Solvent Emissions (Scotland) Regulations 2004: guidance

Guidance on the Solvent Emissions (Scotland) Regulations 2004

9. RISK PHRASES: REPLACEMENT, CONTAINMENT AND ELV COMPLIANCE

9.1 Introduction

Articles 5(6) - 5(9) of the SED sets controls on the use of substances or preparations which contain certain harmful VOCs which have been assigned or need to carry the risk phrases R45, R46, R49, R60, R61 or halogenated VOCs which have been assigned the risk phrase R40. In particular operators who use such VOCs are required to consider issues such as containment, compliance with emission limit values and the feasibility of substituting to less harmful alternatives in the shortest possible time (the latter requirement regarding substitution does not apply to the use of halogenated VOCs which have been assigned the risk phrase R40).

9.2 Shortest Possible Time

The term "shortest possible time" is used in connection with the substitution of certain VOCs* and/or compliance with emission limit values applicable to these VOCs in the Solvent Emissions (Scotland) Regulations 2004 (SSI 2004/26), which implement the EU Solvent Emissions Directive (1999/13/EC). This note gives guidance on this term.

*These VOCs are what are referred to as "designated risk phrase materials" and comprise

• a halogenated VOC which is assigned or needs to carry the risk phrase R40

• a substance which is a VOC and which is assigned or needs to carry the risk phrases R45, R46, R49, R60 or R61, and

• a preparation which, because of its content of substances which are VOCs, is assigned or needs to carry the risk phrases R45, R46, R49, R60 or R61.

A preparation which contains substances to which risk phrases have been assigned, but which itself is not assigned or does not carry the risk phrases, is not a designated risk phrase material.

9.2.1 Substitution of Article 5(6) Solvents in Shortest Possible Time

Regulators will need to reach a view on what constitutes the shortest possible time with regard to the Article 5(6) obligation on operators to substitute substances or preparations, which because of their VOC content are assigned or need to carry the risk phrases R45, 46, 49, 60 or 61. Decisions should be taken on the facts of each individual case, taking account of the following:

(a) the views of operators contained in submitted substitution plans; and

(b) all of the factors as set out in Article 7(1) of the SED ; namely

fitness for use;

potential effects on human health and occupational exposure in particular;

potential effects on the environment;

the economic consequences, in particular the costs and benefits of the options available,

in relation to both the existing substances/preparations and their potential substitutes, and

(c) any guidance published by the European Commission under Article 7(1).

Without prejudice to paragraph 9.2.1, while recognising that there may be justifiable cases under paragraph 9.2.1 why substitution may not be feasible or must be a medium/long-term objective, as a general principle the Scottish Executive considers that substitution should normally be no later than the following dates for existing installations (and may often be appropriate before these dates):-

• in the case of substances/preparations assigned these risk phrases before 29 March 1999 : 31 October 2007

• in the case of substances/preparations assigned these risk phrases after 29 March 1999 : 6 years from the date of assignment / reclassification.

It is considered that in most cases when designing a new installation, avoiding the substances or preparations referred to in Article 5(6) will be less costly and more technically feasible than for replacement at an existing installation, and therefore these substances or preparations can reasonably be excluded from use. Any operator proposing to use these substances or preparations at a new installation for the first time will be expected to provide a strong justification against the criteria in paragraph 9.2.1(b) above. The same applies to operators of existing installations who propose to start using any of these substances or preparations for the first time.

9.2.2 Shortest Possible Time and Compliance with Emission Limit Values

If an operator of an existing installation uses substances or preparations which were assigned or needed to carry the risk phrase categories described in (a) or (b) below before 29 March 1999 and the corresponding mass flow thresholds are exceeded then compliance with the emission limit values described in Articles 5(7) or 5(8) of the SED is required by 31 October 2007.

If an operator of an existing installation uses substances or preparations which are assigned or need to carry the risk phrase categories described in (a) or (b) below after 29 March 1999 and the corresponding mass flow thresholds are exceeded then compliance with the emission limit values described in Articles 5(7) or 5(8) of the SED is required within the shortest possible time.

