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Proposals to remove fourteen legislative measures

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):

  • the opportunity to streamline and simplify a notification system which, over the years, has become complicated because of new legislation from Europe and the UK;
  • The COMAH Regulations which implement the Seveso II Directive are based on more up to date scientific views from across Europe;
  • It will make the notification process clearer and easier for businesses as they are currently required to notify if they are storing hazardous substances at or above the qualifying thresholds under NIHHS/NAMOS, PHS Regulations and the COMAH Regulations. This involves potential duplication and provides grounds for confusion;
  • The thresholds in the planning legislation (PHS) which require Hazardous Substances Consent are virtually identical to NIHHS; this will continue to ensure public protection and HSE will be aware of these sites via this regime;
  • It will help to ensure that fire fighters are aware of sites containing 150 tonnes of AN (as currently defined in the NIHHS (Amendment) Regulations 2002) as such sites will be marked. Appropriate precautions can then be taken to minimise heightened risk

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.