Documents considered by the Committee on 2 February 2011 - European Scrutiny Committee Contents


4   Major accident hazards from dangerous substances

(32396)

18257/10

+ ADDs 1-2

COM(10) 781

Draft Directive on the control of major accident hazards involving dangerous substances

Legal baseArticle 192(1) TFEU; co-decision; QMV
Document originated21 December 2010
Deposited in Parliament5 January 2011
DepartmentWork and Pensions
Basis of considerationEM of 20 January 2011
Previous Committee ReportNone
To be discussed in CouncilNo date set
Committee's assessmentPolitically important
Committee's decisionNot cleared; further information awaited

Background

4.1  Although Community legislation to prevent, and respond to, major industrial accidents was first introduced in 1982, the current requirements are set out in Council Directive 96/82/EC[7] (the so-called "Seveso Directive"), as amended by Council Directive 2003/103/EC.[8] This includes an Annex, which identifies both named substances[9] (in Part 1) and broad categories of dangerous substances[10] (in Part 2) regarded as potentially hazardous, and it lays down certain requirements according to the quantities present at a particular establishment. Where those quantities exceed a basic threshold, the obligations on an operator involve notification to the Member State's competent authority of the quantities and physical form of any dangerous substances present on a site, the activity carried out at the establishment, and its immediate environment; the drawing up, and implementation, of an accident prevention policy; and the reporting of any major accidents (including any steps proposed to avoid a recurrence). In addition, the Member State itself must ensure that the need to prevent major accidents, and to limit their consequences, is taken into account in land use policies. In cases where the quantities of a dangerous substance exceed a higher threshold laid down in the Directive, the operator is subject to more comprehensive requirements regarding the provision of a major accident prevention policy and safety management system, emergency plans, and the provision of information on safety measures to those who could be affected by a major accident originating at the site.

4.2  The current classification of substances in the Annex to the Directive is based on that in two other measures (Directives 67/548/EEC and 1999/45/EC on the classification, packaging and labelling of dangerous substances), but these are being repealed and replaced by a new measure (Regulation (EC) No 1272/2008) with effect from 1 June 2015. Since this will in any case require a consequential amendment to Directive 96/82/EC, the Commission has taken the opportunity to carry out a wider review of that measure's effectiveness, and, whilst it says there is general agreement among those consulted that there is no need for any significant legislative change, there was broad support for further clarifying and updating the provisions so as to achieve greater consistency of implementation both across the EU and within Member States. It has therefore included these within this proposal.

The current proposal

4.3  The main effect of proposal would be to align Annex I of Directive 96/82/EC with the classification of dangerous substances and mixtures contained in Regulation (EC) No 1272/2008, but, although the new provisions are essentially unchanged from Directive 96/82/EC, a number of changes in nomenclature have been made to reflect the fact that the description of health hazards differs as between the Directive and Regulation. In particular, the two existing toxicity categories would be replaced by three new categories, which in turn would be divided into different exposure routes. As a result, the former hazard category "Very Toxic" has been replaced by "Acute Toxic 1" and "Toxic" by "Acute Toxic 2" (all exposure routes) and "Acute Toxic 3" (dermal and inhalation routes): and previous references to oxidising, explosive and flammable hazards have been replaced by the more specific categories in Regulation (EC) No 1272/2008.

4.4  In addition, the proposal would enable further technical amendments to be made to Annex I to adapt its scope to new technologies and emerging risks, and would address how any unintended or undesirable consequences of this alignment could be resolved (for example, where there is risk of a major accident because of a gap in legislation, or where a substance, when present under certain conditions, has no major accident potential. In particular, the Commission proposes that Annex I of Directive 96/82/EC could be amended by delegated acts which would develop criteria for derogations where a substances has no major accident potential, and introduce a safeguard clause for substances which have major accident potential, but which would fall outside the scope of the Directive.

4.5  The Commission has also proposed a number of other changes, so as to:

  • improve the level and quality of information provided to the public, with the aim of bringing the Directive into line with the Aarhus Convention;[11]
  • clarify that the land use planning provisions apply to upper and lower tier sites, and are intended to protect humans and the environment;
  • simplify and clarify existing requirements, remove unnecessary administrative burdens for site operators,[12] and set out detailed provisions relating to inspections: other measures would clarify the application of the proposed Directive to activities such as the storage of gas underground, and specify deadlines for complying with certain provisions.

