July 2022 Edition

ChemRegs Newsletter – July 2022

Requirement for Consignor Only Companies to Appoint a DGSA no later than 31st December 2022

Consignor only companies involved in the carriage of dangerous goods are now required to appoint a Dangerous Goods Safety Advisor (DGSA). The deadline for appointing a DGSA is 31 December 2022.

The Dangerous Goods team at the Department for Transport have created a video to explain, in simple terms, this requirement and have asked industry to disseminate the following message to as many people as possible.

The content of the video applies to the transport of dangerous goods by road and/or rail.

Background
Consignor only companies, unlike those involved in the packing, filling, loading, unloading and transport, had previously been exempt from this requirement. However, in 2019, amendments were made to the International Carriage of Dangerous Goods Regulations for road (ADR) and rail (RID) requiring consignors to appoint a DGSA. This is a legal requirement within GB through the Carriage of Dangerous Goods and Use of Transportable Pressure Equipment Regulations (as amended).

Given this regulatory change was first written within the 2019 versions of ADR and RID, there has been a 4-year transitional period to adapt to this requirement. Therefore, this video serves as a reminder that this transitional period is nearing its end, and those organisations still needing to appoint a DGSA shall do so no later than 31st December 2022.

What is a dangerous goods safety adviser and their responsibilities
A DGSA is responsible for helping to prevent the risks inherent in the carriage of dangerous goods, specifically the risk to people, property and the environment.

The responsibilities of the DGSA include:

  • monitoring compliance with the requirements governing the carriage of dangerous goods
  • advising undertakings on the carriage of dangerous goods
  • preparing an annual report about the performance of the undertaking in transporting dangerous goods
  • investigating any accidents or infringements of regulations and preparing reports
  • monitoring the provision of training and advice to other staff
  • reporting of incidents and accidents to DfT

A full list of responsibilities can be in chapter 1.8.3.3. of ADR.

Exemptions
There are several exemptions to appointing a DGSA. However, if you are unable to ascertain whether these exemptions are applicable to your business, it can be useful to consult with a DGSA (as a one-off service) to bottom out whether you fall within scope of this requirement. Alongside companies or individuals offering DGSA consultancy services, there are also qualified DGSAs within the Dangerous Goods team. It is advisable that organisations can confidently explain how they are exempt.

More information / Questions?
Please consult DfT Gov.uk guidance on employing a dangerous goods safety adviser (DGSA).

However, if neither the video nor the links to further information answer your query, then please contact the team directly on DGSAconsignors@dft.gov.uk.

GB CLP Poison Centre Mix Up

The UK government agencies responsible for CLP, the Department of Health and Social Care (DHSC) and the Health and Safety Executive (HSE), have confirmed the rumours that EU Annex VIII to the Classification, Labelling and Packaging (CLP) of Substances and Mixtures Regulation (EC No 1272/2008) was ‘accidentally’ retained in GB CLP following Brexit and so Annex VIII within GB CLP is therefore currently “in force” and has been since January 2021.

Annex VIII of CLP requires importers and downstream users to submit information on hazardous chemical mixtures to appointed bodies in the countries where the products are marketed. This information is then made available to poison centres, so that they can give advice to members of the public or medical personnel in the event of a poisoning.

The UK plan was to implement a voluntary scheme for poison centre notifications instead of the mandatory provisions under Annex VIII to the EU CLP, and the guidance on the DHSC website still reflects this approach. However, the UK National Poisons Information Service (NPIS) website section for Industry states “As of 3rd February 2022 this section is under review. Please check back later for updated guidance.” The HSE also has this a similar message in an NPIS update on its website.

The European Union (Withdrawal) Act 2018 brought all existing EU Regulations into UK law provided that the legislation was in force prior to Brexit day and that the legislation applied prior to Brexit day.

This brought in the following pieces of legislation:

  • 1272/2008 CLP with Article 45 (the requirement for poison centres)
  • 2017/542 Annex VIII (Original)
  • 2020/11 Amendment to Annex VIII
  • 2020/1677 Consolidated publication of Annex VIII

Subsequent amendments to CLP, including the Chemicals (Health and Safety) and Genetically Modified Organisms (Contained Use) (Amendment etc.) (EU Exit) Regulations 2019 (SI 2019/720) and the Chemicals (Health and Safety) and Genetically Modified Organisms (Contained Use) (Amendment etc.) (EU Exit) Regulations 2020 (SI 2020/1567), amended Article 45 (the requirement for Poison Centres), but didn’t repeal it.

This issue has arisen when, to put it simply, the UK cut and paste EU CLP in its entirety into GB CLP not worrying about Annex VIII and Article 45 because the original Brexit date meant it didn’t apply. Brexit was delayed so legally Annex VIII now applies in the UK but this was not noticed until a few months ago and then DHSC informed NPIS of the error.

If Brexit had not been delayed, then the Withdrawal Act would not have brought in 2017/542 (Annex VIII) or 2020/11 (Annex VIII amendment) because the application date of both pieces of legislation was January 1st 2020 and the original Brexit date was March 2019.

NPIS has now started rejecting SDSs and asking for Poison Centre submissions to comply with Article 45.

The DHSC and its executive agencies are now working to rectify this error, with the help of the Department for Business, Energy and Industrial Strategy (Beis) and the HSE.

It is understood that a public consultation is to be launched on whether to revoke the Annex. This will run for 12 weeks and ask for evidence in support of, or against, the revocation. How long the process will take is unclear. Following the consultation, the government will take a period of time to evaluate replies and publish its response. If it decides to repeal Annex VIII, it will then have to prepare the necessary legislation.

This leaves industry in limbo, do they start to make official poison centre notifications to NPIS or wait and see if the legislation is revoked?

HSE has confirmed that they will look at any enforcement decisions on a case-by-case basis. They will consider the efforts made by duty holders to achieve compliance as well as the level of risk when making enforcement decisions.

For more information on anything in this Newsletter, please contact us at info@chemregs.co.uk

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