Opinion on the proposal for a Council Directive on the control of major-accident hazards involving dangerous substances (1) (94/C 295/18)

On 14 March 1994 the Council decided to consult the Economic and Social Committee, under Article 130s(1) of the Treaty establishing the European Economic Community, on the abovementioned proposal.

The Section for Protection of the Environment, Public Health and Consumer Affairs, which was responsible for preparing the Committee`s work on the subject, adopted its Opinion on 3 May 1994. The Rapporteur was Mr Pellarini.

At its 316th Plenary Session (meeting of 2 June 1994), the Economic and Social Committee unanimously adopted the following Opinion.

1. General comments

1.1. The Committee welcomes the Commission`s move in proposing a new Directive on major-accident hazards, which amends and updates the provisions and obligations set out in the previous Directive No 82/501/EEC (2) and the subsequent partial amendments thereto (87/216/EEC, 88/610/EEC and 91/692/EEC).

1.2. Though the 1982 'Seveso` Directive was the first to provide for Community measures, changes are needed in the light of over ten years` experience so as to increase the impact, stringency and operational efficiency of measures designed to prevent major accidents and improve harmonization among the Member States, thereby ensuring more satisfactory application of Community rules.

1.3. The Committee indeed observes that Directive 82/510/EEC has been implemented differently from one Member State to another, according to differing timescales. Such variations must not be repeated in the future as they distort terms of competition and generate discrepancies in health and environmental protection.

1.4. Despite the measures adopted, more than 130 major accidents have occurred during the lifespan of the Directive, sometimes with drastic consequences for the environment, the health and safety of workers and the population at large and indeed the economies of the areas concerned.

1.5. The Committee would stress that, in this specific area too, preventive action is the best means of preserving and protecting the quality of the environment, safeguarding the health of workers and the general public and ensuring economic survival. Moreover, that is consistent with the legal basis opted for (Article 130s) as well as with the leitmotif of the new programme to promote the environment and sustainable development which also places emphasis on involvement of all sections of society in a spirit of shared responsibility.

1.6. In the Committee`s view, the required amendments and new measures must be specific and suited for their purpose. Procedures or red tape which could add to the complexity and cost of such action without significantly reducing the damage caused by major accidents must be avoided.

2. General comments on the substance of the directive

2.1. Definitions

2.1.1. The Committee notes with pleasure that the definitions set out in the proposed Directive and Annexes are more precise and clear, in line with its own earlier recommendations (point 1.20 of the ESC Opinion of 26 March 1980) (3).

2.1.2. The reference to Directives 67/548/EEC, 88/379/EEC and 78/631/EEC for the purpose of Annex I classification provides a precise framework which gradually will have to be updated to keep pace with technical progress in accordance with existing procedures.

2.2. Scope: General remarks

2.2.1. The Committee supports the proposed amendments which clarify the activities covered by the Directive.

2.2.2. The distinction between storage and production made in Annexes II and III to Directive 82/501 is rightly scrapped. Since storage installations are often attached to production plants, difficulties in interpretation have arisen for many manufacturers and for the competent authorities.

2.2.3. It also seems appropriate to scrap the '500 metre rule` whereby manufacturers, under Article 5(4) of Directive 82/501/EEC, had to specify the total quantity of dangerous substances present within that distance, regardless of their major-accident hazards.

2.2.4. The proposal to exempt or limit the information to be included in the safety report if it can be demonstrated to the competent authorities that particular substances create no major-accident hazard (Art. 9.6) is also expedient.

2.2.5. The reference to the criteria set out in Directive 67/548/EEC in Part 2 of Annex I, which determines clear parameters for classification of dangerous substances as regards both manufacturers and the competent authorities is to be welcomed.

2.2.5.1. However, the Committee feels that the quantities of dangerous substances indicated in Parts 1 and 2 of Annex I necessitate further appraisal, since in some cases they could be too high.

2.3. Scope: Specific remarks

2.3.1. The Committee agrees with the proposed division of activities covered by the Directive into two risk categories, depending on the quantity of dangerous substances, as specified in Annex I.

