COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT pursuant to the second subparagraph of Article 251 (2) of the EC Treaty concerning the Common Position of the Council on the adoption of a Directive of the European Parliament and the Council amending Council Directive 96/82/EC of 9 December 1996 on the control of major-accident hazards involving dangerous substances

2001/0257 (COD)

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT pursuant to the second subparagraph of Article 251 (2) of the EC Treaty concerning the Common Position of the Council on the adoption of a Directive of the European Parliament and the Council amending Council Directive 96/82/EC of 9 December 1996 on the control of major-accident hazards involving dangerous substances

1. PROCEDURE

The Proposal COM(2001) 624 final - 2001/0257(COD) of 10 December 2001 [1] was forwarded to the Council on 11 December 2001 in accordance with the co-decision procedure pursuant to Article 175 (1) of the EC Treaty.

[1] OJ No C 075, 26.03.2002, p. 357.

The European Economic and Social Committee gave its opinion on 24 April 2002.

The European Parliament gave its opinion at the first reading in plenary session on 3 July 2002.

On 26 September 2002, the Commission adopted an Amended Proposal COM(2002) 540 final - 2001/0257(COD) which was forwarded to Council on 26 September 2002.

Following the opinion of the European Parliament and pursuant to Article 251(2) of the EC Treaty, the Council adopted a Common Position on 20 February 2003.

2. PURPOSE OF THE DIRECTIVE

Council Directive 96/82/EC of 9 December 1996 [2] on the control of major-accident hazards involving dangerous substances (so-called Seveso II Directive) aims at the prevention of major accidents and the limitation of their consequences for man and the environment, with a view to ensuring high levels of protection throughout the Community in a consistent and effective manner.

[2] OJ No L 10, 14.01.1997, p.13.

The proposal follows the Communication on the "Safe operation of mining activities: a follow-up to recent mining accidents" (COM(2000) 664 final) in which the Commission sets out three key actions in order to increase the safety of mining operations (an amendment of the Seveso II Directive, an initiative on the management of mining waste and a Best Available Technologies reference document under the IPPC Directive (96/61/EC)) and aims at including certain activities of the extractive industries, including tailings disposal facilities.

The proposal also addresses the fireworks explosion that occurred in Enschede in May 2000 by proposing a better definition of explosive and pyrotechnic substances along with a decrease of qualifying quantities for these substances. Furthermore, following the recommendations of two studies on carcinogens and substances dangerous for the environment, it proposes to include more carcinogenic substances and to lower the qualifying quantities for substances toxic to aquatic environment.

Consideration has also been given as to whether the explosion of the chemical site of AZF that occurred in Toulouse on 21 September 2001 necessitates immediate amendments of the Seveso II Directive. While the original Proposal did not contain additional legislative measures in this respect, the Amended Proposal introduces changes with regard to the definition of and qualifying quantities for ammonium nitrate, land-use planning and information to the public.

3. COMMISSION COMMENTS

3.1. General comments

The Commission accepted totally, in part or in principle 24 of the 47 amendments proposed by the European Parliament in the first reading. Out of these 24 amendments, 21 have now been incorporated, either verbatim or in spirit, in the Common Position. The other three amendments have been rejected by Council.

With its opinion of 3 July 2002, European Parliament had asked for a more substantial review of the Seveso II Directive. Only a few of the 47 amendments adopted are related to the scope of the Directive. The majority of amendments seem to have been developed under the cloud of the tragic accident in Toulouse.

The Commission notes that the Council agrees with the Commission that it is premature to opt for a more substantial review of Seveso II at this stage. The present Directive has only been applicable for three years. This is too short a period to get sufficient feedback from industrial operators or Member States with regard to any problems encountered in the application of the Directive. Without such feedback a broader revision, as requested by the European Parliament, cannot be justified at this stage.

The Commission considers that the Common Position adopted on 20 February 2003 does not alter the approach and aims of the Proposal and can thus support the Common Position.

3.2. Detailed comments

3.2.1. Parliamentary amendments accepted by the Commission and incorporated in full or in part in the common position

Amendments 1 and 2 propose recitals related to the Toulouse accident, introducing the modifications of the entries for ammonium nitrate while pointing out that sites of end-users of ammonium nitrate should not be covered by the Directive. Incorporated in full.

Amendment 7, relating to the coverage of tailings from mining activities, specifies that only "operational" tailings facilities are to be covered, which the Commission accepted in principle, while proposing to replace the term "operational" by "active". The amendment also proposes to broaden the scope of the tailings facilities covered to include those used in connection with mechanical and physical processing, which the Commission did not accept for the reasons given under Amendment 6 (see section 3.2.3 below). As stated in the Explanatory Memorandum attached to the Commission's original proposal, the Commission intends to cover the safety aspects of such tailings disposal facilities through the initiative on the management of mining waste. Incorporated in full.

