ChemRegs Newsletter – June 2023

The Control of Explosives Precursors and Poisons Regulations 2023

The Control of Explosives Precursors and Poisons Regulations 2023 comes into force from 1 October 2023 and will make a number of amendments to the regime governing regulated and reportable substances under the Poisons Act 1972, and the existing Control of Poisons and Explosives Precursors Regulations 2015.

The purpose of the amendments is to strengthen existing safeguards that are in place to prevent the illicit use of certain explosives precursors and poisons to cause harm. These amendments were identified following a detailed review of the legislation relating to controls of explosives precursors and poisons following the Manchester Arena and Parsons Green explosives attacks in 2017.

Following these attacks in 2017, an Operational Improvement Review (OIR) was announced by the Commissioner of the Metropolitan Police and Director General of MI5. This was designed to identify and take forward improvements to processes and capabilities for managing terrorism investigations. Lord Anderson was commissioned to deliver a stocktake, which made three broad recommendations concerning Exploiting Data; Multi-Agency Engagement; and Domestic Extremism. While the OIR was not published due to its classified nature, Lord Anderson’s public report covering an overview of the post-2017 attack reviews can be read here: Attacks_in_London_and_Manchester_Open_Report.pdf (publishing.service.gov.uk).

The recommendations outlined in the OIR led to a review of the policy relating to explosives precursors and poisons, where a number of key legislative gaps were identified. Policy proposals were considered based on this evidence and scientific evidence surrounding the risk posed by specific chemical substances, resulting in a public consultation which ran from 16th December 2021 – 10th March 2022. These proposals were then considered and assessed in light of the evidence and consultation responses, resulting in the new 2023 Regulations.

The Control of Explosives Precursors and Poisons Regulations 2023 impose the following new requirements that come into effect from 1 October 2023:

• Businesses selling reportable and regulated substances to other businesses must inform them that the substance in question is subject to regulation under the 1972 Act.
• Businesses supplying regulated explosives precursors to other businesses must obtain and record certain information about the identity of the business customer and the nature of the customer’s business. The supplier must also be satisfied that the regulated precursor is being obtained for a purpose reasonably connected with the business. This information should be recorded and stored for 18 months.
• Businesses who make supplies of regulated or reportable substances as part of their business, and who engage workers to assist in making such supplies, must ensure that the workers are provided with relevant information about the requirements that apply in relation to such substances.
• Operators of online marketplaces must have proportionate procedures in place to provide their users who use the online marketplace to supply regulated or reportable substances, with information about the requirements surrounding the supply of such substances. The operator must also report any suspicious activity relating to the same of regulated or reportable substances by those using the online marketplace.
• All suspicious activity reporting under section 3C must be made within 24 hours of forming the belief that a transaction is suspicious, or within 24 hours of a significant theft or loss of reportable or regulated substances being detected.
• All suspicious activity reports must be made via the electronic reporting service or by telephone.
• When making a suspicious activity report, businesses (including online marketplaces) must provide all information that they hold which is likely to be useful in identifying the individual involved in the suspicious transaction).

New substances have also been added to the lists of regulated explosives precursors and poisons. These are:

• Hexamine
• Hydrochloric acid above 10% w/w
• Phosphoric acid above 30% w/w
• Ammonium nitrate above 16% nitrogen
• aluminium sulfide, sodium sulfide, calcium sulfide and magnesium sulfide
• Arsenic compounds (specifically, calcium arsenites, copper acetoarsenite, copper arsenates,lead arsenates)
• Mercury compounds (mercuric chloride, mercuric iodide, organic compounds of mercury except compounds that contain a methyl group directly linked to the mercury atom)
• Zinc phosphide
• Calcium phosphide
• 2,4-Dinitrophenol

The government online guidance and training materials have been updated to help businesses and industry bodies understand how to comply with the new requirements. Failure to comply with the requirements imposed by the new regulations is a criminal offence (see section 7(4) of the 1972 Act).

Guidance can be found at: https://www.gov.uk/government/publications/supplying-explosives-precursors/supplying-explosives-precursors-and-poison

Annex VIII of GB CLP to be revoked

The European Union (EU) Classification, Labelling and Packaging of Chemical Substances and Mixtures (CLP) Regulation was replaced in Great Britain (GB) by the GB CLP Regulation on 1 January 2021. This was in effect a “cut and paste” exercise. In doing so, the UK Department for Health and Social Care (DHSC) accidentally copied over and adopted the EU Annex VIII into GB CLP.

Annex VIII of CLP sets provisions to harmonise, in terms of format and content, the information relating to emergency health responses that companies placing certain hazardous mixtures on the EU market are required to submit to the bodies appointed by each Member State (the appointed bodies or poison centres). The required information includes, among other things, the clear identification of the mixture and of the person responsible for placing it on the market, information on the composition and hazardous ingredient substances, and on the intended use through a system of harmonised categories. The information must be submitted by electronic means in a specified format, which enables the appointed bodies to easily retrieve the relevant information. A unique formula identifier (UFI) assigned to each mixture allows the poison centres to unambiguously identify the mixture and propose the appropriate medical treatment in the event of poisoning.

This accidental adoption meant that UK companies now needed to submit poison centre notifications in the new harmonised format to the UK National Poisons Information Service (NPIS) instead of the existing voluntary scheme of data collection, whereby the NPIS received product safety information for all mixtures marketed via submission of the safety data sheet (SDS).