2.3.2. It also agrees that the preventive measures to be planned and adopted should be communicated to the competent authority.

2.3.3. The Committee would point out that, under Directive 82/501/EEC and subsequent amendments, existing legislation, the rules of sound practice and simple commonsense, manufacturers already have a duty to anticipate the various types of potential hazards and take appropriate safety and preventive measures and that they are liable for any damage that may be caused by negligence or inadequate safeguards.

2.3.4. The Committee notes that the innovatory feature of the proposed amendments is the emphasis on harmonizing the quality, rather than on increasing the quantity, of the information to be compiled and communicated to the competent authorities.

2.3.5. In the Committee`s view, such harmonization is vital to enable the competent authority to take sound decisions regarding land use planning and external emergency plans, notably in the light of possible 'domino effects`.

2.4. Exempted activities

2.4.1. The Committee reiterates its regret that certain activities are exempted (see point 2.5 of its 1980 Opinion).

2.4.2. In addition, the current text is vague regarding the exemption of certain activities. Amendments are therefore suggested below.

2.5. Land use planning

2.5.1. The Committee welcomes the reference, in connection with land use planning (Art. 12.1), to the need, in the long term, to separate establishments covered by the Directive from residential areas, areas of substantial public use and areas of particular natural sensitivity or interest. The public authorities will have to make responsible efforts to minimize risks when they take decisions concerning new industrial or residential installations.

2.5.2. The Committee nevertheless regards technical measures taken within the establishment which have an equivalent effect to separation of the establishment from residential etc. areas as acceptable alternatives to physical separation. This provision is important particularly to existing establishments.

2.6. Information to be supplied to workers and internal emergency plans

2.6.1. The Committee endorses the provisions regarding a management system (Art. 6.1) but is concerned that the clause in Article 4 of Directive 82/501/EEC requiring the information, training and equipment of persons working on the site has been dropped in the proposed Directive.

2.6.2. The Committee advocates its re-introduction since, in its view, it does not duplicate the requirements contained in Directive 89/391/EEC on the safety and health of workers at work (1), on the following grounds:

a) Directive 89/391/EEC requires employers to inform workers and/or their representatives and employers of workers from outside undertakings (Art. 10) and to take specific measures in the event of serious and imminent danger (Art. 8(3));

b) in the case concerned, information - as well as training and equipment - is now already required in all cases and for the entire workforce (without the option of informing only workers` representatives, as provided in Directive 89/391/EEC);

c) information, training and equipment are specifically devised to ensure permanent, ongoing risk prevention and not just to serve as a guide to how to act in the event of serious, imminent danger;

d) in addition to Directive 89/391/EEC the Community has adopted specific directives for particular activities [e.g. carcinogenic substances (No 90/394), video terminals (No 90/270); heavy loads (No 90/269); biological agents (No 90/679)].

2.6.3. The Committee stresses that many major accidents occur during holidays, pre-holiday periods, the night or meal-breaks, probably due to a 'psychological` slackening of attention (both subjective and objective) to preventive and safety measures at times where activity is not in full swing and only shift workers are on duty.

2.6.4. Consequently, as well as the planning, provision and implementation of objective and subjective preventive and safety measures, a management system, complete with procedures, is needed to monitor their application strictly.

2.6.5. The Committee welcomes the provision for internal emergency plans. However, it wonders why no obligation exists to determine, and communicate to the competent authority, the details and frequency of the simulated emergency plan exercises that already take place in virtually all establishments. The Committee advocates the inclusion of such information, which costs nothing and can provide more effective guarantees to the competent authorities and the general public.

2.7. Information of the general public and external emergency plans

2.7.1. The Committee naturally welcomes better information of the general public since it has always stressed the importance of active involvement of the persons exposed to risk, both inside establishments and in the surrounding area.

2.7.2. The proposal would seem to achieve a fair balance in combining transparency of information for safety purposes and guarantees that the secrecy of industrial data will be respected.