The Government's view

4.6  In his Explanatory Memorandum of 20 January 2011, the Minister for Employment at the Department for Work and Pensions (Chris Grayling) says that the Government agrees that, as the risks from major accident hazards are significant and can be transboundary in nature, the same measures should be adopted by each Member State to reduce the risks to humans and the environment, and that this cannot be sufficiently achieved by individual Member States, thus warranting action at EU level. He also notes that, whilst a provision on "Access to Justice" specifies how Member States could provide remedies when a request for disclosure is refused, and could be viewed as undermining "national procedural autonomy", the Government does not believe there are strong grounds for such a view, as much is left to Member States' discretion (with the text only providing access to a court or tribunal in cases where there is "sufficient interest", and providing for injunctive relief "where appropriate").

4.7  More generally, the Minister describes the new Directive as being, overall, an important step in the development of major accident hazards legislation, and says that the UK broadly welcomes the proposal as a proportionate and well-balanced response to the need to address the implications of changes to EU legislation on classifying chemicals and the outcome of the Commission's review of Directive 96/82/EC. At the same time, he cautions that this initial view may change as the detail behind the individual proposals emerges, and suggests that one key issue will be the scope of the new Directive, which is partly dependent on the Commission's proposal to draw up new derogation arrangements and a safeguard clause. He says that it will be important to ensure that the alignment of the new Directive with the Regulation (EC) No 1272/2008 (and the associated derogation and safeguard procedures) results in a clear and workable system for both industry and regulators, and he adds that the implications of a number of other areas of the proposal, especially those relating to Member States' inspection arrangements and the provision of information to members of the public, will need to be considered in detail in the light of stakeholders' views.

4.8  The Minister also notes that the Commission has prepared an impact assessment of the proposals, and says that the Health and Safety Executive (HSE) is concerned that much of the information there is out of date in relation to the UK and not representative of the current position, with the costs of some elements of the proposal being unclear. He says that the HSE is already working closely with industry to develop a UK assessment which more accurately reflects the administrative and other costs and benefits of the proposal, and anticipates that this will be completed towards the end of March. That information will be shared with the Commission so that it can update its assessment, and an initial UK impact assessment will be submitted to Parliament as soon as it is ready.

4.9  In the meantime, the Minister suggests that, based on the Commission's impact assessment, the initial estimate of the cost of the proposal to UK industry and other bodies, of the preferred options outlined in the Commission's proposal, is around £7m over a ten year period, with annual costs of about £0.8m. However, he also says that these estimates have not been verified by the UK, and will be revised when HSE completes its initial UK impact assessment.

Conclusion

4.10  To the extent that an amendment to the Seveso II Directive is required as a consequence of the replacement of Directives 67/548/EEC and 1999/45/EC by Regulation (EC) No 1272/2008, this proposal is both logical and necessary, and we note the Government's general support for it, both on these grounds and also in relation to the Commission's wider review of Directive 96/82/EC. On the other hand, we also note the Government's comment that this initial view may change as the detail behind the individual proposals emerges, and that one key issue will be the scope of the new Directive, which in turn is partly dependent on the Commission's proposal to draw up new derogation arrangements and a safeguard clause.

4.11  Consequently, whilst we are reporting the proposal to the House, we think it right to hold the document under scrutiny, pending further information on these points, and receipt of the UK Impact Assessment which the HSE is preparing.



7   OJ No. L.10, 14.1.97, p.13. Back

8   OJ No. L.345, 31.12.03, p.97. Back

9   These include elements (such as bromine and chlorine), compounds (such as ammonium nitrate, phosgene, and those derived from arsenic and nickel), petrol, carcinogens, and dioxins and furans. Back

10   These are described in terms of such qualities as toxicity, explosivity, flammability, and substances which are toxic to the aquatic environment. Back

11   The Convention - which the UK signed in 2005 - provides for the right of public access to environmental information; public participation in decision making; and access to justice in environmental matters. Back

12   For example, by requiring closer coordination of inspections, and integrating procedures with those in other legislation, such as the Strategic Environmental Assessment Directive. Back


 
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