4 Major accident hazards from dangerous
substances
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18257/10
+ ADDs 1-2
COM(10) 781
| Draft Directive on the control of major accident hazards involving dangerous substances
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| Legal base | Article 192(1) TFEU; co-decision; QMV
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| Document originated | 21 December 2010
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| Deposited in Parliament | 5 January 2011
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| Department | Work and Pensions
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| Basis of consideration | EM of 20 January 2011
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| Previous Committee Report | None
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| To be discussed in Council | No date set
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| Committee's assessment | Politically important
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| Committee's decision | Not cleared; further information awaited
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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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