New regulations on hazardous chemicals have been published. They replace the previous regulations of 1995, and contain new definitions and additional measures on issues such as labelling and disposal
The Minister of Employment and Labour recently gazetted new regulations on hazardous chemical agents (2021 Regulations). The 2021 Regulations replace the previous regulations on hazardous chemical substances which were first published in 1995 (1995 Regulation). The language used in the 2021 Regulations (e.g. "must") is different to the language used in the 1995 Regulations (e.g. "shall"). We highlight the noteworthy changes below. Where we do not deal with a particular regulation, this means that there is no real difference between the 2021 Regulations and the 1995 Regulations.
At the outset, Regulation 18 provides that certain regulations as contained in the 2021 Regulations will only come into effect
18 months after promulgation (i.e. on 29 September 2022). These are Regulations 13(d), 14, 14A, 14B, 14C, 14D; Annexure 1, Tables 1, 2, 3, 4 and 5; and Annexure 2, Tables 1, 2, 3 and 4.
New definitions - Regulation 1
The 2021 Regulations incorporate various new and revised definitions. Including:
- "BEI" or "biological exposure index" (revised definition)
- "CAS number" or "chemical identity" (new definition)
- "chemical agent" (new definition)
- "GHS hazard classification" (new definition)
- "hazard category" (new definition)
- "hazardous chemical agent" or "HCA" (revised definition)
Scope of application - Regulation 2
The 2021 Regulations, like the 1995 Regulations, continue to apply to employers (including self-employed persons) who carry out work at a workplace which may expose any person to an HCA.
The 2021 Regulations also apply to
manufacturers, importers, suppliers, and retailers of an HCA that is intended for use at a workplace. This is a new addition and it is important for stakeholders who fall within these categories to take note of these regulations.
Information, instruction and training - Regulation 3
The 1995 Regulations only referred to "information and training" while the 2021 Regulations refer to "information, instruction and training". The scope of this regulation has also increased and affected employers must ensure that information, instruction and training include aspects such as:
|Chemical substance regulations are in place that govern all aspects of HCA use at the workplace || ||Duties of persons who are likely to be exposed to an HCA || ||Details of the HCAs to which the employee is likely to be exposed at the workplace |
|Work practices and procedures that must be followed for the use, handling, storage, transportation, spillage and disposal of an HCA, in emergency situations, as well as for good housekeeping and personal hygiene || ||Precautions that must be taken by employees to protect themselves against health risks associated with exposure, including wearing and using protective clothing and respiratory protective equipment |
Air monitoring - Regulation 6
The 2021 Regulations no longer permit any persons other than an approved inspection authority to conduct air monitoring measurement programmes. Representative testing is required on a 24 month basis for HCAs with maximum limits and restricted limits, whereas different testing periods of 12 months and 24 months, respectively, were required under the 1995 Regulations in respect of HCAs with control limits and recommended limits. The need to verify a measurement programme of the airborne concentrations of an HCA to which an employee is exposed is no longer required since approved inspection authorities only may conduct the measurements in the first place.
Medical surveillance - Regulation 7
The provision on medical surveillance in the 2021 Regulations remain the same as those in the 1995 Regulations, except that HCAs are now listed in Table 4 of Annexure 2 to the 2021 Regulations. HCAs include acetone, benzene, fluorides, lead, mercury and uranium.
Records - Regulation 9
The 2021 Regulations remove the requirement for employers to keep medical surveillance records.
Handling hazardous chemical substances
This regulation from the 1995 Regulations has been completely removed in the 2021 Regulations.
Control of exposure to hazardous chemical agents - Regulation 10
In terms of the 2021 Regulations, the employer must ensure that the emission of an HCA into the atmosphere complies with the provision of the National Environmental Management Air Quality Act 39 of 2004
Prohibitions - Regulation 13
The prohibitions contained in the 1995 Regulations also appear in the 2021 Regulations, with the following additional prohibitions.
