The Merchant Shipping and Fishing Vessels (Health and Safety at Work) (Chemical Agents) Regulations 2010

Made: 11th February 2010

Laid before Parliament: 18th February 2010

Coming into force: 6th April 2010

The Secretary of State makes the following Regulations in exercise of the powers conferred by section 2(2) of the European Communities Act 1972 and sections 85(1)(a) and (b), (3), (5) to (7) and 86(1) of the Merchant Shipping Act 1995 (“the Act”) as read with paragraph 1A of Schedule 2 to the European Communities Act 1972 .

The Secretary of State is a Minister designated for the purpose of section 2(2) of the European Communities Act 1972 in relation to measures relating to the safety of ships, and the health and safety of persons on them.

These Regulations make provision for a purpose mentioned in section 2(2) of the European Communities Act 1972 and it appears to the Secretary of State that it is expedient for certain references to provisions of Council Directive 98/24/EC on the protection of the health and safety of workers from the risks related to chemical agents at work (fourteenth individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC) to be construed as references to those provisions as amended from time to time.

In accordance with section 86(4) of the Act the Secretary of State has consulted the persons referred to in that section.

PART 1 — GENERAL

Citation and commencement

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These Regulations may be cited as the Merchant Shipping and Fishing Vessels (Health and Safety at Work) (Chemical Agents) Regulations 2010 and shall come into force on 6th April 2010.

Interpretation

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• (1) In these Regulations—

• “the Act” means the Merchant Shipping Act 1995;

• “binding biological limit value” in relation to a chemical agent means the binding biological limit value established for that agent under Annex II to the Directive;

• “binding occupational exposure limit value” in relation to a chemical agent means any binding occupational exposure limit value established for that agent in Annex I to the Directive;

• “chemical agent” means any chemical element or compound, on its own or admixed, as it occurs in the natural state or as produced, used or released, including release as waste, by any work activity, whether or not produced intentionally, and whether or not placed on the market;

• “the CLP Regulation” means Regulation (EC) No 1272/2008 of the European Parliament and of the Council of 16 December 2008 on classification, labelling and packaging of substances and mixtures, amending and repealing Directives 67/548/EEC and 1999/45/EC and amending Regulation (EC) No 1907/2006, of which Articles 6(5), 11(3), 12, 14, 18(3)(b), 23, 25 to 29, 35(2) second and third sub-paragraphs and Annexes I to VII are to be read as amended from time to time;

• “the Directive” means Council Directive 98/24/EC on the protection of the health and safety of workers from the risks related to chemical agents at work (fourteenth individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC) , as amended by Directive 2014/27/EU of the European Parliament and of the Council of 26 February 2014 amending Council Directives 92/58/EEC, 92/85/EEC, 94/33/EC, 98/24/EC and Directive 2004/37/EC of the European Parliament and of the Council in order to align them to Regulation (EC) No 1272/2008 on classification, labelling and packaging of substances and mixtures;

• “document EH40” means the document by that number published by the Health and Safety Executive from time to time ;

• “employer” means a person by whom a worker is employed on a ship under a contract of employment;

• “exposure” means exposure at work to chemical agents;

• “Government ship” has the meaning given by section 308(4) of the Act;

• “the General Duties Regulations” means the Merchant Shipping and Fishing Vessels (Health and Safety at Work) Regulations 1997 ;

• “hazardous chemical agent” means—any chemical agent which meets the criteria for classification as hazardous within any physical and/or health hazard class laid down in Annex I to the CLP Regulation, whether or not that chemical agent is classified under that Regulation; orany chemical agent which, whilst not meeting the criteria for classification as hazardous in accordance with sub-paragraph (a) may, because of its physico-chemical, chemical or toxicological properties and the way it is used or is present on the ship, presents a risk to the safety and health of workers, including any chemical agent that is assigned a national occupational exposure limit value;

• “health and safety” includes the occupational health and safety of persons whilst on board a ship and whilst boarding or leaving the ship;

• “health surveillance” means the assessment of an individual worker to determine the state of health of that individual, as related to exposure to specific chemical agents at work;

• “MCA” means the Maritime and Coastguard Agency, an executive agency of the Department for Transport;

• “Merchant Shipping Notice” means a notice described as such and issued by the MCA;

• “national occupational exposure limit value” in relation to a chemical agent means any workplace exposure limit established for that agent in document EH40;

• “occupational exposure limit value” in relation to a chemical agent means the binding occupational exposure limit value or the national occupational exposure limit value established for that agent, whichever is the more stringent;

