Toggle high contrast

Controlling toxic chemicals: one limit, many risks

Issue date

controlling toxic chemicals

the TUC response to the Health and Safety Commission’s discussion document on the Occupational Exposure Limits (OEL) framework (DDE19)

The TUC represents working people in Great Britain. This response is based on discussions among the health and safety specialists of the 73 unions affiliated to the TUC which between them have about 6.75 million members.

Working people are exposed to health risks due to toxic chemicals in all sectors of industry, and especially in chemicals manufacturing. Other key sectors where exposure gives cause for concern are construction, distribution, manufacturing generally and printing. The TUC has particularly been advised by the national health and safety specialists of the GMB, GPMU, NUMAST, Prospect, TGWU, UCATT and USDAW.

The TUC wants to see chemical risks properly managed in workplaces, so that working people and those members of the public who might be exposed are protected as far as practicable. That requires a workable, readily understood and above all easily enforceable system for controlling chemical exposure in the workplace. We welcome the regulation of toxic chemicals in the EU Chemical Agents Directive and the GB Control of Substances Hazardous to Health Regulations, as well as the recent COSHH Essentials. The simplification of control mechanisms (without loss of protection) in the latter is an important part of proper risk management, and for that reason we also welcome the HSC Discussion Document to which this is a response.

Drawing on the experience of workplace union safety reps, the TUC believes that the main problems with the existing systems of control are as follows:

  • inadequate use of the hierarchy of control, so that instead of substitution and elimination of toxic substances being the first step and personal protective equipment the last, employers act as if the hierarchy was reversed;
  • inadequate information for end users (ie workers) about the risks associated with toxic substances and the appropriate precautionary methods, and inadequate safety data sheets on which such information should be recorded (the TUC believes that safety reps should have a legal right to obtain the safety data sheets from manufacturers and suppliers where they cannot obtain them from their employer);
  • failure to measure the levels of exposure and therefore a failure to follow the rules about occupational exposure levels;
  • a general lack of understanding about what the meaning and application of the two control levels used in British law (Maximum Exposure Limits and Occupational Exposure Standards) which makes it impossible for such employers to demonstrate that they have carried out the legal requirement of 'adequate control'; and
  • a failure by inspectorates to enforce the laws on toxic substances vigorously enough, mostly due to lack of resources, but also because of uncertainties about what is required under the law.

The TUC has therefore been arguing for a better approach to chemical limit values for some years, and we have in particular been open to the idea that the two-tier system in use in Great Britain leads to confusion among duty-holders, uncertainty among enforcers and increased risks to workers and the public. The simplification of deciding which control systems to use which is the base of COSHH Essentials is along these lines.

We therefore support the option suggested by the HSC (option 2) of good practice control advice supported by a single type of limit.

In response to the key questions posed by the HSC Discussion Document (reproduced as an annex), the TUC agrees with the concerns expressed about the current system - our main concerns are set out in the preceding section - and we therefore agree with the need for change.

We have in the past raised concerns about OESs being considered as 'safe' standards of exposure in its guidance to the COSHH regulations from the outset. We have also had concerns about the reliance on the ACGIH TLV list for the majority of OESs. In some of the few examples unions have encountered where OESs are referred to by employers, MELs have also been treated as 'safe' exposure levels and the duty to reduce exposure as far below the MEL as is reasonably practicable has often been overlooked.

Logically this must mean that Option 1 in the proposals for change (tinkering with the present system) is a non-starter. The problems with the present system extend well beyond the indicative criteria involved in the limit setting process.

We also have some other concerns about chemical limit values which impact particularly on the limit setting system.

women’s health

Women workers in a number of industries do jobs which have been generally done by men. The standards set may not always be appropriate, or take account of, such issues as the differences between men’s and women’s bodies and requirements. A TUC survey of women safety reps published in 1998 showed that a significant portion of the sample - 25% - identified as a health and safety problem exposure to chemicals and biological agents. Furthermore, as most women have responsibility for unpaid work at home, they are likely to be doubly exposed - to a range of chemicals and other dangerous substances contained in household cleaning agents. Any consideration of the framework for Occupational Exposure Limits must therefore take women at work into account.

safety reps

The presence of safety reps has been shown to reduce significantly the incidence of serious injuries and accidents. Union safety reps play a crucial role in workplace health and safety. Whilst responsibility for safety at work is the employer’s, we urge that the HSC to highlight the need to consult safety repsin a prominent place all their publications, including EH40 and Chemical Hazard Alert Notices (as already included, for example, in the Control of Lead at Work and the forthcoming Control of Asbestos at Work ACoPs).

key objectives for a new approach

The shift in focus to applying principles of good occupational health/hygiene practice with limit values as a 'backstop' is welcome and is, in fact, closer to the practice followed by many of the more responsible employers at present. We therefore support the objectives set out in the Discussion Document.

