The “Competent Person” in the EU and UK for CLP-GHS

The HSE’s definition of Competence

Last week, we looked at the “Competent Person” definition under GHS, https://chemicalscoffeetime.co.uk/archive-2/the-competent-person-under-ghs-2/ , and came to these conclusions:

• Competence isn’t defined under GHS, so we used the dictionary definition, which is “the ability to do something successfully or efficiently“
• there isn’t really a proper definition of “Competent Person” yet
• and it may take decades to come through at UN level, because of the wide variations between GHS in different jurisdictions

But what about the EU? should we expect a “Competent Person” to be defined under CLP-GHS?

Competence under CLP-GHS in the EU, 2020

CLP does not mention “Competent Person” at all.

However, REACH Annex II (where the SDS requirements for GHS sit in the EU), mirrors the GHS requirement on training for SDS compilers.

Section 0.2.3 of REACH Annex II states: “The safety data sheet shall be prepared by a competent person who shall take into account the specific needs and knowledge of the user audience, as far as they are known. Suppliers of substances and mixtures shall ensure that such competent persons have received appropriate training, including refresher training“.

There is no other information on Competence or training for SDS compilers given within the REACH regulation.

There is some detail given in the SDS Guidance which can be downloaded from the ECHA website here: https://echa.europa.eu/-/guidance-on-the-compilation-of-safety-data-sheets .

“... there is a specific duty on the supplier of the substances and mixtures to ensure that the competent persons have received appropriate training and refresher training. There is no specific indication in the REACH Regulation of the training which the competent person should have or that he should attend a special course or pass an official examination. However attendance at such courses and any examination and certification may be useful in demonstrating the required competence.“

There SDS guidance also gives a list of bullet points on training which may be provided for SDS compilers (abbreviated here):

1. Chemical nomenclature

2. European Regulations and Directives relevant to chemicals and their implementation in Member States

3. Relevant national or international guidelines of the respective sector association

4. Physical and chemical properties:

5. Toxicology/eco-toxicology:

6. First aid measures

7. Accident prevention

8. Measures for safe handling and storage

9. Transport provisions

10. National provisions

If you think this looks like rather a lot of information, it is!

The list implies competence, that is the ability to carry out work successfully in several different professional disciplines such as Toxicology, Eco-toxicology, Occupational Health and Safety, Transport of Dangerous Goods etc.

In my opinion, it is unlikely that any one individual can cover all of these topics in sufficient detail to achieve true competence, unless one spends one’s entire life in some form of training.

It is more practical to have access to people with expertise in specific areas, e.g. a Dangerous Goods Safety Advisor for Transport help; an Occupational Health and Safety person, for advice on safe handling and storage, etc.

These REACH SDS guidelines are also more broad than those given in Transport of Dangerous Goods (TDG), and there is no information on who is competent to provide the training, or who should certify trainers.

So the EU position is effectively mirroring GHS, plus providing their own rather bureaucratic suggestions for training, which may or may not be helpful.

What about Competent Person in the UK?

This is where things really get interesting.

Although CLP does not include a definition of Competent Person, and GHS only requires that a Competent Person be used to produce a Safety Data Sheet (rather than for Classification, Labelling and Packaging), CLP in the UK is regulated under the Health and Safety at Work Act, 1974, (HSWA), as amended.

This is the “mother regulation” of occupational Health and Safety in the UK, and the HSE website has a lot of useful information about it here: https://www.hse.gov.uk/legislation/hswa.htm .

HSWA includes its own definition of Competence:

“Competence can be described as the combination of training, skills, experience and knowledge that a person has and their ability to apply them to perform a task safely. Other factors, such as attitude and physical ability, can also affect someone’s competence.“

This is a much more detailed definition of Competence than the dictionary definition, or even thatn is implicit in the ECHA guidance, because:

• it includes skills, experience and knowledge as well as training
• it defines success as the ability to apply these attributes to perform a task safely
• there is also mention of personal qualities of an individual: “Other factors, such as attitude and physical ability, can also affect someone’s competence.”

The HSE also define a Competent Person:

“A competent person is someone who has sufficient training and experience or knowledge and other qualities that allow them to assist you properly. The level of competence required will depend on the complexity of the situation and the particular help you need.