2.7.3. However, to harmonize the type of information to be supplied and avoid disputes regarding the quantity and quality of the data to be kept confidential, the Committee requests the Commission to assess whether provision could be made for a suitable 'citizens` information sheet`, to be adopted throughout the Community.

2.8. Threshold quantities for substances (Annex I)

2.8.1. Generally, the Committee agrees with the criteria for determining threshold quantities.

2.8.2. However, it notes that only ten carcinogenic substances (other than dioxins) are subject to a 0.001 tonne threshold; for all others the thresholds are 5 000 times higher (where they are not only carcinogenic but also very toxic) or 50 000 times higher (where also toxic).

2.8.3. The Committee therefore recommends that an additional category be inserted at the end of Part l of Annex I for substances that are both carcinogenic and very toxic or toxic.

3. Specific comments

3.1. Title of the Directive

3.1.1. In the light of the above, the Committee considers that the word 'prevention` should be inserted at the beginning of the title.

3.2. Preamble

3.2.1. The Committee proposes the addition of the following recital:

'Whereas prevention of occupational risks and protection of workers` safety and health at the workplace, as provided for in Directive 89/391/EEC, should be more effectively incorporated into the requirements of this Directive, the Member States should consider placing workers` representatives with specific safety and health protection duties in a position to help, by information and consultation, with the implementation of protective measures and measures to improve management of major-accident hazards provided for in the present Directive;`

3.3. Article 4

3.3.1. The Committee regrets that military installations are to be exempted and is concerned about the exemptions indicated under c), d) and e).

3.3.2. The transport to which indent c) refers could be exempted solely during the time actually necessary for transfer from one storage facility to another, thereby guarding against improper storage of dangerous substances at stations, ports and garages, viz high- risk places where few, if any, information or safety measures are taken.

3.3.3. Appropriate Community rules are needed on the pipeline transmission referred to under indent d).

3.3.4. The last phrase of indent e) - 'including the preparation of extracted materials for sale` - must be deleted. This clause, which does not feature in Directive 82/501/EEC, is very ambiguous, and would give rise to disputes over unacceptable exemption of activities such as refining or 'cracking` (if in connection with boreholes).

3.4. Article 5

3.4.1. The Committee feels that the requirement to inform, train and equip all workers for safety purposes should be spelt out more clearly than in Directive 89/391/EEC. It therefore proposes the addition, at the end of point 5.1 (after 'the environment`), of the following phrase: 'as well as providing the persons working on the site with information, training and equipment in order to ensure their safety`. This wording is the same as that used in Article 4 of Directive 82/501/EEC.

3.4.2. It should also be established that the measures to be taken correspond to the best available safety technology.

3.5. Article 6

3.5.1. In the Committee`s view, a safety management system, complete with procedures, should indicate the details and frequency of workers` information and routine emergency plan exercises. It therefore proposes that point 6.1 be supplemented as follows:

- in c), add 'including hazards arising from incorrect use`,

- after d), add 'arrangements to inform, train and equip workers and persons entering the site for work purposes`;

- after f), add 'the details and frequency of emergency plan simulation exercises`.

3.5.2. The Committee is firmly convinced of the need to ask manufacturers to take measures conducive to prevention and safety while avoiding unnecessary duplication involving expense and inconvenience. Since the information referred to in point 6.3 merely summarizes the particulars of the 'document` which operators are already required to provide under point 6.1, the Committee proposes that this document should be attached to the notification so that the operator avoids any dispute as to its correct formulation.

3.6. Article 8

3.6.1. The Committee welcomes the proposed new provision regarding the identification of groups of establishments whose proximity may increase the likelihood of a major accident.

3.6.2. The Directive`s approach seems the right one in making the competent authority responsible for such information. The Committee would be opposed to making operators jointly responsible for such identification since they have no right whatsoever to obtain information from other operators in the vicinity, who may sometimes also be direct or indirect market competitors.

3.6.3. Though it would seem fair to require operators within a small area to exchange information for safety purposes [see Article 8(2)(b)], difficulties may arise in connection with technical secrecy. The Committee therefore requests the Commission to find a formula which avoids such problems.

