Revised Construction (Design and Management) Regulations (CDM) which came into force in April 2015 have placed much greater emphasis on the requirements of welfare facilities on construction sites.
The new regulations require all sites, regardless of size, to ensure that the facilities on site are appropriate for the type of work taking place and there are enough for the number of workers. The legal responsibility of these regulations is shared between the client and contractor. If a project involves more than one contractor, the responsibility lies jointly with the client and principal contractor.
The client needs to include details of the welfare arrangement in their pre-construction information, they must also ensure construction work does not start unless they are satisfied that the correct welfare facilities are in place.
The regulations state that if a construction project is on or next to the client’s premises and permission has been granted, then those facilities can be used, otherwise portable amenities should be set up by contractors.
The positioning of welfare facilities should be carefully considered, they will need to be provided at a central location that is accessible within a reasonable distance.
In order to comply with the revised regulations clients and contractors should ensure that from the first day on site workers can easily access;
clean drinking water;
washing facilities – hot and cold running water, soap or other cleaning agents, and towels or other methods of drying hands;
hot water ; and
toilets – effective ventilation, separate male and female facilities where possible, otherwise lockable toilets.
There also needs to be suitable facilities for taking breaks, having meals, and for storing and changing clothes.
The Health and Safety Executive have published the latest frequently asked questions regarding CDM, which can be viewed here.
When running your business you’ll inevitably use some water. Much of this may be in the same way that you use water at home ‘ for washing up, drinking and flushing the toilet, but you may also use water in manufacturing or production processes. Your business will produce waste water that’s flushed or poured away.
The water that’s disposed of will either go down surface water drains, or foul water drains. Water that runs down surface water drains will end up in local watercourses like streams and rivers and water that goes down any foul water drains will eventually end up at a water treatment plant.
Although you might think that the way you use and get rid of water is very similar to how you use it at home, different rules apply to businesses that you should be aware of to ensure you don’t dispose of anything down surface water or foul water drains that you are not allowed to. The Control of Pollution Regs 1996, the Environmental Permitting Regs 2010 and the Water Industry Act 1991 are key pieces of legislation you should consider.
If anything other than uncontaminated rainwater is going down any surface water drains on your premises then you can look into whether an Environmental Permit for Discharge to Controlled Waters is required. In England, these are regulated by the Environment Agency and you’ll need to comply with the conditions laid out in the permit.
Discharges to the foul sewer are known as ‘trade effluent’ for which a trade effluent consent is needed from your local water authority. Trade effluent doesn’t include domestic sewerage which includes waste water used for domestic purposes such as washing, food and drink and for toilets.
Common activities that you might need a permit or consent for include vehicle washing, emptying floor cleaners, launderette facilities, and process activities where water is used for washing or cooling.
Do you have consent or a permit for waste water at your business? And, do you think you might need one?
When carrying out an environmental legal audit at a company, the most common answer to the question ‘Do you have any invasive species on site?’ is ‘What’s an invasive species?’
In this blog I will provide information and pictures on invasive species, and explain why companies have legal requirements if they (and injurious weeds) are found on site.
Invasive species are a form of non-native species found in the UK. Non-native species are species introduced, usually by human action, outside their natural past or present distribution that might survive and subsequently reproduce.
Therefore, invasive non-native species are those flora or fauna introduced into the UK, which have the ability to spread, causing damage to the environment, the economy, our health and the way we live.
The Wildlife and Countryside Act 1981 contains measures for preventing the establishment of non-native species, which may be detrimental to native wildlife, prohibiting the release of animals and planting of plants listed in Schedule 9 in England and Wales. This schedule is reviewed and updated from time to time.
It’s not an offence to have these species on your land; however you mustn’t allow them to grow in the wild. This can include moving contaminated soil or plant cuttings. It’s also a nuisance offence to allow a certain type of invasive species ‘ Japanese knotweed to grow on other people’s property.
The Weeds Act 1959 classes 5 weeds as injurious. Again it’s not an offence to have these weeds on your land, but you have a legal duty to prevent them spreading to agricultural land, and you must choose the most appropriate method for controlling them if on your site.
Common types of invasive species and injurious weeds
The 5 most widespread types of invasive species are:
Japanese knotweed
Giant hogweed
Himalayan balsam
Rhododendron
New Zealand Pigmyweed
The 5 most common injurious weeds are:
Common ragwort (most prevalent and dangerous to animals)
Spear thistle
Creeping or field thistle
Broad-leaved dock
Curled dock
Disposing of invasive species can be tricky, and if dealt with incorrectly, it can be illegal. So, the advice before you do anything is to contact the regulator, either Natural England or the Environment Agency.
