Hazardous substances (Storage)

Consent Needed

Hazardous substances consent: Under the provisions of the Town and Country Planning (Hazardous Substances) (Scotland) Regulations 1993, and similarly the Planning (Hazardous Substances) Regulations 1992 in England and Wales, the presence of a ‘hazardous substance’ which is:

a) on, under or over the land, or

b) on, under or over other land within 500 m of it and controlled by the same person;

or c) in or on a structure controlled by the same person, any part of which is within 500 m of it;

and which is in or above the ‘controlled quantity’, the operator must obtain a Hazardous Substances Consent from the relevant hazardous substances authority (usually the local authority). The provisions of the regulations apply to any person knowingly causing/allowing the hazardous substance to be present, or the person in control of the land. There are 71 hazardous substances which, together with their controlled quantities, are listed inSchedule 1 of the Regulations.

Request the relevant application form together with relevant notices and certificates for publicity purposes from the hazardous substances authority (i.e. Local Authority).

Form 1 is for general applications for hazardous substances consent (HSC). Form 2 is for applications to remove conditions, or to continue a consent upon partial change in control of land.

The hazardous substances consent may be applied for using a self-prepared pro forma provided that this accords with the prescribed form, otherwise the application may be invalid.

Before submitting an application form, applicants must also;

• publish in a local newspaper a notice of the application, in accordance with the prescribed Form 3 (obtained from the hazardous substance authority with the application form). The newspaper notice must be published at some time within the period of 21 days immediately preceding the submission of the application;
• post a copy of the same notice on the application site, displayed in such a way as to be easily legible to members of the public without their needing to go onto the land. This site notice must be left in position for not less than 7 days in the period of 21 days immediately preceding the submission of the application.

When the application is submitted it must be accompanied by a copy of the newspaper notice, certified as having been published and specifying the name of the newspaper and date of publication; and by a certificate confirming that the site notice requirements have been complied with.

Schedule 2 of The Planning (Hazardous Substances) Regulations 1992 and Schedule 2 of The Town and Country Planning (Hazardous Substances) (Scotland) Regulations 1993 contain the relevant forms required to make an application for a Hazardous Substances Consent. The remaining forms contained in Schedule 2 of the Regulations relate to certifying ownership of the property.

The application must be accompanied by the appropriate fee. For applications where no one substance exceeds twice the controlled quantity, the fee is £250. For proposals involving the presence of a substance in excess of twice the controlled quantity, the fee is £400. Where the application is for either (a) the removal of conditions attached to a grant of consent or (b) the continuation of a consent upon partial change in ownership of the land, the fee is £200.

The overall application must comprise three copies of each document, i.e. the application form, the map and plan, and all notices and certificates.

In addition under the Notification of Installations Handling Hazardous Substances Regulations 1982 as amended, the Health and Safety Executive must be notified of an operator’s intention to store and/or handle a ‘hazardous substance’ at a quantity greater than the ‘notifiable quantity’ which is;

• that part of any pipeline under the control of the person having control of the site, which is within 500 m of that site and connected to it;
• at any other site under the control of the same person any part of the boundary of which is within 500 m of the said site.

The operator must notify the HSE of any intention to handle hazardous substances in writing, at least three months before any activities involving the substances occur. This period may be reduced as long as the HSE agree. The details that must be included in the letter of notification are listed in Schedule 2 of The Notification of Installations Handling Hazardous Substances Regulations 1982 as amended.

• The information required in Schedule 2 includes the following:
• Name and address of the person making the notification;
• Full postal address of the site and ordnance survey grid reference;
• Area of the site covered by the notification;
• Potential commencement date;
• Description of activities;
• Name and address of the local planning authority;
• Name and maximum quantity of each hazardous substance liable to be on the site.

The HSE will acknowledge that they have been notified of an operator’s intention to handle hazardous substances.

EC Regulation 1907/2006 (REACH)

REACH is a new European Community Regulation on chemicals and their safe use (EC 1907/2006). It deals with the Registration, Evaluation, Authorisation and Restriction of Chemical substances. The new law entered into force on 1 June 2007.

The aim of REACH is to improve the protection of human health and the environment through the better and earlier identification of the intrinsic properties of chemical substances. At the same time, innovative capability and competitiveness of the EU chemicals industry should be enhanced. The benefits of the REACH system will come gradually, as more and more substances are phased into REACH.

The REACH Regulation gives greater responsibility to industry to manage the risks from chemicals and to provide safety information on the substances. Manufacturers and importers will be required to gather information on the properties of their chemical substances, which will allow their safe handling, and to register the information in a central database run by the European Chemicals Agency (ECHA) in Helsinki. The Agency will act as the central point in the REACH system: it will manage the databases necessary to operate the system, co-ordinate the in-depth evaluation of suspicious chemicals and run a public database in which consumers and professionals can find hazard information.

The Regulation also calls for the progressive substitution of the most dangerous chemicals when suitable alternatives have been identified.

REACH provisions will be phased-in over 11 years.

The impact of the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) regime is developing. The requirement for manufacturers and importers to pre-register chemicals has concluded. Chemicals manufactured or imported into the EU in quantities of over one tonne need to be registered with the European Chemicals Agency (ECHA). Gradually more requirements are being passed onto users of chemicals with certain records to be kept.

A Timetable of REACH Implementation is available on the DECC Website.

Non Compliance: Contravention Notice

Where the applicant has contravened hazardous substances control, i.e. the applicant has not complied with the terms or conditions of the consent, or a consent was not obtained, the hazardous substances authority has several options open to them:

• They may prosecute, as contravention of control is in itself an offence, the maximum penalty on summary conviction is £20,000;
• They may issue a hazardous substances contravention notice, specifying the steps to be taken to rectify the breach of control;
• They may seek a Court injunction to restrain any actual or expected breach of control;
• They may negotiate in order to achieve a discontinuance of the breach without recourse to formal action.

The Council adopted a directive on control of major-accident hazards involving dangerous substances (PE-CONS 22/1/12 REV 1). The new directive will replace, by 1 June 2015, the current Seveso II Directive1 which applies to around 10 000
establishments in the EU. Click here for more information.

The Directive has to be amended due to changes in the EU system of classification of dangerous substances to which the Directive refers. In the light of this, it was decided in 2008 to launch a wider review since the basic structure of the Directive and its main requirements have remained essentially unchanged since its adoption. Although the review has shown that that overall the existing provisions are fit for purpose and that no major changes are required, a number of areas were identified where limited amendments would be appropriate in order to clarify and update certain provisions and to improve implementation and enforceability while maintaining or slightly increasing the level of protection for health and environment.