3.6.4. In the Committee`s view, the criteria and conditions determined by the Member States [Art. 8(3)] should be published in advance so as to inform operators and the general public, as well as the Commission, as provided in Article 9(7), for other reasons.

3.7. Article 9

3.7.1. The Committee observes that the establishments covered by this Article only theoretically involve an increased major-accident hazard. Indeed if they take more extensive and sophisticated preventive and safety measures, the likelihood of an accident may even be less than in establishments to which Article 9 does not apply.

3.7.2. In the Committee`s view, this point should be amplified, partly to inform the general public properly and to reward those operators which take extra precautions over and above the minimum required by the Directive or the rules of sound practice.

3.7.3. The wording of Article 9(1) is acceptable though a reference in d) to emergency plans is recommended.

3.7.4. The Committee supports the time-limits provided for in Article 9(3) for the sending of safety reports. However, the time-limits provided for in the second indent for existing establishments would delay the despatch of safety reports to 1 January 1998. It should be possible to halve the time (from two years to one), bearing in mind that the vast majority of the establishments concerned are already subject to Directive 82/501/EEC.

3.7.5. The Committee agrees with the periodical review of the safety report. The five year limit indicated in the first indent of Article 9(5) should be reduced to three years.

3.7.6. In the Committee`s view, Article 9.5, second indent, should be amended to read: 'at any time at the explicit and justified request of the competent authority`. This is to prevent overzealous authorities from requesting reviews without proper justification, and to facilitate possible appeals against such requests.

3.7.7. The Committee warmly welcomes the possibility of simplifying the safety report envisaged in Article 9(6) where it is demonstrated that the substances present cannot create a major-accident hazard. This option is rightly a clear incentive to operators which take extensive safety measures and thereby reduce the likelihood of accidents.

3.7.8. In order to avoid possible confusion, with adverse consequences, the Committee recommends that Article 9.5, third indent be qualified by adding at the end the following:

'... of hazards which are relevant to the establishment in question and which could have a substantial impact on the prevention and control of major accident hazards`.

3.8. Article 11

3.8.1. A key factor in forestalling major accidents, and hence limiting the consequences for the population, environment and economies of the areas concerned, is the preparation of, and familiarization with, effective internal and external emergency plans.

3.8.2. The Committee observes that Article 11 applies only to establishments covered by Article 9 and not to all establishments within the scope of the Directive. In its view, all establishments should make provision for internal emergency plans, which involve no additional costs for operators - and indeed may represent a saving on any compensation claims in connection with an accident since effective emergency plans are obviously likely to reduce the scale of damage. The same may not hold good for external emergency plans given that only major accidents occurring in establishments covered by Article 9 can have external consequences.

3.8.3. The Committee therefore suggests that Article 11(1)(a) should apply to all establishments covered by the Directive whereas Article 11(1)(b) and (c) should apply only to establishments covered by Article 9.

3.8.4. The Committee attaches particular importance to the involvement of workers and the public in the preparation of external emergency plans, thereby boosting awareness and possibly limiting any damage.

3.8.5. The Committee welcomes Article 11(6), which should be amplified to include the possibility of providing public information so as to reward operators which have taken extensive preventive and safety measures eliminating major-accident hazards.

3.9. Article 12

3.9.1. The Committee fully endorses the principle of making prevention of major accidents and the limitation of their consequences an integral part of land-use policy and, in the long term, of separating establishments covered by the Directive from residential areas, areas of substantial public use and areas of particular natural sensitivity.

3.10. Article 13

3.10.1. The Committee views frank information of the public as a key factor since 'fore-warned is fore-armed`. Once informed, people can keep damage to a minimum in the event of accidents by avoiding panic and stupid, let alone dangerous or harmful, behaviour.

3.10.2. The Committee suggests that the information and minimum data provided for in Annex IV could be converted into an easy-to-read 'citizens` information sheet` standardized throughout the Community.