Back in 2001, a law was brought into force called The Control of Pollution (Oil Storage) (England) Regulations 2001 (SI 2001/2954). This was specifically designed to reduce the incidents of oil pollution from organisations that stored larger quantities of oil outside, either for transport fuel use, heating or other manufacturing and lubrication activities.
This blog takes a look at what the requirements of this law are and reminds us what obligations are placed on organisations that store oil on site.
What are the thresholds?
These regulations apply to oil including petrol and diesel that is stored in containers larger than 200 Litres outside and above ground. In Scotland and Northern Ireland, it also applies to oil stored inside buildings, but this requirement is just best practice in England.
The 200 litre threshold was chosen as the most common container for storage of oil is a 205 Litre drum; therefore these regulations apply to oil stored in those drums. The Regulations cover fixed tanks, intermediate bulk containers (IBCs), drums and mobile bowsers.
The Regulations don’t apply to oil stored wholly underground, to domestic oil storage below 3500 Litres, to oil refineries and distribution, and to agricultural oil storage on a farm, which has its own regulations.
What types of oil apply?
Any types of oil including petrol and diesel apply, but waste oil storage does not apply as that is dealt with in other law (environmental permitting and exemptions).
What are the requirements?
The container storing the oil must be structurally sound, and housed in (or on) secondary containment. This is usually a bund, or for smaller oil drums a suitable drip tray. How you test the structural integrity of your tank is up to you, but you need a way of checking that the tanks aren’t rusting from the inside out.
The secondary containment must be able to store 110% of the container’s capacity, or if there are multiple containers, 110% of the largest container, or 25% of the total volume of the aggregated storage capacity, whichever is greater.
Importantly, for all of these calculations it’s not just 110% of the oil you have stored in the tank at any time, it’s the containers capacity, even if you never fill it full.
A lot of organisations will use integrally bunded tanks to store oil. These are a tank within a tank where the gap between the two allows for 110% of the inner tanks volume. The regulator (Environment Agency) is keen to stress that not all double skinned tanks meet this requirement as the gap between some double skinned tanks is too small to cope with the 110% requirement. If this is the case with your tank it will need additional secondary containment (like a bund).
The secondary containment must be situated where risk to impact (from vehicles for example) is minimised.
Pipework
The regulations are specific about pipework attached to, or feeding oil tanks. Fill or draw off pipes which are routed through the bund walls must be adequately sealed to keep the bunds integrity.
Where the fill pipe is not within the secondary containment, a drip tray must be used to catch oil during tank filling. Sight gauges, vent pipe or other ancillary pipework or equipment (other than a fill pipe or draw off pipe must be situated within the secondary containment system.
Where pipework leads underground to a fill station for example, they must not have any mechanical joints except where there is visible access, they must have adequate facilities for detecting leaks, or if not must be leak tested every 5 years for pipes with mechanical joints, and every 10 years for pipes with no mechanical joints.
Other requirements
Where the tank is filled from a location that the tank and vent pipe cannot be seen, then an automatic overfill protection device must be fitted.
Where the tank includes a flexible hose for delivering oil, the end of the hose must be fitted with a valve (usually as part of a fill nozzle) to prevent oil leaking when not in use.
This hose, when not being used, must be situated in a secure cabinet which is locked shut when not in use and has a drip tray beneath, or it located within the secondary containment system.
Any storage of oil shouldn’t be situated less than:
(a) 10 metres away from any inland freshwaters or coastal waters; or
(b) 50 metres away from a well or borehole.
To do so risks a notice being served by the Environment Agency, if it considers there is a significant risk of polluting controlled waters. This might involve moving or taking other precautions relating to the oil storage.
An HSE backed research paper published in May 2015 reported that one person dies almost every week from skin cancer caused by exposure to the sun at work. The research concluded that employers should take urgent action to protect employees. Here we look at the findings and legal issues.
Malignant melanoma of the skin
Everyone is exposed to sunlight radiation at a greater or lesser degree depending on location and leisure time activities.
People at higher risk of burning or developing skin cancer are generally those with fair skin, red or light hair and those with lots of freckles or moles.
The Imperial College London report, ‘The Burden of Occupational Cancer in Great Britain’ reported rising numbers of hospital registrations and deaths from malignant melanoma of the skin.