Amendment 8 proposes to create an additional paragraph in Article 4, moving the exclusion of "offshore exploration and exploitation of minerals" from paragraph (e) into this paragraph for reasons of clarity. The Commission accepted this clarification, subject to an addition to make explicit that hydrocarbons are covered by the exclusion. Incorporated in full.

Amendments 9. 13, 18, 23 and 24 address the issue of establishments that come subsequently under the scope of the Seveso II Directive. These amendments aim at providing reasonable time limits for the submission of notifications (Article 6) and safety reports (Article 9), and the establishment of the major accident prevention policy (Article 7) and the internal and external emergency plans (Article 11). The Commission accepted all of these in principle, with slight modifications to the wording. Incorporated in full.

Amendment 16 proposes to replace in Article 8 the term "competent authority for external emergency planning" with the term "authority responsible for external emergency planning". The Commission accepted this in principle. However, since the amendment is proposed in conjunction with amendment 15, rejected by the Commission, new wording was necessary. Incorporated in full.

Amendment 17 proposes that the safety report indicate all persons and organisations involved in drawing it up, as well as describing the methods used. The Commission accepted the first part of this proposal, but did not believe that an additional requirement to describe the methods used - beyond the elements necessary for the evaluation of the safety report - would contribute to safety. Incorporated, whilst replacing the words "It (the safety report) shall name all persons and organisations ..." by "It shall name the relevant organisations ...". The Commission would like to draw attention to the fact that safety reports might be established using the help of independent experts (= individuals) who cannot be subsumed under the term "organisations". It therefore prefers the text of its Amended Proposal.

Amendments 25 and 26 propose to reinforce the provisions of Article 11 for consultation in the preparation and review of emergency plans. The Commission accepted in principle amendment 25, and also accepted in principle the intention of amendment 26 to insist on the consultation of staff of external enterprises employed on the site. Incorporated, whilst adding the words "long term" when referring to subcontracted personnel. In the Commission's opinion, it is not important how long subcontracted personnel works in the establishment but whether it is works in sensitive areas of the establishment. Therefore, it prefers the text of its Amended Proposal, without the words "long term".

Amendment 27 creates a link with Council Decision 2001/792/EC establishing a Community mechanism to facilitate reinforced co-operation in civil protection assistance interventions [3], by requiring Member States to take account of the decision in external emergency plans. Incorporated in spirit, whilst deleting the reference to Council Decision 2001/792/EC. The Commission believes that an explicit reference to Council Decision 2001/792/EC is useful and therefore prefers the amendment as proposed by European Parliament which the Commission fully accepted.

[3] OJ No L 297, 15.11.2001, p. 7.

Amendment 32 specifies that information on safety measures and on the requisite behaviour in the event of an accident should be supplied to persons liable to be affected by major accidents "regularly and in the most appropriate form" and extends the scope of this obligation to "all establishments serving the public (schools, hospitals, etc.)". The Commission accepted this amendment in principle. Incorporated in spirit. The Commission draws attention to the fact that the formulation "serving the public" would only include public buildings but not private office buildings. It therefore prefers its text in the Amended Proposal, speaking of "all establishments assembling people".

Amendment 37 aims at obliging the Member States to provide the Commission with basic information on establishments covered by the Directive (name, address, activity). Incorporated, whilst adding the sentence: "Access to the database is reserved for persons authorised by the Commission or the competent authorities of the Member States." The Commission prefers the amendment as proposed by European Parliament which it fully accepted, and that does not contain this sentence.

Amendment 39 proposes the creation of 4 new entries for ammonium nitrate including their qualifying quantities. Incorporated in full.

Amendment 45 rephrases a part of the section on organisation and personnel in Annex III, which defines the information to be included in the safety management system, emphasising the involvement of subcontractors. Incorporated with minimal changes to the text proposed by the Commission (replacing "subcontractors" by "subcontracted personnel").

Amendment 53 proposes definitions for the four new entries on ammonium nitrate proposed in amendment 39. The Commission accepted this amendment in principle. Incorporated in full.

Amendment 54 proposes to modify Article 12 (Land-use planning) by extending the list of developments which should, in the long term, be separated from Seveso II establishments, to include buildings of public use, transport routes, industrial establishments, and recreational areas. The Commission accepted this proposal in part, with the exception of industrial establishments, noting that domino effects between hazardous industrial establishments are already addressed in Article 8. It also believed that "transport routes" is too broad in this context, and should be replaced by "major transport routes". Incorporated in full, whilst adding the words "as far as possible" after "major transport routes". The Commission believes that this could lead to interpretation problems and therefore prefers the text of its Amended Proposal.