Paragraphs referred to above:

(a) substances or preparations which because of their VOC content are assigned or need to carry the risk phrases R45, R46, R49, R60 or R61 and the mass flow is greater than or equal to 10g/hour;

(b) halogenated VOCs which are assigned the risk phrase R40 and the mass flow is greater than or equal to 100g/hour.

Regulators will need to reach a view on what constitutes the shortest possible time with respect to compliance with the emission limit values described in Articles 5(7) or 5(8) if an operator of an existing installation uses substances or preparations which are assigned or need to carry the risk phrase categories described in paragraphs (a) or (b) above after 29 March 1999. Although decisions should be taken on the facts of each individual case as a general principle the Executive considers that emission limit value compliance should normally be no later than 6 years from the date of classification where corresponding mass flow thresholds are exceeded, with no requirement to take account of the criteria described in paragraphs 9.2.1(a) to (c).

The above applies to containment also, except for the reference to mass flow which should be disregarded.

9.2.3 Substitution and Emission Limits

Operators will be subject to shortest possible time compliance obligations for both substitution and emission limit values if substances or preparations are used which because of their VOC content are assigned or need to carry the risk phrases R45, R46, R49, R60 or R61.

In such cases, although the criteria for determining shortest possible time for compliance with emission limit values and for substitution are different, and it is possible that the period could be substantially shorter in the former case, the Executive considers it likely that in the great majority of cases the timescales will be the same - not least because the additional cost of meeting emission limit values for only an interim period prior to substitution is likely to outweigh the public health and environmental benefits. One instance where the timescale for compliance with emission limit values could be shorter than that for substitution is where there is justifiable doubt about the prospects of substitution being achieved within the specified period.

Table 7: Summary of Guidance on the Compliance Requirements of SED Activities 5(6) - 5(9)

Requirement	Compliance date
	Existing Installation: risk phrase assigned before 29 March 1999	Existing Installation: risk phrase assigned on or after 29 March 1999	New Installation: risk phrase assigned at any date
ELV Compliance Article 5(6) VOCs where mass flow exceeds 10g/hour + Article 5(8) VOCs where mass flow exceeds 100g/hour	31 October 2007	Shortest Possible Time No later than 6 years from classification	Immediate
Containment for Article 5(6) and 5(8) VOCs	31 October 2007	Shortest Possible Time No later than 6 years from classification	Immediate
Substitution for Article 5(6) VOCs only	Shortest Possible Time No later than 31 October 2007	Shortest Possible Time No later than 6 years from classification	Shortest Possible Time (1) + (2)

Notes on Table 7

(1) see paragraph 9.2.1 above

(2) in circumstances where a justification is accepted for the continued use of Article 5(6) VOCs a condition would be placed in the authorisation / permit requiring annual reappraisal of the feasibility of substitution.

(3) the date when a substance or preparation is considered to have been assigned an Article 5(6) or 5(8) risk phrase category is the date when the substance appears on the Approved Supply List in which the substance is listed with one or more of the relevant R phrases. (The Approved Supply List provides information approved for the classification and labelling of substances and preparations dangerous for supply in accordance with the Chemicals (Hazard Information and Packaging for Supply) Regulations 2002 [the CHIP Regulations].)

9.2.4 Risk Phrase Data and Assignment

Risk phrase data for a substance/preparation may be found on the product safety data sheet, the transport packaging or the product container. Labelling of packaging with the correct risk phrase is required under the CHIP Regulations (Chemicals Hazard Information and Packaging for Supply) Regulations 1994 (as amended).

The date when a substance or preparation is considered to have been assigned an Article 5(6) or 5(8) risk phrase category is the date when the substance first appears on the Approved Supply List with one or more of the relevant R Phrases. The Approved Supply List provides information approved for the classification and labelling of substances and preparations dangerous for supply in accordance with the Chemical (Hazard Information and Packaging for Supply) Regulations 2002 (the CHIP Regulations). The HSE can assist with any queries on when a substance or preparation was first assigned or needed to carry a particular risk phrase. The HSE Helpline is: 08701 545500.