No person may:
|Use statements such as "non-toxic", "non-harmful", "non-polluting" or "non-hazardous" or similar statements indicating the HCA is not hazardous, or any other statements that are inconsistent with the HCA's GHS classification on the label or packaging of any HCA |
Manufacture, procure, use, handle or store within the workplace:
- A prohibited HCA as listed in Table 1 of Annexure 2
- Ozone-depleting substances provided in the Regulations regarding the Phasing-Out and Management of Ozone-Depleting Substances, published as Government Notice No. R. 351 of 8 May 2014
- Persistent organic pollutants prohibited by the Prohibition on the Import, Export, Possession, Acquisition, Sale, Use and Disposal of Agricultural Remedies, under section 7 of the Fertilizers, Farm Feeds, Agricultural Remedies and Stock Remedies Act, 1947 (Act No. 36 of 1947), published as Government Notice No. R. 862 of 29 July 2016
Labelling, packaging, transportation and storage
This regulation from the 1995 Regulations was completely removed in the 2021 Regulations.
Classification of hazardous chemical agents - Regulation 14
This is a new regulation in the 2021 Regulations. This regulation requires
manufacturers and importers of chemical agents to do the following:
- determine whether the chemical agent is an HCA by carrying out a hazard assessment, with reference to the cut-off values provided in Tables 4 and 5 of Annexure 1
- if the substance, mixture or article is an HCA, ensure that a GHS classification is carried out for the HCA
- review the GHS classification if a change is made in the composition of the HCA.
This must be done
before the chemical agents are supplied to a workplace.
Safety data sheet - Regulation 14A
This is a new regulation in the 2021 Regulations. This regulation requires manufactures and importers to prepare a safety data sheet before manufacture or immediately after manufacturer but before import. The safety data sheet must meet certain requirements and it must be provided by manufacturers and importers to any suppliers of the HCA to a workplace and to any person who is likely to be affected by an HCA. It must also be provided by suppliers of an HCA when the HCA is first supplied to the workplace, if the sheet is amended, and to any person at the workplace upon request. The safety data sheet must also be obtained by the employer and provided to various affected persons, including any person involved in using, handling or likely to be exposed to the HCA at the workplace.
The safety data sheet must be presented using 16 specific headings listed in the 2021 Regulations.
Labelling of hazardous chemical agents - Regulation 14B
This is a new regulation in the 2021 Regulations. This regulation imposes different obligations on manufacturers and importers, suppliers, retailers and employers regarding the labelling of hazardous chemical agents.
An HCA is correctly labelled if the selection and use of label elements are in accordance with the GHS and if the HCA is packed in a container with a label providing certain minimum information, including product identifier and, where applicable, the United Nations proper shipping name and a signal word, hazard statement, precautionary statement and hazard pictogram consistent with the HCA's GHS classification.
Packaging of hazardous chemical agents – Regulation 14C
This is a new regulation in the 2021 Regulations. Packaging for an HCA must satisfy the relevant requirements of the UN Transport of Dangerous Goods with respect to packaging and fastenings, or the UN IMO International Maritime Dangerous Goods Code.
Disclosure of ingredient identity - Regulation 14D
This is a new regulation in the 2021 Regulations. Where the ingredient in an HCA causes the correct classification of the chemical to include a hazard class and hazard category, the identity of the ingredient must be disclosed. However, the chemical identity of the ingredient can be disclosed by its generic name if certain conditions are present, for example if the identity of the ingredient is commercially confidential.
When an ingredient of an HCA must be disclosed, the proportion of the ingredient to the hazardous chemical must also be disclosed, in line with specific requirements detailed in the regulation.
Disposal of hazardous chemical agents - Regulation 15
This is a new regulation in the 2021 Regulations. Employers must, as far as reasonably practicable, comply with certain requirements when disposing of hazardous chemical agents. For example, the employer must:
|Recycle HCA waste || ||Ensure that all collectable HCA waste is placed in containers that prevent the likelihood of exposure during handling || ||Ensure that if the services of a waste disposal contractor are used, the contractor also complies with the provisions of these regulations |
Offences and penalties - Regulation 16
The offences and penalties now make provision for contravention of regulations 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13,14, 14A, 14B, 14C or 14D. Any person who contravenes one or more of these provisions shall be guilty of an offence and liable on conviction to a fine or imprisonment for a period not exceeding six months and, in the case of a continuous offence, to an additional fine of R500 for each day on which the offence continues.