• “the REACH Regulation” means Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing a European Chemicals Agency;

• “regulation 6(2) assessment” has the meaning given by regulation 6(7);

• “representative” in relation to workers means any person lawfully elected, chosen or designated to represent the workers in regard to issues about the health and safety of workers at work;

• “safety data sheet” means a safety data sheet within the meaning of Article 31 of and Annex II to the REACH Regulation;

• “ship” includes hovercraft;

• “substance” means any natural or artificial substance whether in solid or in liquid form or in the form of a gas or vapour and includes micro-organisms;

• “surveyor of ships” has the meaning given by section 256(9) of the Act; and

• “United Kingdom ship” means a ship which—is a United Kingdom ship within the meaning of section 85(2) of the Act ;is a Government ship; oris a hovercraft registered under the Hovercraft Act 1968 .

• (2) In these Regulations any reference to an Annex to the Directive is a reference to that Annex as it had effect immediately before IP completion day.

• (3) Subject to paragraph (1) and regulation 3, words and expressions used in these Regulations have the same meaning as in the Directive.

• (4) In the application of these Regulations to a hovercraft, a reference to the master of a ship includes a reference to the captain of that hovercraft.

Meaning of “worker”

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• (1) In these Regulations, “worker” means a person employed under a contract of employment, and includes a trainee or apprentice other than a person who is training in a vessel which is being used—

• (a) to provide instruction in the principles of responsibility, resourcefulness, loyalty and team endeavour and to advance education in the art of seamanship, or

• (b) to provide instruction in navigation and seamanship for yachtsmen,

and which is operating under a relevant code.

• (2) In paragraph (1) “a relevant code” means—

• (a) the Large Commercial Yacht Code as set out in Merchant Shipping Notice No. 1792(M) – Edition 2;

• (b) the Code of Practice for the Safety of Small Commercial Sailing Vessels ;

• (c) the Code of Practice for the Safety of Small Commercial Motor Vessels ; or

• (d) the Code of Practice for the Safety of Small Vessels in Commercial Use for Sport or Pleasure Operating from a Nominated Departure Point .

• (3) In paragraph (2) each reference to a Code includes a reference to any document containing an amendment or replacement of that Code which is considered by the Secretary of State to be relevant from time to time and is specified in a Merchant Shipping Notice.

Application

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• (1) Without prejudice to regulation 5 of the General Duties Regulations, and subject to paragraphs (2) to (4), these Regulations apply in relation to —

• (a) hazardous chemical agents that are or may be present on United Kingdom ships, giving rise to risks or the likelihood of risks to the health and safety of workers on those ships whether as a result of that presence or as a result of any work activity involving such agents; and

• (b) United Kingdom ships on which such agents are or may be present.

• (2) Where—

• (a) a ship is being used in the course of public service activities or activities for the purpose of the civil protection services, and

• (b) characteristics peculiar to those activities inevitably conflict with a provision of these Regulations,

that provision does not apply in relation to that ship to the extent of that conflict.

• (3) To the extent that a provision of these Regulations does not apply in relation to a ship because of paragraph (2) there is in relation to that ship a duty on the employer to ensure, so far as is reasonably practicable, the health and safety of workers who are or who are likely to be exposed to risks from chemical agents as a result of their work.

• (4) This regulation (other than paragraph (1)) and regulations 5, 19 and 21 apply where hazardous chemical agents are present or may be present on ships other than United Kingdom ships which are for the time being in United Kingdom waters giving rise to risks or the likelihood of risks to the health and safety of workers on those ships, whether as a result of that presence or as a result of any work activity involving such agents.

• (5) In paragraph (2)—

• (a) “civil protection services” includes the fire and rescue and ambulance services and search and rescue services provided by any other person; and

• (b) “public service activities” includes the activities of the armed forces, HM Coastguard, HM Revenue and Customs, immigration officers, police, prison officers and the security and intelligence services.

Application of related legislation

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• (1) The provisions of the General Duties Regulations continue to apply to activities to which these Regulations apply, where these regulations contain more stringent or specific provisions then such provisions apply.

• (2) These Regulations apply without prejudice to—

• (a) any provisions for the protection of workers from ionising radiation;

• (b) any more stringent or specific provision contained in the Merchant Shipping and Fishing Vessels (Health and Safety at Work) (Carcinogens and Mutagens) Regulations 2007 ; or

• (c) any more stringent or specific provision relating to the transport of hazardous chemical agents by water contained in the IMDG Code, the IBC Code, the IGC Code, the European Agreement concerning the International Carriage of Dangerous Goods by Inland Waters or the Regulation for the Carriage of Dangerous Substances on the Rhine .