Amendment 55 would oblige the Commission to draw up guidelines defining a harmonised technical database of risk data and risk scenarios to be used for assessing the compatibility between existing establishments covered by the Directive and sensitive areas and to develop a methodology for establishing appropriate minimum safety distances. The Commission supports the further development of guidelines on land-use planning but is not convinced that it is possible or useful to develop a single methodology at the present time. The Commission therefore only partly accepted this amendment. Incorporated, whilst deleting the word "harmonised" and the reference to "risk data and risk scenarios". The Commission believes that without a harmonised technical database, i.e. without a common understanding on possible accident scenarios and their effects, it will not be possible to achieve progress in establishing the same high level of protection for all citizens throughout Europe. It therefore clearly prefers its text in the Amended Proposal.

3.2.2. Parliamentary amendments accepted by the Commission and not incorporated in the common position

Amendments 40 and 42 propose the creation of 2 new entries for potassium nitrate including their definitions and qualifying quantities. The Commission accepted these amendments, as they bring in line the qualifying quantities for potassium nitrate with those fixed for ammonium nitrate.

Amendment 46 concerns the obligation to supply information to those liable to be affected by the consequences of an accident. The amendment proposes to add to the items to be communicated a map showing risk areas. The Commission accepted this amendment in principle.

3.2.3. Parliamentary amendments rejected by the Commission and the Council and not incorporated in the common position

Amendments 3-5 propose recitals which refer to matters arising from the Toulouse accident.

Amendment 6 proposes to broaden the scope of the mining activities to be covered by the Directive by including mechanical and physical processing of minerals.

Amendment 10 proposes to require the operator to include information on training measures in the notification.

Amendment 11 proposes to require operators to inform the competent authority in the event of a modification of an installation, establishment or storage area.

Amendment 12 proposes to require the operator to "evidence compliance with his obligations" in the document setting out the major accident prevention policy (MAPP).

Amendment 14 proposes to add into Article 8 (Domino effect) a link to Article 12 on land-use planning.

Amendment 15 proposes to require explicitly that the public be informed of the possible dangers and risks of domino effects through the local press, by mail and via the Internet website of the regional authority concerned.

Amendment 19 proposes to make the review of the safety report compulsory "in the event of changes in work organisation with an impact on the safety of an installation."

Amendment 20 proposes to impose an obligation on Member States to draw together different methods used for drawing up safety reports into a single European method.

Amendments 21 and 22 propose to modify Article 10 so that the operators of all establishments are obliged to inform the competent authority of any modifications before making them.

Amendment 28 proposes to oblige Member States, in the case of an accident, to inform the monitoring and information centre established according to Council decision 2001/792/EC and to co-operate with this centre.

Amendment 29 proposes to amend Article 12 on Land-use Planning to include controls on "technical measures put in place to reduce hazard areas".

Amendment 31 would oblige the Commission to develop a "scheme of incentives and / or funding for the relocation of establishments".

Amendments 33 and 34 aim at reinforcing the right of the public to have access to safety reports and emergency plans by, among other points, requiring that these should appear in newspapers and on the Internet, be forwarded to local advisory bodies, and be posted in establishments open to large numbers of people.

Amendment 35 proposes a new article on "Training of staff of establishments and of external enterprises", establishing obligations to provide staff with regular training and to provide competent authorities with a report on training every two years.

Amendment 36 proposes an obligation for Member States to suspend activities where the operator has not provided information on changes/modifications and on training.

Amendment 38 aims at restricting "commercial or industrial secrecy" exclusively to processes, and not to information concerning the storage of dangerous substances.

Amendment 43 proposes references to Directive 2000/60/EC (Water Framework Directive) and Directive 91/689/EEC on hazardous waste.

Amendment 44 proposes to insert in Annex II Part IV an obligation to perform substance-related "hazard studies".

3.2.4. Other changes made by Council

In Article 13(6), the following text was added at the end of the paragraph: ", subject to the provisions of paragraph 4 of this Article, and Article 20." (Article 1 (1))

In the Introduction to Annex I, point 6 was clarified and the following point 7 was added: "7. For the purposes of this Directive, a liquid is any substance that is not defined as a gas and that is not in the solid state at a temperature of 20ºC and at a standard pressure of 101.3kPa." (Article 1 (2)).

Other technical changes relate to the Notes to Part 2 of Annex I. (Article 1 (2))

Finally, the transposition period in Article 2 (1) was extended from 12 to 18 months.

The Commission can accept these changes but would have preferred a transitional period of 12 months, as originally proposed.

4. CONCLUSION

The Commission considers that the Common Position adopted on 20 February 2003 does not alter the approach and aims of the Proposal and can thus support the Common Position.