Managing Dangerous Substances at the Workplace – A Focus on Current EU Law

by Riccardo Zorgno 26 Oct. 2018

 

The week—commencing October 22, 2018—is European Week for Safety and Health at Work 2018, a campaign organized by the European Agency for Safety and Health at Work. This year’s theme is “managing dangerous substances in the workplace” (for more info click here). We thought it would be a good opportunity to share with you a brief overview of some of the key current EU legislation around general hazardous material storage at workplaces…

Chemical Agents at the Workplace

Directive 98/24/EC seeks to protect the health and safety of employees from the risks related to chemical agents at work. The Directive requires employers to determine whether any hazardous chemical agents are present at the workplace and assess any risk to the safety and health arising from their presence. Employers must document the risk assessment and keep it up-to-date.

It is worth recalling that EU Directives only set the general legal framework and goals that need to be ’transposed’ into national provisions by each EU Member State. Therefore, operators should refer to national laws for the exact extent of the applicable requirements.

Based on the risk assessment, the employer has to take the necessary prevention measures in order to eliminate or reduce risks to the health and safety of employees at work involving hazardous chemical agents.

If the risk assessment reveals a risk to the safety and health of employees, the risk has to be eliminated or reduced to a minimum—preferably by substitution. Substitution means replacing a hazardous chemical agent with a chemical agent or process that is not hazardous or less hazardous. Where the nature of the activity does not permit risk to be eliminated by substitution, the following protection and prevention measures must be taken, in order of priority:

  • Design of appropriate work processes and engineering controls and use of adequate equipment and materials so as to avoid or minimize the release of hazardous chemical agents.
  • Application of collective protection measures at the source of the risk.
  • Application of personal protection measures.

These measures must be accompanied by health surveillance if this is appropriate to the nature of the risk.

Employers must regularly monitor the workplace to measure chemical agents which may present a risk to employees’ health, in relation to occupational exposure limit values. In case an occupational exposure limit value of a Member State has been exceeded, the employer must immediately take action—such as technical and/or organizational measures.

Employees or their representatives have to be informed of the results of the risk assessment and the hazardous chemical agents present at the workplace. They have to be provided with training on the appropriate precautions and on the use of personal protection equipment and must have access to any safety data sheet provided by the supplier.

In addition, the employer must establish procedures which can be implemented in the event of an accident or emergency related to the presence of hazardous chemical agents at the workplace. These procedures must include appropriate safety drills performed at regular intervals and the provision of appropriate first aid facilities. The employer has to provide sufficient information on emergencies to the external emergency service so that they can adapt their work accordingly.

With respect to packaging and labeling, employers have to ensure that the contents of containers and pipes used for hazardous chemical agents which have not been labelled in accordance with applicable EU legislation on the labeling of chemical agents and on safety signs at work, are clearly identifiable. The marking has to allow for the identification of the contents of the containers and pipes, together with the nature of the contents and any associated hazards.

In case an accident or emergency leads to the presence of hazardous chemical agents at the workplace, employees have to be informed. Only those employees needed to premeditate the situation are allowed to stay in the concerned workplace area.

Labeling of Containers and Pipes Containing Chemicals

Under Directive 98/24/EC, employers must ensure that containers and pipes containing hazardous chemicals agents are properly labelled. Since June 1, 2015 labels for substances and mixtures must be in accordance with Regulation EC/1272/2008 on Classification, Labeling and Packaging of substances and mixtures (commonly referred to as the “CLP Regulation”, which implements the UN’s Globally Harmonized System (GHS)). As opposed to Directives, Regulations apply directly in all EU Member States without any national implementing legislation and set out direct requirements for operators.

Employers must ensure that the contents of containers and pipes used for hazardous chemical agents are clearly identifiable. The markings used must enable the identification of the contents of the containers and pipes, together with the nature of the contents and any associated hazards.

Directive 92/58/EEC establishes the minimum requirements for the provision of safety and/or health signs at work. Annex III to the Directive states that containers used at work for hazardous substances and mixtures must be identified pursuant to the criteria of the CLP Regulation. Containers used for storing such chemicals, together with visible pipes containing or transporting hazardous substances and mixtures also have to be labelled in accordance with the CLP Regulation.

The label is a pictogram against a colored background. The pictograms must be placed on the visible side(s) of the container(s) and in an unpliable, self-adhesive or painted form.

These labeling requirements do not apply to containers used at work for brief periods nor to containers of which the content changes frequently, if alternative measures are taken to ensure the same level of protection for employees. Adequate alternative measures can take the form of information and/or training of employees.

Labels which are used on pipes have to be placed in a visible way in the vicinity of the most dangerous points— for example, valves and joints—at reasonable intervals.

Specific provisions apply to areas, rooms or enclosures used for storing significant quantities of hazardous substances or mixtures. Stores of several hazardous substances and mixtures can be indicated by the warning sign for general danger. All labels and signs have to be positioned near the storage area or on the door leading to the storage room, as appropriate.

Chemical Packaging at Workplaces

Directive 98/24/EC does not set specific requirements regarding the packaging of chemicals at workplaces to be complied with by employers. Contrary to the labeling requirements, Directive 98/24/EC does not refer to the packaging provisions of the CLP Regulation. However, as a general rule, employers have to ensure that the risk from a hazardous chemical agent to the safety and health of employees at work is eliminated or reduced to a minimum.