When getting help, you should give preference to those in your own organisation who have the appropriate level of competence (which can include the employer themselves) before looking for help from outside. You must consult health and safety representatives in good time on the arrangements for competent help.“

So even though CLP does not include a requirement for a Competent Person to carry out Classification, Labelling and Packaging, this may be implicit because it is enforced under HSWA.

Which definition of Competence and Competent Person is applicable in the UK?

Here in the UK, it looks like we have 2 versions of Competence covering GHS:

• a rather broad, woolly one in REACH Annex II, enforced by the REACH Enforcement Regulations
• a more clear definition under HSWA, which presumably covers CLP

Personally, I much prefer the HSWA definition for CLP and SDS work.

This is because it reflects reality.

Competence is not, and should not be, just about training.

In my experience of classifying, labelling and packaging goods and writing SDSs, and also training people face to face (over 70, at the last count), I know that:

• people who have handled chemicals for their work, e.g. in the lab or on plant, are much better at choosing P statements, because they understand the risks of chemicals based on their own practical experience
• people who are working regularly with chemical classifications are more “in practice” than people who only do it occasionally, and need to refer less often to the regulations or guidance, whereas if one is classifying something which is outside one’s normal sphere, then you need to check what to do (classification is a bit like maths in that sense, you can lose competence if you’re not doing it frequently)
• if you are working in a different discipline, e.g. sales, you may be too far removed from the “front line” of chemical handling to be sufficiently motivated to do a good job of hazard communication (that is classification, labelling and writing SDSs) to keep your customers and end users safe
• however, you don’t necessarily need to be a degree-level chemist or toxicologist to classify and write SDSs, as long as you have a logical mind, and access to a chemist if you need one
• being disciplined and organised helps with managing the masses of information you may need to handle for GHS, and it also helps with working through the process of classifying and compiling an SDS in a systematic and logical fashion (or in other words, being a nerd definitely helps!)

In my experience, a new graduate working in Regulatory Affairs can learn to classify, label and compile SDSs through training, but they may not be as effective as someone with practical chemicals experience.

The main thing is that they are aware that they may need to ask people with that experience for help at times during the classification and SDS authoring process, and they will gradually develop experience, albeit at second hand.

It may be better for them to spend a year or two in a working lab before moving into Regulatory Affairs (if that’s possible), or to spend some time in the lab (or in production) observing and perhaps helping out if they can’t work there full time, so they can gain first hand experience of chemicals.

I know that I wouldn’t be comfortable classifying chemicals or training people in chemical classification if I didn’t have that practical hands-on experience, both as an industrial chemist, and in assessing occupational H&S risks for myself and my employees when we are on our clients’ sites.

The other interesting thing about the HSWA definition of Competent Person is that a company “should give preference to those in your own organisation who have the appropriate level of competence“.

This ties in with my own preference for companies to do as much for themselves as possible, and to have outside help (like me) available for areas which are outside the normal run of things, or where it isn’t efficient to keep technical expertise in-house (such as for Environmental Permitting, or COMAH).

The reason for this is that people working for an organisation have “skin in the game”, they are (or should be) committed to making a company safe for themselves, their fellow employees, their neighbours, their customers, over the long term.

The problem with using external people like consultants is that we may not be as committed to your Health and Safety as you are, and if something goes wrong, our own business isn’t affected in the way that your business is.

Another problem is that an outside person can never really know your business like your staff do: you are working in it all the time, to us, your business is one of several or many clients, so we haven’t got the time or capacity to learn about your product range and its hazards in as much detail as you do.

So rather than use a company to classify and produce all of your SDSs, it is probably better to follow the HSE’s advice and get staff trained up in doing this, ideally people who have some experience in handling chemicals, and keep consultants on hand to help with trickier problems you can’t resolve in-house.

To summarise the current situation, until there is a definition of Competence and Competent Person given under GHS for compiling SDSs, and then brought through into REACH (by which time, we may be under UK-REACH), then we are in limbo about what this means, although the HSE definitions are helpful in defining competence as a whole, and not just in terms of training.

I hope that this is useful, and if you have any queries around this interesting topic, please email me.

GHS Classification Courses from TT Environmental Ltd

9th March 2020

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