRSs) to the special fire fighting hazards likely to exist at certain sites. The regulations require

  • operators to notify HSE and the FRSs if they exceed a 25 tonne threshold for specific types of substances, and
  • sites to have appropriate hazard signage to protect the safety of FRS personnel dealing with an incident at a site

The enforcing authority for the notification provision is either HSE or the Local Authority, whilst the FRSs have powers for the other provisions. The Regulations set out the information to be notified, although the name of the substance does not need to be notified only its hazard category (e.g. toxic, corrosive).

The Control of Major Accident Hazards (COMAH) Regulations 1999 as amended

The COMAH Regulations 1999 which were amended in 2005 implement the Seveso II Directive (96/82/EC9 ) except for the land use planning requirements of Seveso which were implemented by changes to the planning legislation (see below). They came into force on 1 April 1999 and the amending Regulations on 30 June 2005. Their aim is to prevent major accidents involving dangerous substances and limit the consequences to people and the environment of any accidents which do occur.

9As amended by Directive 2003/105/EC in Great Britain

The regulations operate at two levels. Depending on the quantities of dangerous substances at an establishment the operator has to either notify HSE or submit a written safety report.

The Regulations are enforced by a competent authority comprising HSE and the Environment Agency (EA) in England and Wales, and HSE and the Scottish Environment Protection Agency (SEPA) in Scotland.

The Petroleum (Consolidation) Act 1928 and associated Regulations

There are references to NIHHS in section 25a (1)(b) of the Petroleum (Consolidation) Act 192810 and its associated Regulations, namely Regulation 15a of the Petroleum-Spirit (Motor Vehicles etc) Regulations 1929, Regulation 8(b) of the Petroleum-Spirit (Plastic Containers) Regulations 1982 and Regulation 2(4)(c) of the Petroleum (Consolidation) Act 1928 (Enforcement) Regulations 1979. All these references are included to disapply the requirement to comply with various legislation if NIHHS is complied with. If the NIHHS Regulations are revoked any current NIHHS sites where petrol is dispensed, that are not covered by the COMAH Regulations, will be subject to the petroleum legislation and therefore subject to the licensing regime.

10 It should be noted that in response to the recommendation made by Professor Löfstedt, the Government has undertaken to review the Petroleum Consolidation Act 1928 and associated legislation with a view to their consolidation.

The Planning (Hazardous Substances) (PHS) Regulations 1992

The Planning (Hazardous Substances) (PHS) (Scotland) Regulations 1993

The Town and Country Planning (Development Management Procedure)(England) Order 2010

The Town and Country Planning (General Development Procedure) Order 1995

The Town and Country Planning (Development Management Procedure) (Scotland) Regulations 2008

The Planning legislation is the responsibility of the Department for Communities and Local Government in England, the Welsh Government in Wales and the Scottish Government in Scotland.

Hazardous Substances Consent (HSC) is required for the storage or use of specified hazardous substances at or above specified controlled quantities as set out in the legislation. If consent is required applications have to be made to the Hazardous Substances Authority (usually the Local Planning Authority (LPA)).

Planning applications for development are also made to the LPA. Where certain proposed development is within the HSE consultation distance of a major hazard site/pipeline the LPA is required to consult HSE. HSE has an advisory role for applications for HSC and for proposed development within the HSE consultation distance. The process assists the LPA in development control.

The planning legislation contains a list of hazardous substances (revised in 2009 and 2010 in England and Scotland and in 2010 in Wales, and outlined in detail in Table 2) that virtually mirrors the list of notifiable substances in the NIHHS Regulations. This is because the list in the planning regulations was derived from the NIHHS Regulations with additions from the Control of Industrial Major Accident Hazards Regulations (CIMAH) 198411. This legislation together with NIHHS was in place before the COMAH Regulations implemented the Seveso II Directive.

11Superseded by the Control of Major Accident Hazard (COMAH) Regulations 1999.

The PHS regulations brought about a significant change to the regime under NIHHS because they control the type of substance, the quantity, location and storage arrangements, where as the NIHHS Regulations only require notification and do not include any controls.

Table 2 Comparison of NIHHS, COMAH, Planning Regulations and SEVESO II Directive to identify any differences if Schedule 1 of NIHHS - 'List of Hazardous Substances' is revoked

Return to Annex 3

(The seven substances with a lower threshold in NIHHS than in COMAH but are covered by the planning legislation are highlighted in bold in column 2)