Malignant melanoma registrations
Year
England
Males
England
Females
Wales
Males
Wales
Females
1995
1833
2744
104
132
2005
3663
4362
215
268
2011
5440
5681
359
382
Number of deaths from malignant melanoma of the skin
Year
England & Wales
Males
England & Wales
Females
Scotland
Males
Scotland
Females
1995
762
714
71
60
2005
855
767
87
71
2011
1110
810
115
75
Work-related skin cancer
The Imperial College researchers estimated that 2% of cases of skin cancer, some 240 new cases reported to hospitals and 46 deaths each year, can be attributed to occupational exposure to solar radiation.
The research found that the construction industry accounts for the largest number of melanoma cases with 44% of deaths and 42% of skin cancer registrations.
Other sectors of concern included:
Farmers
Gardeners
road workers
outdoor activity work
public administration
defence
The report concluded that there is an “urgent need to develop appropriate strategies to reduce this burdenâ€.
One of the main challenges is lack of awareness.
A survey by the University of Nottingham, released consecutively by the Institution of Occupational Safety and Health, found that two thirds of construction workers outside for an average of nearly seven hours a day thought they were not at risk or were unsure if they were.
Legal requirements
Section 2 of the Health and Safety at Work etc Act 1974 contains a general duty for every employer to
“ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employeesâ€.
Section 3 extends the duty to self-employed persons and others that may be affected by the employer’s undertaking.
In particular, the employer must:
assess the risks to employees’ health and safety. If there are five or more employees, they must record the significant findings of the assessment;
identify measures for controlling the risks;
make arrangements for putting those measures into effect ‘ this could include time restrictions on sun exposure or providing sun cream
give employees information, instruction and training ‘ for example, recommendations to wear clothing and hats or to stay in the shade
report diseases to the HSE
Employees also have their own legal duties. These include
taking reasonable care for their own health and safety and
co-operating with the employer.
What is “reasonably practicable†will depend on the circumstances.
If an employee brings an occupational illness claim for developing skin cancer, it would be difficult to find that the employer had breached its health and safety duties if the employer had carried out a risk assessment and offered practical advice to employees.
Depending on the costs involved, a proactive employer might even provide sun cream to high risk workers and offer medical surveillance.
EU biocides approvals for active substances 1st July 2015
The active substances listed below have been approved for use in biocide products, which are placed on the EU market from 1st July 2015, following their evaluation under the EU Biocides Regulation 528/2012 (EU BPR). EU BPR authorisation must be obtained for biocide products that contain such active substances if they are intended to stay on the market:
Companies are reminded that they must apply for UK authorisation of relevant biocide products by 1st July 2015, in order to keep their products on the UK market after this date. Biocide products containing more than one active substance must be authorised by the relevant date that the last active substance in the product is approved. If applications for UK authorisation, of any biocide product containing approved active substances, are not made by 1st July 2015 then the biocide product will not be made available on the UK market after 28th December 2015 and any existing stocks may not be used after 30th June 2016. Biocide products that currently have approval under the UK Control of Pesticides Regulations will have their approval revoked.
Useful resources:
Guidance on the transitional arrangements for existing biocide products on the UK market and biocide products currently regulated under the UK Control of Pesticides Regulations, which are affected by the active substance approval list.
Full EU list of approved biocide active substances.
Guidance on applying for UK authorisation of biocide products.
A study by the Department for Environment, Food & Rural Affairs (DEFRA) has shown the benefits of UK environmental regulations are increasing. The study covers all regulations for which DEFRA is responsible.
The estimated cost-benefit ratio of regulation has risen from 1:2.9 in 2011 to 1:3. This means that the general benefits of the regulations outweigh the net cost to business and civil society by at least three to one.
DEFRA explains this is due to the introduction of new regulations and the removal of old regulations.
The regulatory reform plan for the Department was published in April 2014 and provided an overview of how actions were being taken to reduce regulatory burdens on business. This included a review of over 1200 regulations and the planned removal of 350 obsolete regulations.
The DEFRA study has also calculated the estimated direct costs of regulation to businesses to be £6 billion between 2012 and 2021. 86% of this figure is related to compliance, with the remaining 14% being administrative burden. The estimated direct benefit to business is £2bn a year, which gives a net cost of £4bn. The benefits include reduced flood damage, fewer instances of agricultural disease and more efficient use of energy.
Over £1billion in public expenditure is associated with DEFRA regulations, of which the majority is spent on flood protection. Land remediation, biodiversity protection, administration and enforcement account for most of the rest.
The regulatory reform plan is still in place and depending on the outcome of next month’s upcoming election, the changes to environmental law look set to continue.
