GB MCLs variation from EU HCLs legal issue

A worrying situation for some Mandatory Chemical Classifications in the UK (published in Chemicals Coffee Time, 14th October 2022)

Regular readers of this newsletter will be aware that Divergence between the Harmonised Classification list in the EU and the Mandatory Classification list in the UK will really start to bite on 17th December 2022, when the 17th ATP to EU-CLP comes into effect, in fact, did they choose that date because it’s the 17th ATP?

Anyway, the issue is to do with how we deal with differences between the HC list and the MC list.

Most of the differences are easy to deal with:

• if a substance is not already on the MC list and appears on the HC list for the first time, you can use the HC voluntarily, as this is the most up to date information available
• if a substance is on the MC list but the HC list adds a new “end point” or hazard class which isn’t on the MC list, again, you can use the HC voluntarily, because it’s “new information”

We were asked to confirm the following situation with HSE on behalf of the Chemical Regulations Self Help Group:

• If a substance is on the MC list, and the HC list reduces the classification of a hazard “end point”, what should we do in the UK? – the answer is to wait until the UK adopt that new classification (or not). (There is information in the Agency Opinions published by the HSE which gives a clue as to what they think, but it doesn’t necessarily mean that their ideas will be adopted).

That seems perfectly reasonable to us. But I wanted to check something which I have been trying to explain to the HSE almost as soon as Brexit occured, so Alison (who was running the discussion with the Helpdesk) asked

• If a substance is on the MC list, and the HC list increases the classification of one or more hazards, what should we do in the UK? The response came back the same as for a reduction in classification, which is to “wait until the UK adopts that new classification (or not)”.  Email thread here for reference: download as PDF.

This does not seem reasonable.

For starters, it flies in the face of Duty of Care, and the responsibility to pass on new information in a timely manner to the users of our products.

It also effectively means that companies who have these substances are products, or in mixtures, can be prosecuted under the Health and Safety At Work Act, 1974 (as amended):

• either for failing to keep their product information up to date
• or for failing to use a Mandatory Classification

In other words, you are at risk of prosecution regardless of what you do, “damned if you do, and damned if you don’t”.

And the only reason why this comes about is because of the discrepancy in timescales between the HC list in the EU, and the MC list in the UK.

To be fair to the HSE Helpdesk, they have suggested that one way round this issue is to include the new test data in Section 11 and Section 12 of the SDS, and explain that the Mandatory Classification is used in section 2 in preference to the new data. However, this does not help with products labelled according to the MC list which may hold the “old” classification.

And even if the HSE are not going to enforce against industry, if there is an incident involving those chemicals, and your SDS is technically illegal (for either reason), you can imagine a prosecutor having a field day with that fact in court in a civil action.

Any reputable company wants to remain in legal compliance at all times, yet some may find themselves out of compliance through no fault of their own. Is there not some legal principle preventing this kind of situation developing?

There are 6 chemicals which are affected by this situation in the 17th ATP, and a further 6 in the 18th ATP. Some of these are in widespread use in the UK, and this situation could potentially affect a lot of companies.

I do not want to rock the boat with the HSE, but surely they could be providing better guidance than this? Any thoughts you have on this important issue is welcome.

17th ATP affected substances:

17th ATP substance name	CAS no	Classification changes
mancozeb (ISO)	8018-01-7	Repr. 1B H360D increased from Repr. 2 H361 (Carc. 2, H351 and Aquatic Chronic 1, H410 with M=10 added)
1,4-dioxane	123-91-1	Carc. 1B H350 increased from Carc. 2 H351
1,2-epoxy-4-epoxyethylcyclohexane	106-87-6	Carc. 1B H350 increased from Carc. 2. H351 (Also, Acute Tox .4, H302 reduced from Acute Tox 3* H301; Acute Tox. 3* H311 removed. Acute Tox. 3* H331 confirmed as Acute Tox. 3 H331).
mecoprop-P [1] and its salts	16484-77-8	Aquatic Chronic 1, H410, M=10, increased from Aquatic Chronic 2, H411. (Also, Aquatic Acute 1 H400, M=10 added. Acute Tox. 4* H302 confirmed as Acute Tox. 4 H302, with oral ATE = 431 mg/kg bw)
imidacloprid (ISO)	138261-41-3	Acute Tox. 3, H301 increased from Acute Tox. 4*, H301, with oral ATE= 131 mg/kg bw. Existing Aquatic Acute 1, H400 given M=100 (previously none published), and Aquatic Chronic 1, H410 given M=1000 (previously none published)
1,2,4-triazole	288-88-0	Repr.1B H360FD increased from Repr.2 H361d**. Acute Tox. 4* confirmed as Acute Tox. 4 with oral ATE 1,320 mg/kg bw

18th ATP affected substances:

18th ATP substance name	CAS no	Classification changes
divanadium pentaoxide; vanadium pentoxide	1314-62-1	Repr. 2, H361fd increased from H361d***.Acute Tox. 3 H301 increased from Acute Tox. 4 H302.Acute Tox. 2 H330 increased from Acute Tox. 4 H332. (Also STOT RE1 H372 confirmed as respiratory tract, inhalation. New hazards Carc. 1B H350 and Lact. H362.
2-butoxyethanol; ethylene glycol monobutyl ether	111-76-2	Acute Tox. 3, H331, increased from Acute Tox. 4, H332. (Acute Tox 4 oral, H302 given oral ATE 1200 mg/kg).
2-(2-methoxyethoxy)ethanol; diethylene glycol monomethyl ether	111-77-3	Repr. 1, H360D, increased from H361d.
2-ethylhexanoic acid Description Changed: 2-ethylhexanoic acid and its salts, with the exception of those specified elsewhere in this Annex	149-57-5 CAS# Removed (Entry Changed to Group)	Repr. 1, H360D, increased from H361d.Note that entry has been changed to a group to include salts as well, and a CAS number removed.
cyfluthrin (ISO); α-cyano-4-fluoro-3-phenoxybenzyl-3-(2,2-dichlorovinyl)-2,2-dimethylcyclopropanecarboxylate	68359-37-5	Acute Tox. 2, H330, increased from Acute Tox. 3*, H331. (Also Acute Tox. 2, H300, confirmed from Acute Tox. 2, H300. New hazards STOT SE 1, H370 (nervous system), and Lact. H362.)
acetamiprid (ISO); (E)-N1-[(6-chloro-3-pyridyl)methyl]-N2-cyano-N1-methylacetamidine	135410-20-7	Acute Tox.3, H301, from Acute Tox. 4, H302*, and Chronic Aquatic 1, H410, increased from Chronic Aquatic 3, H412. (New hazards Repr. 2, H361d, and Acute Aquatic 1, H400).

Please check both the 17th ATP https://eur-lex.europa.eu/legal-content/EN/TXT/HTM… and 18th ATP https://eur-lex.europa.eu/legal-content/EN/TXT/PDF… substances yourselves in case there are any typos!

Chemicals Coffee Time, 21st October 2022 – update on how Transport of Dangerous Goods may be affected

The ongoing MCL/HCL issues continues to cause concern, as discussed in last week’s email (see  above)

Colin Pratt of Dangerous Goods Services writes: In Fridays post you included the following

{quote}

acetamiprid (ISO); (E)-N1-[(6-chloro-3-pyridyl)methyl]-N2-cyano-N1-methylacetamidine

135410-20-7

Acute Tox.3, H301, from Acute Tox. 4, H302*, and Chronic Aquatic 1, H410, increased from Chronic Aquatic 3, H412. (New hazards Repr. 2, H361d, and Acute Aquatic 1, H400).

[End quote]

So to extract the relevant bit (from my side at least) the Environmental Hazard has increased from Chronic Aquatic 3 (H412) to Chronic Aquatic 1 (H410) – NOTE I’m just reviewing this one end point in isolation!

By ADR (2021) 2.2.9.1.10.3.1 this will now become an “Environmentally hazardous substance for transport” so UN 3082 (Liquid) or UN 3077 (solid).

So again this one end-point (viewed in isolation) will cause issues – if a UK haulier uses the MCL, then its not hazardous to transport, if he uses the HC it is (for this end point). Not the same legal dilemma of course – but still a conflict of interests.

ADR Quote)

2.2.9.1.10.3.1

Substances shall be classified as “environmentally hazardous substances (aquatic environment)”, if they satisfy the criteria for Acute 1, Chronic 1 or Chronic 2, according to Table 2.2.9.1.10.3.1. These criteria describe in detail the classification categories. They are diagrammatically summarized in Table 2.2.9.1.10.3.2.

(End quote)

I believe that said table lists the CLP / GHS values , such that ADR and GHS are “aligned” and the higher GHS hazards result in transport classifications ( the lower don’t).

Many thanks to Colin for spotting another problem with diverging too far from EU hazard classifications.

Chemicals Coffee Time, 28th October 2022 – ADR and HCL/MCL variances between the EU and UK

Following Colin Pratt of Dangerous Goods Service’s point about this in last week’s newsletter, see above, I confirmed the situation with Ian Gascoyne of Freightsafe Dangerous Goods Training, who is better known to Self Help Group Members as my “Tame DGSA”, rather like Top Gear’s Stig 🙂 ).

Ian points out that, even if there are different hazard classifications for a product in the EU and UK, there should be no discrepancy between ADR classifications, because:

• ADR is apolitical, so no national variations
• ADR is a separate classification system to CLP, and must be carried out from its own first principles
• CLP classification is indicative for Transport of Dangerous Goods, but not the whole picture – you must use best available data for ADR, regardless of where the data comes from

Ian is also a waste expert, and explains that a similar situation occurs for Hazardous Waste Classification, whether you’re carrying this out for disposing of materials, or placing this information on an SDS (although this can be risky, see below).

• Like ADR, Hazardous Waste is a completely separate classification system, and must be carried out from its own first principles
• CLP classification is indicative, but not the whole story for Hazardous Waste Classification, when other data can be used as well

Ian’s phrase for the differences between CLP and Transport of Dangerous Goods, and CLP and Hazardous Waste Classification, is that these systems are related but not connected.

In other words, a CLP classification does not automatically generate either a TDG/ADR classification, nor HWC, although it may indicate that there is a hazard present in either of those systems.

So if the HSE in the UK persist in insisting that out-of-date MCL classifications are used in the UK, despite more severe classifications being available on the basis of published data from the EU, we could end up with SDSs stating a lower hazard CLP classification than the TDG and/or Hazardous Waste classifications for the same product in the UK!

Many thanks to Ian for confirming Colin’s diagnosis of the situation and providing extra information on Hazardous Waste Classification as well.

(Note on providing EWC codes on the SDS – this was the topic of a recent discussion on the CHCS Forum, sign up here if you are not already on their mailing list: https://chcs.org.uk/chemical-hazards-forum . Briefly, you can only provide an EWC code for the product you supply, and you need to make sure people don’t apply it inadvertently to contaminated or reacted or otherwise chemically altered material).

This article was last updated on 29th October 2022

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