• (3) In this regulation—

• (a) “IBC Code” and “IGC Code” have the same meaning as in the Merchant Shipping (Prevention of Pollution from Noxious Liquid Substances in Bulk) Regulations 2018; and

• (b) “IMDG Code” has the same meaning as in the Dangerous Goods in Harbour Areas Regulations 2016.

• (4) These Regulations do not apply to activities to which the Control of Substances Hazardous to Health Regulations 2002 or the Control of Substances Hazardous to Health Regulations (Northern Ireland) 2003 apply.

PART 2 — DUTIES OF EMPLOYERS AND OTHERS

Assessment of health risks

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• (1) In carrying out the assessment required by regulation 7 of the General Duties Regulations, the employer shall first determine whether hazardous chemical agents are present.

• (2) If the employer determines that hazardous chemical agents are present the employer shall then assess any risk to the health and safety of workers arising from the presence of those agents, taking into consideration—

• (a) their hazardous properties;

• (b) information on health and safety provided by the supplier;

• (c) the level, type and duration of exposure;

• (d) the circumstances of work involving such agents, including their amount;

• (e) the occupational exposure limit values and binding biological limit values relevant to those agents;

• (f) the effect of preventive measures taken or to be taken; and

• (g) where available, the conclusions to be drawn from any health surveillance already undertaken.

• (3) The employer shall obtain additional information which is needed for the regulation 6(2) assessment from the supplier of each chemical agent concerned or other readily available sources ....

• (4) The regulation 6(2) assessment—

• (a) shall identify the measures taken in accordance with regulations 7 and 8;

• (b) shall be documented in a suitable form;

• (c) may include a justification by the employer that the nature and extent of the risks related to chemical agents make a further detailed risk assessment unnecessary;

• (d) shall be kept up-to-date, particularly if there have been significant changes which could render it out-of-date, or when the results of health surveillance show it to be necessary;

• (e) shall cover activities such as maintenance, in respect of which it is foreseeable that there is a potential for significant exposure, or which may result in deleterious effects to health and safety for other reasons, even after the taking of all technical measures; and

• (f) in the case of activities involving exposure to several hazardous chemical agents, shall include an assessment on the basis of the risk presented by all such chemical agents in combination.

• (5) In the case of a new activity involving hazardous chemical agents, the employer shall ensure that work does not start until a further regulation 6(2) assessment of the risk of that activity has been made and any preventive measures identified have been implemented.

• (6) The employer shall take into account the results of the procedures referred to in regulation 8(7) and (8) in carrying out the obligations imposed, or resulting from, this regulation.

• (7) An assessment carried out in accordance with paragraph (2), whether for the first time or by way of renewal, is in these Regulations called a regulation 6(2) assessment.

General principles for prevention of risks

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• (1) In carrying out the duty of an employer under regulation 5 of the General Duties Regulations the employer shall eliminate or reduce to a minimum risks to the health and safety of workers at work involving hazardous chemical agents—

• (a) through the design and organisation of systems of work on the ship;

• (b) by taking the measures specified in paragraph (2); and

• (c) by taking into account the results of health surveillance undertaken under regulation 12.

• (2) The measures referred to in paragraph (1)(b) are—

• (a) the provision of suitable equipment for work with chemical agents and maintenance procedures which ensure the health and safety of workers at work;

• (b) reducing to a minimum the number of workers exposed or likely to be exposed;

• (c) reducing to a minimum the duration and intensity of exposure;

• (d) appropriate hygiene measures;

• (e) reducing the quantity of chemical agents present on the ship to the minimum required for the type of work concerned; and

• (f) suitable working procedures, including arrangements for the safe handling, storage and transport on the ship of hazardous chemical agents and of waste containing such agents.

Specific protection and prevention measures

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• (1) This regulation does not apply where the results of the regulation 6(2) assessment reveal only a slight risk to the health and safety of workers and the measures taken in accordance with regulation 7 are sufficient to reduce that risk.

• (2) The employer shall ensure that the risk from a hazardous chemical agent to the health and safety of workers at work is eliminated or reduced to a minimum by taking the measures specified in paragraphs (3) to (5).

• (3) The employer shall, wherever practicable, avoid the use of a hazardous chemical agent by replacing it with a chemical agent or a substance or a process which is not hazardous or less hazardous to workers' health and safety.