This includes, for example, the requirements for employers to ensure that only adequate equipment and material is used, so as to avoid and minimize the release of hazardous chemical agents which may present a risk to employees' safety and health at the workplace.

Safety Data Sheets

Regulation EC/1907/2006 (REACH)

Regulation EC/1907/2006 regulates the Registration, Evaluation, Authorization and Restriction of Chemicals, commonly referred to as the “REACH Regulation.’. The Regulation defines the EU-wide requirements on safety data sheets (SDSs).

SDSs are written documents providing information on chemical products, to help their users identify the risks they can potentially exposed to when using, handling, storing and/or transporting them. They also provide emergency measures in case of accident.

The REACH Regulation requires every supplier of a substance or mixture to provide the recipient of the substance or mixture with a safety data sheet (SDS). SDSs must be dated and contain the following 16 headings:

  • Identification of the substance/preparation and of the company/undertaking
  • Hazards identification
  • Composition/information on ingredients
  • First-aid measures
  • Fire-fighting measures
  • Accidental release measures;
  • Handling and storage;
  • Exposure controls/personal protection
  • Physical and chemical properties
  • Stability and reactivity
  • Toxicological information
  • Ecological information
  • Disposal considerations
  • Transport information
  • Regulatory information
  • Other information

Guidance on the content and format of SDSs is provided in Annex II to the REACH Regulation.

SDSs must be provided free of charge on paper or electronically no later than the date on which the substance or mixture is first supplied.

SDSs must be updated:

  • As soon as new information which may affect the risk management measures, or new information on hazards becomes available
  • Once an authorization for a substance included in the REACH Authorisation List has been granted or refused
  • Once a restriction has been imposed.

Updated SDSs must be supplied free of charge on paper or electronically to all former recipients to whom they have supplied the substance or preparation in the preceding 12 months.

SDSs do not need to be supplied where hazardous substances or mixtures are provided to the general public, if they are provided with sufficient information (such as labeling) to undertake necessary measures regarding the protection of human health, safety and the environment. In this case SDSs need to be supplied upon request of a downstream user or distributor.

In accordance with Directive 98/24/EC on the protection of the health and safety of employees from the risks related to chemical agents at work and Article 35 of the REACH Regulation, employers have to ensure that employees and/or their representatives have access to any SDS provided by the supplier. This should ensure that employees and their representatives have appropriate information regarding the substances or mixtures they use at the workplace or to which they may be exposed to in the course of their work.

Occupational Exposure Limit Values

The setting of occupational exposure limit values (OELVs) is part of the EU strategy to protect employees from exposure to chemical agents at the workplace. In order to ensure that the Commission's proposals reflect the most recent scientific and technical data, the Scientific Committee for Occupational Exposure Limits (SCOEL) assists the Commission. OELVs can be recommended as:

  • An eight-hour time-weighted average (TWA - 8h);
  • Short-term exposure limits (STEL); and/or
  • Biological limit values (BLVs).

EU law distinguishes between two different OELVs: binding OELVs and indicative OELVs.

Binding OELVs

Binding OELVs reflect scientific data as well as socio-economic considerations. Member States must transpose them into national law as a minimum requirement.

For any chemical agent for which a binding OELV is established at EU level, Member States must establish a corresponding national binding OELV which can be stricter, but cannot exceed the EU limit value.

Binding OELVs exist for the following 5 substances:

  • Inorganic lead and its inorganic compounds (Directive 98/24/EC, Annex I), OELV is 0.15 mg/m3 over 8h (TWA)
  • Benzene (Directive 2004/37/EC) OELV is 3.25 mg/m3 or 1 ppm (ml/m3)
  • Hardwood dust (Directive 2004/37/EC) OELV is 5 mg/m3
  • Vinyl chloride (Directive 2004/37/EC) OELV is 7.77 mg/m3 or 3 ppm (ml/m3), and
  • Asbestos (Directive 2009/148/EC) is 0.1 fibres/m3 over 8h (TWA).

Indicative OELVs

Indicative OELVs are adopted by the European Commission after obtaining the opinion of a committee consisting of representatives of the Member States and headed by a representative of the Commission.

For any chemical agent for which an indicative OELV is established at EU level, Member States must establish a national OELV, taking into account the indicative OELV adopted at EU level:

  • Directive 2000/39/EC established a 1st list of 63 indicative occupational exposure limit values in implementation of Directive 98/24/EC.
  • 2nd list of indicative occupational exposure limit values was adopted in Directive 2006/15/EC, which amended Directive 2000/39/EC as far as certain substances are concerned, and introduced 33 additional substances with indicative OELVs.
  • 3rd list of indicative occupational exposure limit values was adopted with Directive 2009/161/EU, which introduced 19 new substances with indicative OELVs, such as mercury, vinyl acetate, and bisphenol A.
  • 4th list of indicative occupational exposure limit values was adopted with Directive EU/2017/164, which introduced IOELVs for 25 chemical agents, as well as stricter IOELVs for 5 chemical agents (for example, glycerol trinitrate, tetraethyl orthosilicate and nitroethane).This list has not been transposed yet in all EU Member States (despite the deadline of 21 August 2018 having passed).

Links to OELVs of fifteen Member States and certain non-Member States are available on the website of the European Agency for Safety and Health and Work (EU-OSHA): http://osha.europa.eu/en/topics/ds/oel