Overview of Hazardous Chemicals
There are specific and detailed requirements in relation to chemicals and dangerous substances. Many of these obligations are imposed for the benefit of the public, for reasons of environmental health and safety, as well as the safety of employees. There are more detailed requirements in relation to certain chemicals and materials including carcinogens, lead and asbestos.
General health and safety at work requirements also apply to the use of chemicals and dangerous substances in the workplace. The obligation to make a risk assessment applies. Its findings must be acted on and implements. In addition, many of the specific provisions on chemicals and dangerous substances are directed at employers.
Employers must put in place risk prevention and control measures in order to ensure that the risk to safety and health from chemicals is eliminated insofar as reasonably practicable or reduced to acceptable levels. Chemical substances include a wide range of things, including common adhesives, cleaning materials, insecticides and paints. They also include the by-products of certain processes. Some are naturally occurring substances.
The Chemical Agent Regulations apply to a range of chemicals that may pose a risk to human health and safety. A chemical agent in this context, includes any chemical or compound, on its own, mixed, as it occurs in the natural state or as produced. They include those used or released as waste by any activity, whether or not produced intentionally, and whether or not placed on the market.
Chemical agents cover a very wide range of substances. They may be in liquid, vapour, solid or gaseous form. Many are commonly employed in industry. Chemical agents also include,, but are not limited to common dangerous substances, such as leads, carcinogenic material, asbestos and other substances in respect of which there are more detailed legislative obligations.
Work activity involving chemical agents includes any work where such agents are used or intended to be used or processed, including their production, handling, storage, transport or disposal.
The Chemical Agents Regulations apply principally to hazardous chamical agents which are present or may be present in the workplace. Hazardous chemical agents include in particular, but are not limited to those classified as such under the legislation. They are those which present a risk to the health and safety of employees or are identified as such in the schedules to the EU Directives and the regulations. The HSA has published guidelines on the regulations, which assist in determining whether substances are hazardous.
Employers must determine and assess the risk of hazardous chemical agents. They must determine whether hazardous substances are present and measure their degree and extent. They must identify their properties and consider the extent of exposure to the substances in the workplace. The risk assessment must be renewd and updated from time to time.
There are maximum exposure limits. Employers are obliged to prevent and control exposures with reference to these. The measurement of exposure to hazardous chemical agents is therefore required. Employers must put in place management and safety controls in order to comply with the occupational exposure limits. Specific countermeasures are required.
Risk Assessment re Chemicals
A very specific and comprehensive risk assessment is required. An estimate must be made of exposure. It must be considered with reference to the applicable exposure value limits. The risk assessment must be revised and renewed as circumstances change and by using changed technology.
Regular assessment and measurement must be taken of exposures in accordance with internationally accepted standards. If excessive exposure is found, immediate steps must be taken to stop and remediate it.
There are different exposure limits for each agent with reference to certain standard periods of time (usually eight hours) and other reference periods and the quantum of particular harmful elements present. Some chemical agents are outside the scope of the Chemical Agents regulations. In this case, the obligations in relation to control and exposure must be undertaken by reference to international exposure standards.
The required control measures are very wide and go to all aspects of the physical and organisational nature of processes in the workplace. The HSA has published guidelines to assist employers and others.
Employers’ Obligations Regarding Hazardous Chemicals I
It is the duty of every employer to ensure that the risk to the safety and health of employees from hazardous chemical agents is eliminated so far as is reasonably practicable or reduced to a minimum by application of the following measures –
- avoidance of the use of a hazardous chemical agent or process by replacing it by one which under its condition of use is not hazardous or less hazardous than the hazardous chemical agent or process in use at the time of the risk assessment,
- design of work processes, engineering control measures and the use of adequate equipment and materials so as to avoid or minimise the release of hazardous chemical agents into the place of work,
- the use of appropriate systems for the extraction of hazardous chemical agents at source,
- where exposure cannot be prevented by other means, application of individual protective measures including personal protective equipment in addition to the above measures.
Employers’ Obligations Regarding Hazardous Chemicals II
Where as a result of any measurement an occupational exposure limit value is found to be exceeded, the employer must take immediate steps to remedy the situation in accordance with the above requirements.
