Enforcement body roles set out for REACH

Proposals for controls and penalties for breaches of the EU REACH Regulation on the registration of chemicals were issued for consultation by the Environment Department (DEFRA) in March.1

The EU Regulation on the registration, evaluation and authorisation of chemicals comes into force on 1 June 2007. Member states must have an enforcement and penalties regime in place by 1 December 2008.

Not all obligations set out in REACH will be enforced by the UK authorities. The new European Chemicals Agency, for example, will issue registrations. Other obligations, such as sharing the costs of acquiring risk data for substances (ENDS Report 385, p 11 ), are matters for civil law.

But UK enforcement will be required in a number of areas, including:

  • The manufacture, import, sale or use of substances without the appropriate registration.
  • Using a hazardous substance outside the terms of an authorisation or contrary to a restriction.
  • Failure to provide required information up and down the supply chain.
  • Failure to provide information to workers or consumers, or to supply information on time.
The government will use secondary legislation, made under the European Communities Act 1972, to provide the legal basis for the implementation of REACH enforcement. This will allow the legislation to be in place in time, but will impose limits on the maximum penalties available.

The paper says a new body will not be needed to enforce the Regulation and existing bodies can enforce the regime within the range of their current functions. This should also reduce the cost to business from £1.60-1.96 million to £0.96-1.17 million.

As announced in October (ENDS Report 381, p 4 ), the Health and Safety Executive and its counterpart in Northern Ireland will be the UK competent authority. It will also enforce the information and supply chain aspects of the regime, including requirements to submit information to the ECA on registrations and production tonnages of substances.

HSE inspectors will enforce these provisions as part of their current role to enforce regulations on the control of substances hazardous to health (COSHH) and the control of major accident hazards (COMAH).

A "significant amount" of enforcement is also expected to come from whistleblowing by competitors and information from environmental groups.

Obligations in relation to specific sites and the use of chemicals on them will be enforced by the HSE, the environment agencies and local authorities. The government will impose a duty on such bodies to enforce REACH over those businesses or premises where they already have responsibilities under other legislation.

In England and Wales, local authorities will regulate installations under Parts A2 and B of the pollution prevention and control regime and the Environment Agency will cover sites under Part A1. The environment agencies in Scotland and Northern Ireland will cover all PPC installations. Enforcement authorities will have powers to enter premises, collect evidence and demand information using enforcement notices according to each authority’s current practices.

Throughout the UK, local authority trading standards officers will enforce REACH in conjunction with the Consumer Protection Act 1987.

The paper asks whether a single penalties regime or one that distinguishes between serious and minor offences is appropriate. Administrative penalties, as proposed by the Macrory review (ENDS Report 383, pp 37-39 ), will not be included but may be added later.