The TUC supports option 2, good practice control advice supported by a single type of limit. The aim of the COSHH Regulations is to prevent exposure to hazardous substance or to control exposure to reasonably practicable levels. It is not to provide a logically consistent academic framework for precise setting of OESs.

The control limit should be seen as the maximum limit, breach of which would mean enforcement action. We consider that there will be a health benefit under option 2 becausewe would hope that employers’ better knowledge of the control system will reduce exposure.

Carcinogens

Some unions would have preferred option 2A, which would add a list of recognised carcinogens, giving them an extra focus. This is partly because of the importance of carcinogens as a cause of death, and partly because it is inherently impossible to set a 'safe' level of exposure, ie one where there is no possibility of a disease resulting.

Unions have long held the policy that cat1 and cat2 carcinogens should be removed from use in the workplace wherever possible. Where this cannot be achieved on technical grounds we would expect the tightest possible controls to reduce exposure to nil, or an absolute minimum. For this reason a more stringent approach to carcinogens, accommodated within the control system, would be useful.

However, flagging up carcinogens to which the relevant regulation would apply, it is not obvious why there should be a need for a 'two tier' system with a separate list of OELs for substances subject to the Carcinogens Directive. Such a procedure might reintroduce complexity into a simplified system and downplay other important long-term health hazards where safe levels of exposure cannot, inherently, be identified, such as sensitisation, neurotoxicity, hepatotoxicity etc.

Instead, we favour continuing to incorporate more detailed regulation on carcinogens in the revised COSHH Regulation 7. This would be backed up very usefully by a revised EH40-type document that included the proposal for short phrases indicating the key relevant health concern.

Assessing the options against the objectives

The TUC agrees that Table 1 of the Discussion Document adequately assesses the options against the seven objectives for a new system, except in regard to option2A, where we believe that the assessment underplays the added complexity (objective 2) and the risk that other substances will be treated as less of a hazard (objectives 1 and 7).

We believe that all the options would contribute to Revitalising health and safety.

There may well be examples of some substances that are difficult to fit in to any system. But there should be benefits from a system where the setting of limit values is more straightforward and their link to the control regimes required by law is more transparent. The criteria proposed for the setting of limit values appear to be sensible, but the TUC has some reservations which need to be taken into account.

There would need to be some indication in the EH40-style document as to whether the limit had been set under criterion 1 or criterion 2. In addition, it might be advisable to have some simple way of indicating in the case of criterion 2 standards whether the decision was taken because there is a known health effect at levels of exposure below what is reasonably achievable or because there is uncertainty about the health effect or the levels of exposure that cause it.

The use of the phrase 'the evidence available' in criterion 1 is also of concern. It may imply deductions about the likely impact of this substance on health given its components and what is known about their effects, even where there is as yet no evidence about the substance itself. It is essential that the system is able to deal with scientific uncertainty - para 105 of the Discussion Document is crucially important.

In criterion 2, the over-riding consideration must be to set the value at a level at which there is no damage to the health of individuals, with the precautionary principle in mind. There needs also to be a critical appraisal of employer estimations of costs, as these often do not take benefits to the organisation into account.

Decision making

If one of the versions of Option 2 is adopted with the suggested 2-stage criteria for limit setting and the proposed link to COSHH Essentials type guidance, the need for a tripartite body like the HSC Advisory Committee on Toxic Substances (ACTS) will continue to be very important. Even where there are substances where they have less direct involvement in the setting of a standard (where, for example, a European IOELV is transposed directly into the system) such a body will still have an important role to play in considering the appropriate Hazard group and COSHH Essentials/good practice standards.

In practice limits will be arrived at using a combination of the two approaches referred to in the Discussion Document depending on the amount of evidence available, and the level of common agreement amongst expert groups (we do not see the two approaches as being in conflict). We would like to see within any approach more weight given to the experience of workers in using chemicals, and to the symptoms and health effects that they suffer. Reviews of chemicals hazards should look for such examples, and HSE should be actively supporting research that fulfils this aim.

In keeping with the best occupational health/hygiene approach, it would also make sense to integrate COSHH Essentials, good practice and the limit value system. We therefore agree with the proposal that good practice advice should be sourced using COSHH Essentials guidance sheets as the default complemented by substance or process specific sheets as necessary. The proposed approach to integrating COSHH Essentials into the OEL framework is useful.

However, at present all COSHH Essentials guidance is predicated on the Safety Data Sheets required under CHIP Regulations. For many businesses, if they bother about COSHH compliance at all, their first port of call for information will continue to be the SDS rather than the revised EH40 document. There would need to be some attempt to reconcile CHIP requirements with the revised COSHH and EH40 approach. Either suppliers should be expected to include the 'simple description of the main health effects' and the recommended COSHH Essentials Hazard group on their data sheet or the appropriate R-phrases should continue to be listed in EH40 and should form the basis of Hazard group classification for COSHH Essentials purposes.