3.11. Article 16

In view of the recognized responsibility of management for the planning and organizing of all activities within the establishment, the Committee believes that the words 'planning, organizing` - referring to the competent authorities - could easily cause confusion. It therefore requests the Commission to reconsider the wording of this Article.

3.12. Article 17

3.12.1. The proposed provisions are specific but also demanding. They must therefore be suitably assessed to see whether the same results cannot be achieved by equally effective but less burdensome measures.

3.12.2. The prohibition of activities hits operators and also, indirectly, workers and the economy. It must be reserved for cases of imminent danger.

3.12.3. The Committee therefore recommends that (a) the operator should always first be given a chance to explain and (b) alternative measures should be possible in the cases indicated in the two indents of Article 17(1). Particularly in the case of the first indent (notification not submitted within the specified period) the delay may be due to various causes which do not involve imminent hazards; the individual behaviour of the operator should be penalized rather than the industrial activity concerned. In the second indent too (absence of an external emergency plan) it seems strange to penalize an activity when someone else (the competent authority) is at fault and the operator has fulfilled his obligations.

3.12.4. The Committee, therefore, feels that, in the last sentence of Article 17.1, the word 'seek` should be replaced by 'obtain`. This would remove any uncertainty from the right of the operator to obtain compensation.

3.13. Article 18

3.13.1. Though the Committee supports the system of inspections, it would stress that the persons responsible should also consult the representatives of the workforce.

3.14. Article 23

Add the following at the end of Article 23:

'During the transition period between the repeal of Directive 82/501/EEC and the obligation to furnish a new Safety Report, Emergency Plan, etc., for existing establishment, the existing Safety Reports, Emergency Plans, etc., shall remain valid.`

4. Annexes to the Directive

4.1. The Committee confirms its approval of Annex I and of the division into two categories (depending on the qualifying quantities of dangerous substances indicated in columns 2 and 3).

4.2. However, the Committee observes that, in the current wording, where substances are present both in Part 1 (named substances) and Part 2 (criteria), the quantities indicated in Part 1 are applicable.

4.3. The Committee endorses this approach only if the quantities indicated in Part 1 are smaller than in Part 2, on the general principle that the greatest possible precaution must be observed.

4.4. In the Committee`s view, individual exemptions can be envisaged only for substances where it can be shown, on specific and substantiated technical and scientific grounds, that the risk of a major accident is very small though generically they fall within one of the Part 2 categories.

4.5. The Committee also advocates a quantity threshold for substances that are both carcinogenic (or mutagenic) and very toxic (or toxic). In the Seveso disaster the total dioxin emission totalled approx. 0.0004-0.0005 tonnes; it is hard to see why the qualifying quantity for substances that are both carcinogenic and very toxic (toxic) proposed in the Directive is 5(50) tonnes.

4.6. The Committee proposes that Part 1 of Annex I be amended to include the following substances, adjusting the quantities indicated for columns 2 and 3 according to the increased risk:

- carcinogens (R45) (categories 1 and 2) which are also very toxic (T +) or toxic (T);

- carcinogens (category 3) or mutagens (R40) which are also very toxic (T +) or toxic (T).

4.7. In addition, a detailed reappraisal of the quantities indicated for liquefied petroleum gas (including propane and butane) is needed. These substances are extremely flammable (Cf. Part 2, point 8), but the tanks used for their storage are very common in industry and commerce. A further lowering of the quantities applicable at the moment would have far-reaching consequences. Accident and damage statistics should be used as a basis for investigating whether a lowering of the quantities is necessary and justified.

4.8. As regards Annex 2.5(b), the Committee takes the view that any change in the names of the responsible persons merely necessitates notification; there is no need to amend the safety report referred to in Article 9.

Done at Brussels, 2 June 1994.

The Chairman

of the Economic and Social Committee

Susanne TIEMANN

(1) OJ No C 106, 14. 4. 1994, p. 4.

(2) OJ No L 230, 5. 8. 1982, p. 1.

(3) OJ No C 182, 21. 7. 1980, p. 25.

(4) OJ No L 183, 29. 6. 1989, p. 1.