Where chemicals are used or produced in industry, the management of substances hazardous to health are critical to ensure the safety and well-being of employees, on-site contractors, visitors, and the surrounding environment and public. Whilst the headlines and sites regulated by the Control of Major Accident Hazards Regulations 2015 (COMAH) often focus on major risks and incidents, across the UK, smaller scale leaks causing injury (sometimes devastating long term injury) are common.
Posted
04.06.2024
Written by
Finch Consulting is regularly asked to report following failures in equipment that was intended to control escapes of gas and chemical liquids. This experience underscores the need for effective measures to manage the hazards and mitigate the risks associated with leaks of any harmful substances whether or not they emanate from businesses subject to the higher levels of control imposed by COMAH.
The Issue and the Law
The 1984 Bhopal gas tragedy in India provides an extreme example of what can happen when leaks are not effectively managed. A leak of methyl isocyanate from a pesticide plant caused an estimated 558,125 injuries of which approximately 3,900 were severely and permanently disabling. Estimates have suggested 8,000 died within 2 weeks of the leak, and a further 8,000 died subsequently, from gas-related disease.
The 1976 Seveso disaster in Italy impacted thousands through the inadvertent release of tetrachlorodibenzo-p-dioxins (a carcinogen which can cause reproductive, immune, and developmental issues and serious skin conditions) and led to an EU Directive which Great Britain implemented through COMAH.
The HSE recently released a safety notice following an incident in the UK, regarding the hazard created by a gasoline overfill of a carbon adsorption vapour recovery unit (VRU). The process control system failed and, because the overfill prevention system was not independent, this too failed. The hazard highlighted by this alert included fire and explosion, with the consequential risk of severe injuries and fatalities.
COMAH regulates sites which manufacture or store dangerous chemicals and explosives in excess of threshold quantities but all employers have a statutory duty under sections 2 and 3 of the Health and Safety at Work etc Act 1974 (the Act) to ensure, so far as is reasonably practicable, the health, safety of all of their employees, and to ensure that persons not in their employment but who may be affected by it, are not thereby exposed to risks to their health and safety. It is a broad duty. In any prosecution for breach of that duty, the burden of proof shifts to the employer to prove that they did take the often subjectively assessed reasonably practicable steps needed. It is not for the prosecution to prove they did not.
The Act specifically confirms that the duty to take all reasonably practicable steps extends to the arrangements for ensuring safety and absence of risks to health in connection with the use, handling, storage and transport of articles and substances.
The Control of Substances Hazardous to Health Regulations 2002 (COSHH) and Management of Health and Safety at Work Regulations 1999 (MHSWR) also extend to all employers. The MHSWR requires a suitable and sufficient assessment to be made of risks to the health and safety of employees to which they are exposed while at work, and to others arising from the conduct of the business for the purpose of identifying the measures needed to comply with the employer’s statutory duties. That will include an assessment of any hazardous substances used or produced.
