Additional Guidance from the Department for Environment, Food and Rural Affairs and Welsh Assembly Government

"Shortest possible time": guidance on compliance obligations with regard to replacement, containment and emission limit values


Introduction

1. 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 (England and Wales) Regulations 2004, SI 107, and the Solvent Emissions (Scotland) Regulations 2004, which implement the EU Solvent Emissions Directive (1999/13/EC). This note gives guidance on this term.

* these VOCs are what are referred to in the PG notes as "designated risk phrase materials" and comprise:

• a halogenated VOC which is assigned or needs to carry the risk phrases R40
• a substance which is a VOC and which is assigned or needs to carry one or more of 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 one or more of the risk phrases R45, R46, R49, R60 or R61.

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

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

2. 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 of the SED, namely

• fitness for use
• potential effects on human health and occupational exposure
• 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.

3. Without prejudice to paragraph 2, while recognising that there may be justifiable cases under paragraph 2 why substitution may not be feasible or must be a medium/long-term objective, as a general principle Defra/WAG/SE consider that substitution should normally be no later than the following dates (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.

4. 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 should be expected to provide a strong justification against the criteria in paragraph 2b) above. The same applies to operators of existing installations who propose to start using any of these substances or preparations for the first time.

Shortest Possible Time and Compliance with Emission Limit Values, and Containment

5. Regulators will need to reach a view on what constitutes the shortest possible time with regard to the obligation on operators to meet the emission limit values described in Articles 5(7) and 5(8) of the SED if they use substances or preparations which are assigned or need to carry the risk phrase categories described below and exceed specified mass flow thresholds:

a) substances or preparations which because of their VOC content are assigned or need to carry one or more of 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.

Although decisions on shortest possible time should be taken on the facts of each individual case as a general principle DEFRA/WAG/SE consider that where mass flow thresholds are exceeded emission limit value compliance should normally be no later than the dates given in paragraph 3 above (but without taking account of the criteria in paragraph 2a)-c)).

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

Substitution and emission limits

6. 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 one or more of 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, Defra/WAG/SE consider 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.

SPT = Shortest Possible Time
(1) see paragraph 4 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].)

Defra/AEQ

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page last modified on 17/12/09