Dangerous SubstanceNIHHS (Part II) (tonnes)COMAH (tonnes)Seveso II (tonnes)Planning (Hazardous Substances Regulations (tonnes)
LPG held at pressure > 1.4 bar resolute 25 50 50 25
LPG under refrigeration at a pressure of 1.4 bar absolute or less 50 50 50 50
Phosgene 2 0.3 0.3 0.3
Chlorine 10 10 10 10
Hydrogen Fluoride 10 generic very toxic
5
Generic very toxic
5
generic very toxic
5
Sulphur trioxide 15 15 15 15
Acrylonitrile 20 generic toxic
50
generic toxic
50
20
Hydrogen Cyanide 20 generic very toxic
5
generic very toxic
5
generic very toxic
5
Carbon Disulphide 20 generic toxic
50
generic toxic
50
20
Sulphur Dioxide 20 generic toxic
50
generic toxic
50
20
Bromine 40 20 20 20
Ammonia 100 Anhydrous ammonia or solution with concentration C > 25%
generic toxic
50
Ammonia solutions 25%>C>10%
100
Anhydrous ammonia or solution with concentration C > 25%
generic toxic
50
Ammonia solutions 25%>C>10%
100
generic toxic
50
Hydrogen 2 5 5 2
Ethylene oxide 5 5 5 5
Propylene oxide 5 5 5 5
Butyl peroxyacetate 5 Not named. No harmonised classification. Not named. No harmonised classification. 5
Butyl peroxyisobutyrate 5 Not named. No harmonised classification. Not named. No harmonised classification. 5
Butyl peroxymaleate 5 Not named. No harmonised classification. Not named. No harmonised classification. 5
Butyl peroxy isopropyl carbonate 5 Not named. No harmonised classification. Not named. No harmonised classification. 5
Dibenzyl peroxydicarbonate 5 Not named. No harmonised classification. Not named. No harmonised classification. 5
2,2 Bis(tert Butylperoxy)butane 5 Not named. No harmonised classification. Not named. No harmonised classification. 5
1,1 Bis(tert Butylperoxy)cyclohexane 5 Not named. No harmonised classification. Not named. No harmonised classification. 5
Di-sec-Butyl peroxydicarbonate 5 Not named. No harmonised classification. Not named. No harmonised classification. 5
2,2 Dihydroperoxypropane 5 Not named. No harmonised classification. Not named. No harmonised classification. 5
Di n propyl peroxydicarbonate 5 Not named. No harmonised classification. Not named. No harmonised classification. 5
Methyl ethyl ketone peroxide 5 Not named. No harmonised classification. Not named. No harmonised classification. (nb > 60%)
5
Sodium chlorate 25 50
(generic oxidising)
50
(generic oxidising)
25
Cellulose nitrate (other than - see note on pg 6 of the Regs) 50 50
(generic explosive note 2(a))
5000
(generic highly flammable if < 12.6% nitrogen)
50
(generic explosive UN/ADR Division 1.4)
5000
(generic highly flammable if < 12.6% nitrogen)
50
(other than – see note on pg 5 of the Regs)
Ammonium nitrate – note, proposal is that the threshold requirement in NIHHS is transferred to the NAMOS Regulations. 150 350
(> 28% ammonium nitrate or solutions containing more than 90% ammonium nitrate)
1250
(fertilisers with nitrogen content due to AN > 28%)
350
(> 28% ammonium nitrate or solutions containing more than 90% ammonium nitrate)
1250
(fertilisers with nitrogen content due to AN > 28%)
Dependant on the grade of AN ranges are 5000, 1250, 350, 10,
Aqueous solutions containing more than 90 parts of weight of ammonium nitrate per 100 parts by weight of solution 500 350
(solutions containing more than 90% ammonium nitrate)
350
(solutions containing more than 90% ammonium nitrate)
2009 substance A3 350 te
Liquid oxygen 500 200 200 2009 substance A27 200te

Part II of NIHHS – Classes of Substances not specifically named in Part I

Nb. There is no direct read across between the definitions of flammable or explosive in Part II of Schedule 1 of NIHHS and Part 3 of Schedule 1 of COMAH. The figures quoted for COMAH below are therefore references to the likely nearest threshold.

The Notes are derived from Seveso II, so the thresholds can be taken to be the same under Seveso II although the references to the Notes will be different

Dangerous SubstanceNIHHS (Part II) (tonnes)COMAH (tonnes)Seveso II (tonnes)Planning (Hazardous Substances Regulations (tonnes)
1. Gas or any mixture of gases which is flammable in air and is held in the installation as a gas. 15 50 for natural gas, otherwise 10 if COMAH Schedule 1, Part 3, Note 3(c)(ii) is relevant. 50 for natural gas, otherwise 10 if Annex 1, Part 3, Note 3(c)(2) is relevant. 2009 substance A66 15 te
2. A substance or any mixture of substances which is flammable in air and is normally held in the installation above its boiling point (measured at 1 bar absolute) as a liquid or as a mixture of liquid and gas at a pressure of more than 1.4 bar absolute. 25 being the total quantity of substances above the boiling points whether held singly or in mixtures. 10 – if COMAH Schedule 1, Part 3, Note 3(c)(iii) is relevant. 10 – if Annex 1, Part 3, Note 3(c)(3) is relevant. 2009 substance A67 25 te
3. A liquefied gas or any mixture of liquefied gases, which is flammable in air, has a boiling point of less than 0 degrees (measured at 1 bar absolute) and is normally held in the installation under refrigeration or cooling at a pressure of 1.4 bar resolute or less. 50
being the total quantity of substances having boiling points below 0 degrees C whether held singly or in mixtures.
no equivalent for comparison Not named 2009 substance A19 50 te
4. A liquid or any mixture of liquids not included in items 1 to 3 above, which has a flash point of less than 21 degrees C. 10,000 5000 - highly flammable if COMAH Schedule 1, Part 3, Note 3(b)(ii) is relevant 5000 - highly flammable 1992 substance A71 10,000te
1999
Substance 32 5,000 te
2009 substance A36a)
2,500 te
And also the generic category B8
5,000 te

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