The employer has a duty
- to ensure that any engineering control measure, personal protective equipment or other means or facility provided pursuant to these Regulations is properly maintained and used or applied, as the case may be;
- to carry out on a regular basis, and when any change occurs in the conditions which may affect employees’ exposure to hazardous chemical agents, measurements of hazardous chemical agents in accordance with an internationally validated procedure and in particular in relation to any occupational exposure limit values listed in an approved code of practice, unless it can be demonstrated that, in accordance with this Regulation, adequate prevention and protection measures have been taken to prevent risk;
- to ensure that an occupational exposure limit value set out in a relevant code of practice shall not be exceeded when measured or calculated in relation to a reference period listed in the relevant code of practice;
Further Duties re Hazardous Chemicals
It is also the duty of every employer:
- to ensure that the risk from hazardous chemical agents to the safety and health of employees arising from the physico-chemical properties of such agents is eliminated so far as is reasonably practicable or reduced to a minimum by the design and organisation of the workplace to ensure their safe storage, handling and segregation, taking account of the incompatibility of certain hazardous chemical agents;
- to take the following measures; prevent the presence of hazardous concentrations of flammable substances or hazardous quantities of chemically unstable substances, or where the nature of the work does not allow that; avoid the presence of ignition sources which could give rise to fires and explosions or adverse conditions which could cause chemically unstable substances or mixtures of substances to give rise to harmful physical effects, and mitigate the detrimental effects to the safety and health of employees in the event of fire or explosion due to the ignition of flammable substances or harmful physical effects arising from chemically unstable substances or mixtures of substances;
- to ensure that work equipment and protective systems comply with the relevant provisions laid down in the European Communities (Equipment and Protective Systems Intended for use in Potentially Explosive Atmospheres) Regulations
- to ensure that the technical measures or organisational measures or both put in place to eliminate the risk from hazardous chemical agents to the safety and health of employees arising from their physico-chemical properties take account of and are consistent with the equipment group categorisation specified in those regulations
- to provide sufficient control of plant, equipment and machinery or provision of explosion suppression equipment or explosion pressure relief arrangements.
Duties of employees.
It is the duty of every employee –
- to make full and proper use of any control measure, personal protective equipment or other thing or facility provided under these Regulations,
- to take all reasonable steps to ensure such control measure, equipment, thing or facility is returned after use to any accommodation provided for it, and
- if he or she discovers any defect therein, to report it forthwith to his or her employer.
Health Surveillance re Hazardous Chemicals
Employers must undertake health surveillance where there is a risk from exposure. Where certain limits are exceeded, health surveillance is mandatory. Health surveillance may include biological monitoring, questions, medical inspection, enquiries and examinations. The results of testing must be made available to the employee concerned.
Health surveillance should be undertaken by or under the supervision of a qualified medical practitioner. The use of a medical practitioner is not essential in all circumstances, but it is generally desirable. It is mandatory in some circumstances. Health surveillance, including medical surveillance, is appropriate
- where the exposure is such that there is an identifiable risk related to the exposure;
- where there is the likelihood that a disease or effect may occur under certain conditions and there are valid low-risk techniques available for detecting the disease or effect.
Records of surveillance must be kept on each individual to whom the regulations apply. There are provisions dealing with confidential medical information. Particulars of what is required for each health record is set out. The regulations contemplate that records be kept for prolonged period. Longer periods are mandatory in respect of carcinogens and asbestos.
Action on Foot of Surveillance I
It is the duty of any occupational healthcare professional under whose responsibility an employee receives health surveillance
- to propose any protective or preventative measures necessary in respect of any individual employee;
- to give access to an employee, upon request by that employee, to his or her own health surveillance records,
- to allow access to individual confidential medical records to a designated occupational medical advisor,
- to take account of the recommendations of an approved code of practice.
Action on Foot of Surveillance I
Where as a result of health surveillance an employee is found to have an identifiable disease or adverse health effect which is considered by an occupational healthcare professional or occupational medical advisor to be the result of exposure at work to a hazardous chemical agent, or a biological limit value is found to be exceeded, the occupational healthcare professional or occupational medical advisor shall inform the employee of the result which relates to him or her personally, including information and advice regarding such health surveillance which he or she should undergo following the end of the exposure, and shall inform the employer of the outcome of the health surveillance.
It shall be the duty of the employer to ensure that, where an employee is subject to health surveillance in accordance with this Regulation and an occupational healthcare professional or occupational medical advisor has made an entry in the individual’s health record and has certified to the employer that, in his or her professional opinion, that employee should not be engaged in work which exposes him or her to that substance or that he or she should only be engaged under conditions specified in the record, that the employee is not engaged in such work except in compliance with the conditions, if any, specified in the health record, unless that entry has been cancelled by the responsible health care professional or occupational medical advisor.