Secondly, if the single limit value approach was adopted, it seems likely that the old ACGIH TLV limits would have to form the basis for the new limits for a large number of chemicals. Reliance on these limit values as the 'target airborne concentration range' for identifying the appropriate Hazard group may result in a substance being allocated to group that is inappropriate. We have not searched for examples, but do have some concern that there maybe substances that could be classified, for example, as Hazard group B on the basis of a long-standing and out-dated TLV when Group C might be more appropriate and would have been the result purely on an R-phrase based approach.

The possibility of introducing COSHH Essentials type guidance sheets for Hazard group E substances and for processes where the COSHH Essentials approach is not appropriate (such as process-generated fumes) also appears to have benefits. There may even be more novel uses for such an approach. For example, following research that HSE has been doing on very short term, high peak exposures to certain substances (where even a 15-minute STEL limit is not a practical indicator of hazard), it would be possible to produce process-specific guidance for any such substance in the same way.

We also agree that the incorporation of limit values with COSHH Essentials and good practice guidance does appear to provide a more flexible system and recently established OELs (as opposed to old, outdated TLVs) could provide a better means for assigning substances to hazards groups.

Table 4 gives us the information we would like to see in EH 40. However, the problem of looking at EH40 alone is that it deals with single chemicals, whereas most workers’ exposures are likely to be to mixtures of chemicals. Users of EH40 need to be directed towards other generic or sector specific guidance that deals with the work they are involved in. There needs to be an expansion of effort in producing such guidance using HSC industry advisory committees (IACs) and sector groupings, so that identifiable solutions are available to users in as many cases as possible. For many uses it should be possible to point employers towards control sheets that apply directly to them. In many cases this should not require employers to go back to the basics of the classification of substances starting from information on a data sheet. Instead the control sheet itself should be starting point for many users, describing a standard of control for a process that can then form part of the users COSHH assessment, and also provide a set of controls against which users can inspect their own arrangements, identify any shortcomings and take remedial action.

The TUC believes that an electronic package which links together OELs, COSHH Essentials, EH64 and key COSHH guidance would be helpful to most duty holders if it allowed them to get directly to control sheets that apply to them, rather than solely being based on entering information from specific datasheets.

On balance, and in view of practical considerations, the TUC would prefer Option A for dealing with existing OELs, that is, transferring almost all of them into the existing system. Although we sympathise with the view that Option A is the least technically satisfactory solution, as a starting point, t his would be the best way to get the system up and running. Once instituted, we would expect ACTS and HSE to devote more resources to encouraging the development of control solutions, directly or through third parties. Some system would need to be in place to provide quality assurance for control solutions. However the aim must be to have in place many control solutions that reflect the real needs of controlling chemicals in the workplace, rather than having fewer single limits, that are used less and are poorly understood. COSHH, and the control standards within it, must be relevant to the real world of work, and not based on the theoretical world of exposure standards.

Our only comments on the regulatory impact assessments are to draw attention to the TUC’s standing concern that RIAs over-estimate the costs to employers because they are not critical enough of the inadequacy of employer attempts to quantify costs and their tendency to discount in-firm benefits (as well as our objection to quantifying the financial value of human health); and to note that the costs to HSE and local authorities of Options 2 and 2A would be much less than Option 1in terms of inspection and enforcement.

The HSC Discussion Document asked a series of questions, listed below (we have omitted some of the process questions not answered in this submission). Each of the questions is answered in the text above, and in this section, we set out where the answers can be found.

The current system and the need for change

Question 1: Do you agree with these concerns about the current system; and do you have any other concerns about the current system

Question 2: Do you agree with the key objectives for a new approach?

Which option for change?

Question 3: Which of the 3 options for a new approach do you prefer?

Question 5: Is the assessment of the options against the 7 criteria in Table 1 a balanced reflection of the potential of the options?

Question 6: Will the options contribute to Revitalising health and safety as set out in Table 2?

Setting the limits

Question 4: Do you agree with the proposed criteria for setting limits under Options 2 and 2A?

COSHH Essentials

Question 7: Do you support the approach of sourcing good practice using COSHH Essentials guidance sheets as the default, complemented by substance or process specific sheets as necessary?

Question 8: The proposed approach to integrating COSHH essentials into the OEL framework is…..

Other matters

Question 9: Does Table 4 give the information you would like to see in EH40?

Question 10: Would an electronic package linking OELs, COSHH essentials, EH64 and key COSHH guidance would be…

Question 11: Please rank your preferences for dealing with existing OELs (table 5)

Enable Two-Factor Authentication

To access the admin area, you will need to setup two-factor authentication (TFA).

Setup now