As you can imagine, this adoption of Annex VIII was hugely controversial and the issue has been discussed and debated internally within the UK Government. The NPIS page on how to submit data on chemicals from industry was removed and replaced with a message stating that the process was under review, leaving industry in limbo as to what to do.

The DHSC have now announced that there are plans to revoke Annex VIII in GB law before the end of 2023. This means that GB companies will now no longer be required to submit a poison centre notification in the harmonised format to the NPIS and the voluntary scheme of SDS submission remains in force.

It is understood that in the meantime the Health and Safety Executive (HSE) will apply a practical approach to the enforcement in GB.

European Commission adds 24 CMR substances to REACH restrictions list

On 8 June 2023 the European Commission added 24 new entries of substances that are carcinogenic, mutagenic, or toxic to reproduction (CMR) to the EU REACH Restricted Substance List (Annex XVII). The list of substances was published in an Annex to the Commission Regulation 2023/1132 in the Official Journal of the European Union on 9 June.

The Commission Regulation can be found at https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32023R1132

The 24 new substances are classified as Category 1A and 1B CMR substances. Category 1A covers chemical substances for which there is scientific evidence based on humans that the substance is CMR and for Category 1B the scientific evidence is based on animals. Under the REACH regulation substances that are categorised as CMR 1A and 1B cannot be placed on the market or used.

Their inclusion in the list follows their new classification under EU CLP as CMRs as part of the 18th adaptation to technical progress (ATP) of the CLP regulation.

The 24 new CMR substances added to Annex XVII of EU REACH are:

The restrictions will come into force on 1 December 2023 when the new classifications are applied.

Application in the UK

The Department for Environment, Food and Rural Affairs (Defra) and the Scottish and Welsh Governments are the appropriate authorities for UK REACH. Under the GB CLP Regulation, the Secretary of State, and Scottish and Welsh ministers are appointed GB CLP competent authorities and can propose new or revised GB CLP classifications.

The GB CLP classification can vary from EU CLP.

For example, ammonium bromide has a new classification of Repr. 1B, H360FD (May damage fertility. May damage the unborn child) in the EU. However, the HSE is of the opinion that the classification as Repr. 1B, H360FD is not justified. It proposes instead that the classification be Repr. 1B, H360Fd (May damage fertility. Suspected of damaging the unborn child).

The HSE proposal for classification of ammonium bromide has not yet been adopted and is going through the various stages for GB mandatory classification and labelling (GB MCL), which include:

• the GB MCL proposal
• public consultation
• the GB MCL Technical Report
• the GB MCL impact and policy assessment
• the GB MCL Agency Opinion
• GB MCL Recommendation and Decision
• amending the GB MCL List

The proposal to classify ammonium bromide as Repr. 1B; H360Fd has the potential to trigger control measures under UK REACH Annex 17 restrictions whereby the substance could be restricted from being placed on the market for public use. The proposed GB MCL of the substance also meets the criteria to be considered under Article 57 of UK REACH for the identification of substances of very high concern (SVHC) which could eventually lead to more controls and authorised use of the substance in the UK, including professional use.

Private health care provider fined for exposing workers to chlorine gas

A private health care provider has been fined after three workers received treatment following exposure to chlorine gas.

Anthony Coombes, an engineer from Sandhurst, Berkshire, was working at The Hampshire Clinic on Basing Road in Basingstoke when he was exposed to the potentially deadly gas on 11 March 2021.

He had been hired by Circle Health Group, the firm that runs The Hampshire Clinic, and asked to reduce the pH levels in the clinic’s hydrotherapy pool. However, there were no trained employees for the safe operation of pool plant at the clinic’s physiotherapy suite and Mr Coombes had not been fully trained in chlorine dosing operations or chemical storage.

He added sodium hydrogen sulphate, also known as sodium bisulphate, to the pool’s sodium hypochlorite tank which caused a reaction and resulted in the release of chlorine gas.

Mr Coombes, who is now 59, was exposed to the gas and taken to hospital where he was given oxygen. Two other workers at The Hampshire Clinic were affected by the gas exposure and treated by doctors at the site.

Chlorine gas exposure can be fatal in minutes. Analysis by HSE’s Science Division indicated that the maximum volume of chlorine gas produced was nearly 8000 times over the workplace exposure limit (WEL) and nearly 400 times over the Immediately Dangerous to Life or Health (IDHL) Limit.

A Health and Safety Executive (HSE) investigation found that Circle Health Group fell far short in ensuring the health, safety and welfare of both its employees and contractors. Industry guidance for managing pool water treatment is well-known and been established for a significant period of time. Circle Health Group failed to put in place recognised industry standards of suitable risk assessments, adequate training as well as instructions and safe systems of work for the handling and mixing of chemicals.

HSE guidance can be found at: Swimming pool management: Leisure activities (hse.gov.uk)

Circle Health Group Limited, of Cannon Street, London, pleaded guilty to breaching Sections 2(1) and 3 (1) of the Health and Safety at Work etc. Act 1974. The company was fined £160,000 and ordered to pay £12,520.03 in costs at Basingstoke Magistrates’ Court on 20 June 2023.

HSE inspector Francesca Arnold said: “Swimming and therapy pool operators must comply with their general duties under the Health and Safety at Work etc Act 1974, which includes making a suitable and sufficient risk assessment of the health and safety risks to their workers and users including the risks of operating pool water treatment systems and the incompatible mixing of chemicals.

“Chlorine derivatives in pools are a well-established method of disinfectant provision and the accidental addition of acid to hypochlorite is the commonest cause of chlorine release incidents in pool buildings, it is fortunate that the injuries suffered were not more serious or even fatal.”

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