Almost five years ago on 14th May 2010, Prime Minister David Cameron said he wanted the coalition to be the greenest Government ever in his speech to the Department of Energy and Climate Change during the PM’s Whitehall tour introducing the new Government.
However, as we come to the end of this Parliament the Government’s Deregulation Act 2015 (which came into force on 26th March) contains a number of deregulatory anti-environmental policies.
The aim of the Deregulation Act 2015 is to reduce the legislative and regulatory burdens affecting businesses, organisations and individuals, as well as repealing legislation that no longer has practical use. The Act covers a wide range of topics; here is a roundup of the sections that relate to the environment:
Section 14 Shippers of gas allows third parties to unload combustible gas to offshore installations within Gas Importation and Storage Zones without a licence, providing the installation is maintained by another person with a licence and a controlled place is used to unload gas to the installation.
Section 15 Suppliers of fuel and fireplaces (England) Amends the Clean Air Act 1993 (smoke control areas) by altering the procedure for declaring fuels as authorised fuels and the procedure for exempting classes of fireplaces. The Secretary of State may authorise fuels and exempt classes of fireplaces by publishing a list of each, updating the list from time to time and publishing them on the Defra website on gov.uk instead of making Regulations or Orders.
Section 43 Amendment of the Planning and Energy Act 2008 (England) Local planning authorities can no longer require that developments in their area meet higher energy efficiency standards than are required by building regulations, regarding construction or alteration developments of dwellings.
Section 57 Reduction of duties relating to energy and climate change Amends the Climate Change and Sustainable Energy Act 2006 by removing duties and functions on local authorities and the Secretary of State relating to consideration of energy measure reports, setting national targets and increasing sales of electricity generated by microgeneration, reviewing development orders facilitating the installation of equipment for microgeneration in dwelling-houses, and removes the duty to promote the use of heat from renewable sources.
In relation to England removes the requirement on the Secretary of State to lay reports before Parliament about actions taken to improve compliance with building regulations relating to energy conservation.
Section 58 Household waste: de-criminalisation (England, except London) Removes the offence of failing to put out waste in a certain way for collection by the local authority i.e. to segregate waste into specified receptacles. Whilst this may be a welcome change for some householders, it could result in a reduction in recycling rates, will make segregating waste more difficult for waste operators and could reduce the quality of recycled materials.
Section 97 Access to registers kept by the Gas and Electricity Markets Authority A positive change has been made to allow these registers to be made available on the Authorities website instead of a hardcopy at their premises.
Section 100 Repeal of duty to prepare sustainable community strategy (England) Removes the requirement for local authorities to prepare sustainable community strategies.
Schedule 13 Other measures relating to animals, food and the environment Removes the power to establish joint waste authorities in England.- Amends the Control of Pollution Act 1974 by removing the power of local authorities to designate areas as noise abatement zones.
Amends the Environment Act 1995 by removing the duty on local authorities to carry out further air quality assessments in designated air quality management areas.
The much talked about Deregulation Bill has now been passed into an Act of Parliament coming into force from 26th March.
The aim of the Deregulation Act 2015 is to reduce the legislative and regulatory burdens affecting businesses, organisations and individuals, as well as repealing legislation that no longer has practical use. The Act covers a wide range of topics; here is a roundup of the sections that relate to health and safety:
Section 1 Health and safety at work: general duty of self-employed persons
This controversial section has been subject to much debate and was amended at the eleventh hour (see ‘Government’s u-turn on Deregulation Bill will inevitably cause confusion for self-employed’ in March’s Health and Safety Newsletter).
Amends Section 3 of the Health and Safety at Work etc. Act 1974, which places a general duty on employers and the self-employed to conduct their business in a way that ensures, as far as is reasonably practicable, that they and persons (other than their employees) are not exposed to risks to their health or safety.
The amendment limits the scope of this general duty on self-employed persons, by applying the duty to those self-employed persons carrying out certain activities on a prescribed list, rather than all those who are self-employed. This has the effect of exempting self-employed persons who are not covered by the prescribed list, from this duty.
This has been a cause of great contention in Parliament and subject to a last-minute amendment by Government Whip Lord Wallace of Saltaire, the Secretary of State will have the power to make Regulations under clause 1 of the Act to bring other self-employed persons within the scope of the general duty. Any Regulations made must specify that all self-employed people, whose work poses a risk to others would retain their duties under the Health and Safety at Work Act. Any Regulations must also be approved by both houses of Parliament.