Disease / Effect
Where as a result of health surveillance in accordance with this Regulation an employee is found to have an identifiable disease or adverse health effect which is considered by an occupational healthcare professional or occupational medical advisor to be the result of exposure at work to a hazardous chemical agent or a biological limit value is found to be exceeded, the employer shall:
- review the risk assessment made;
- review the measures provided to eliminate or reduce the risk;
- take account of the advice of the occupational healthcare professional or an Inspector in implementing any measures required to eliminate or reduce risk, including the possibility of assigning the affected employee to alternative work where there is no risk of further exposure, and
- arrange continued health surveillance and provide for a review of the health status of any worker who has been similarly exposed and take account of the recommendations of the occupational healthcare professional or an occupational medical advisor regarding further medical examination.
Information and Training re Hazardous Chemicals I
Employers must provide training and information to employees. Training must be given in relation to the appropriate procedures and precautions.
Hazards must be clearly identified. The employer must ensure that all containers and pipes used at work for hazardous chemical agents are clearly labelled or identified as to the nature of their contents and associated hazards.
Information must be given on risk to health and safety, exposure limits and other matters.
Health surveillance information must be given to the employee concerned.
It is the duty of every employer to ensure that consultation as regards the requirements of the Regulations takes place with employees or their safety representatives or both. The results of the risk analysis must be shared.
Information and Training re Hazardous Chemicals II
The employer is to consult with the representatives of the employees regarding the implementation of the requirements. The employer shall ensure that employees and their safety representatives or both are provided with –
- the data used to carry out, and obtained as a result of, the risk assessment and are further informed whenever a major alteration at the workplace leads to a change in these data,
- information on the hazardous chemical agents occurring in the workplace including the identity of those agents, the risks they present to the safety and health of employees, relevant occupational exposure limit values and other legislative provisions which apply to those agents,
- training and information on appropriate precautions and actions which should be taken in order to safeguard themselves and other employees at the workplace, and
- access to any safety data sheet.
Particular Risks I
There are further more specific requirements in respect of the following;
- lead and its compounds.
Special further requirements apply to certain risk groups such as pregnant employees and those involved in the storage and transport of dangerous substances.
There are carcinogen regulations, which make specific provision for chemicals with cancer-causing properties. They are identified in the schedules for the regulation. A prior risk assessment is required. Steps must be taken to eliminate or minimise or maintain exposure within safe limits.
Particular Risks II
There are occupational exposure limits in respect of certain carcinogens. Particular obligations apply with respect to certain substances and activities and the manner in which they may be used. Not all carcinogens are covered. This does not limit the employer’s obligations in respect of those not specifically set out.
There are specific provisions in the chemical agents regulations regarding lead and certain of its compounds. The legislation covers activities which may involve the risk of exposure to lead. The regulations apply to exposure to lead and related compounds, by way of contact or absorption.
Contact must be limited to minimal levels. Absorption must be monitored. Mandatory medical surveillance is required in respect of certain limits.
References and Sources
Safety, Health and Welfare and at Work Law in Ireland 2nd Ed 2008 Byrne Ch 11
Safety & Health Acts Consolidated & Annotated 2013 Byrne
Health, Safety & Welfare Law in Ireland 2012 Kinsella Ch 3
Health & Safety: Law and practice 2007 Shannon
Health & Safety at Work 1998 Stranks Ch.4
Civil Liability for Industrial Accidents 1993 While
The Health and Safety Authority www.hsa.ie
Health and Safety Executive (UK) www.hse.gov.uk
Tolleys Health and safety at work, 2017 29th ed Bamber,
Corporate liability: work related deaths and criminal prosecutions 3rd ed. Author FORLIN, G.
Health and safety at work: European and comparative perspective Author ALES, E., ed.
Health and Safety Law 5th Ed 2005 Stranks
Principles of Health and Safety at Work (8th ed) Holt, Allan St. John; Allen, Jim;
The Law of Health and Safety at Work 2014/15 (23rd ed) Moore, Rachel; Winter, Hazel;
Safety, Health and Welfare at Work Act 2005
Safety, Health and Welfare at Work (General Application) Regulations 2007 (S.I. No. 299 of 2007)
Safety, Health and Welfare At Work (Chemical Agents) Regulations, 2001 S.I. No. 619/2001 –
Safety, Health and Welfare at Work (Chemical Agents) (Amendment) Regulations 2015, S.I. No. 623 of 2015