Section 6 and 7 Requirements to wear safety helmets: exemption for Sikhs
The exemption for turban wearing Sikhs from wearing a safety helmet is extended from construction sites to all workplaces (except in urgent response to hazardous situations such as fire or riots, or if the individual is a member of Her Majesty’s Forces and taking part in a military operation). This therefore includes visitors to a workplace as well as workers.
Schedule 10 Regulation of the use of roads and railways
Amends Part 3 of the Road Traffic Act 1988 relating to the duration of a driving licence granted to drivers with relevant disabilities. It provides that the Secretary of State may determine the duration of the licence, which shall be a period
a) of a maximum of 10 years and a minimum of 1 year ending on or before the licence
holder’s 70th birthday, or
b) a maximum of 3 years and minimum of 1 year where there are less than three years before the licence holder’s 70th birthday or where the licence is granted on or after that birthday.
Places a requirement on the Secretary of State to designate premises, provide and maintain stations and equipment where goods vehicles can be examined.
Schedule 21 Poisons and explosives precursors
Abolishes the Poisons Board and amends the Poisons Act 1972 to establish a cohesive licensing regime relating to certain poisons and explosives precursors.
The Regulations establish a licensing regime concerning the availability, possession and use of regulated and reportable substances that could be misused for criminal purposes.
For further information also see the following pieces of law which sit alongside Schedule 21:
the Deregulation Act 2015 (Poisons and Explosives Precursors) (Consequential Amendments, Revocations and Transitional Provisions) Order 2015 (SI 2015/968); and
the Control of Poisons and Explosives Precursors Regulations 2015 (SI 2015/966).
The much criticised Social Action, Responsibility and Heroism (SARAH) Act has received royal assent and will come into force on 13th April 2015. It applies to England and Wales.
By introducing the legislation, the Government hopes to dispel fears around the UK’s compensation culture, however this is a contentious issue in itself as it is somewhat debatable that we actually have a compensation culture; statistics show that workplace claims have reduced by half over the last decade (183,342 claims in 2002-2003 compared to 91,115 claims in 2012-2013), although the public’s perception of a compensation culture certainly still exists. Lord Young, in his ‘Common sense Common Safety’ report stated, The problem of the compensation culture prevalent in society today is one of perception rather than reality.
The Act is made up of just four short clauses setting out how the courts should consider ‘context’ in negligence and statutory duty of care claims. It requires that the courts give consideration to the following factors:
Was the person acting for the benefit of society?
Has the person demonstrated a predominantly responsible approach towards protecting the safety of others?
Was the person acting heroically by intervening in an emergency to assist a person in danger?
The Act is vague and does not actually change the overarching legal framework; instead it simply directs the court to consider the above factors in assessing whether or not a defendant has demonstrated reasonable duty of care. Furthermore, the requirement is for judges to give ‘consideration’ to those factors; there is no indication as to what weight, if any, will be placed on them.
The Bill has been subject to much ridicule by MPs and Lords during its journey through Parliament and has been subjected to various amendment proposals:
Lord Pannick launched a scathing attack on the Bill saying that in 40 years of studying law he could not remember, a more pointless, indeed fatuous, piece of legislation than clause 2 of this Bill, with the possible exception of clauses 3 and 4 of this Bill.
Labour called for the removal of the responsibility clause but were unsuccessful;
Peers called for the withdrawal of the heroism and responsibility clauses but their proposals were defeated;
Lord Lloyd of Berwick proposed that the Bill be withdrawn because it is of no importance at all as three of the clauses are already covered by Section 1 of the Compensation Act 2006.
The Government agreed to tweak the Bill by changing the wording of the responsibility clause from generally responsible approach to predominantly responsible approach and also removed part of the heroism clause referring to a person acting without regard to their own safety following concerns expressed by St John’s Ambulance and the Fire Brigades Union.
Lord Lloyd of Berwick also challenged the Government on using legislation in order to change public perception. The purpose of legislation is to make law that can be enforced in the courts. It is not to send out Government messages, however well intentioned.
Potential issues in practice
There is the potential for courts to face some difficult questions due to the Act being so brief and somewhat vague. Judges will have to interpret the factors and what they mean, for instance what do they include and exclude? The factors potentially have a very wide scope and could lead to confusion, E.G. Does clause 2 ‘for the benefit of society’ include the public sector? Does clause 3 ‘predominantly responsible’ apply to employers that introduce some health and safety measures, and how is ‘predominantly’ measured? How do we determine clause 4 ‘heroism’, what actions or situations define a hero(ine)? We will have to wait for these issues to pan out, but there is the potential for future judicial interpretations to vary greatly.
