Common Position (EC) No 15/2003 of 20 February 2003 adopted by the Council, acting in accordance with the procedure referred to in Article 251 of the Treaty establishing the European Community, with a view to adopting a Directive of the European Parliament and of the Council amending Council Directive 96/82/EC on the control of major-accident hazards involving dangerous substances
Date: 2003-02-20
Institutions: Council of the European Union
Subjects: chemical pollution, dangerous substance, environmental protection, environmental risk prevention, industrial hazard, safety standard

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I

(Information)

COUNCIL

COMMON POSITION (EC) No 15/2003

adopted by the Council on 20 February 2003

with a view to the adoption of a Directive of the European Parliament and of the Council
amending Council Directive 96/82/EC on the control of major-accident hazards involving
dangerous substances

(2003/C 102 E/01)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,

Having regard to the Treaty establishing the European
Community, and in particular Article 175(1) thereof,

Having regard to the proposal from the Commission (1),

Having regard to the opinion of the European Economic and
Social Committee (2),

Having regard to the opinion of the Committee of the Regions,

Acting in accordance with the procedure laid down in Article
251 of the Treaty (3),

Whereas:

(1) Council Directive 96/82/EC of 9 December 1996 on the
control of major-accident hazards involving dangerous
substances (4) aims at the prevention of major accidents
which involve dangerous substances 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)

In the light of recent industrial accidents and studies on
carcinogens and substances dangerous for the environment
carried out by the Commission at the Council's request,
the scope of Directive 96/82/EC should be extended.

(3) The cyanide spill that polluted the Danube following the
accident at Baia Mare in Romania in January 2000 has
demonstrated that certain storage and processing activities
in mining have a potential to produce very serious conse-
quences. The Commission Communications on the safe
sixth
activities
operation of mining
environment
European
programme
Community have therefore highlighted the need for an
extension of
In its
Resolution of 5 July 2001 on the Commission Communi-
cation on the safe operation of mining activities,
the
European Parliament also welcomed the extension of the
scope of that Directive to cover risks arising from storage
and processing activities in mining.

the scope of Directive 96/82/EC.

and on the
the

action

of

(4) The ‘fireworks accident’ at Enschede in the Netherlands in
May 2000 has demonstrated the major accident potential
arising from storage and manufacture of pyrotechnic and
explosive substances. The definition of such substances in
Directive 96/82/EC should therefore be clarified and
simplified.

(5) The

in Toulouse

in
explosion at a fertiliser plant
September 2001 has raised awareness of
the accident
potential arising from the storage of ammonium nitrate
and ammonium nitrate-based fertilisers,
in particular of
material rejected during the manufacturing process or
returned to the manufacturer (so-called ‘off-specs’). The
existing categories of ammonium nitrate and ammonium
nitrate-based fertilisers
in Directive 96/82/EC should
therefore be reviewed with a view to include ‘off-specs’
material.

(1) OJ C 75 E, 26.3.2002, p. 357.
(2) OJ C 149, 21.6.2002, p. 13.
(3) Opinion of

the European Parliament of 3 July 2002 (not yet
published in the Official
Journal), Council Common Position of
20 February 2003 and Decision of the European Parliament of
. . . (not yet published in the Official Journal).

(4) OJ L 10, 14.1.1997, p. 13.

(6) Directive 96/82/EC should not be applied to sites of
end-users where
ammonium nitrate and ammonium
nitrate-based fertilisers, which on delivery conformed to
the specification in that Directive but subsequently have
become degraded or contaminated, are temporarily present
prior to removal for reprocessing or destruction.

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(7) Studies carried out by the Commission in close coop-
eration with the Member States support extending the
list of carcinogens with appropriate qualifying quantities
and significantly
quantities
assigned to substances dangerous for the environment in
Directive 96/82/EC.

qualifying

lowering

the

(8)

For establishments which subsequently fall within the
it has been shown
scope of Directive 96/82/EC,
necessary to introduce minimum periods for notifications
and the establishment of major accident prevention
policies, safety reports and emergency plans.

(9) The experience and knowledge of relevant staff in the
establishment can greatly assist
in the drawing up of
emergency plans, and all staff in an establishment and
persons likely to be affected should be appropriately
informed on safety measures and actions.

23 October

(10) The adoption of Council Decision 2001/792/EC, Euratom
of
a Community
mechanism to facilitate reinforced cooperation in civil
protection assistance interventions (1) highlights the need
to facilitate reinforced cooperation in civil protection
assistance interventions.

establishing

2001

(11) It is useful, in order to facilitate land-use planning, to draw
up guidelines defining a database to be used for assessing
the compatibility between the establishments covered by
Directive 96/82/EC and the areas described in Article
12(1) of that Directive.

(12) There should be an obligation on Member States to supply
the Commission with minimum information concerning
the establishments covered by Directive 96/82/EC.

(13) It

is appropriate at

the same time to clarify certain

passages in Directive 96/82/EC.

(14) The measures provided for in this Directive have been the
involving

consultation process

a public

subject of
interested parties.

(15) Directive

96/82/EC should

therefore

be

amended

accordingly,

1.

in Article 4:

— points (e) and (f) shall be replaced by the following:

‘(e) the

extraction

exploitation

and
(exploration,
processing) of minerals in mines, quarries, or by
means of boreholes, with the
exception of
chemical and thermal processing operations and
storage related to those operations which involve
dangerous substances, as defined in Annex I;

(f) the offshore

exploration and exploitation of

minerals, including hydrocarbons;’,

— the following point shall be added:

‘(g) waste land-fill sites with the exception of active
including tailing ponds
tailings disposal facilities,
substances as
or dams,
defined in Annex I and used in connection with
the chemical and thermal processing of minerals.’;

containing dangerous

2. the following indent shall be added in Article 6(1):

‘— for establishments which subsequently fall within the
scope of this Directive, within three months after the
date on which this Directive applies to the estab-
lishment
first
concerned,
subparagraph of Article 2(1).’;

laid down in the

as

3. the following paragraph shall be inserted in Article 7:

‘1a.
For establishments which subsequently fall within
the scope of this Directive, the document referred to in
paragraph 1 shall be drawn up without delay, but at all
events within three months after the date on which this
Directive applies to the establishment concerned, as laid
down in the first subparagraph of Article 2(1).’;

4. point (b) of Article 8(2) shall be replaced by the following:

‘(b) provision is made for cooperation in informing the
public and in supplying information to the authority
responsible for the preparation of external emergency
plans.’;

HAVE ADOPTED THIS DIRECTIVE:

5. the first subparagraph of Article 9(2) shall be replaced by

the following:

Article 1

Directive 96/82/EC is hereby amended as follows:

(1) OJ L 297, 15.11.2001, p. 7.

‘2.
The safety report shall contain at least the data and
information listed in Annex II. It shall name the relevant
organisations involved in the drawing up of the report. It
shall also contain an updated inventory of the dangerous
substances present in the establishment.’;

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6. (a) the following indent shall be inserted between the third

and fourth indents of Article 9(3):

measures in accordance with Article 5 so as not
increase the risks to people.’;

to

‘— for establishments which subsequently fall within
the scope of this Directive, without delay, but at
all events within one year after the date on which
this Directive
establishment
concerned, as laid down in the first subparagraph
of Article 2(1),’;

applies

the

to

(b) in Article 9(4), the reference to ‘the second, third, and
fourth indents’ shall become ‘the second, third, fourth
and fifth indents’ respectively;

10. the following paragraph shall be inserted in Article 12:

The Commission is invited,

‘1a.
in close cooperation
with the Member States, to draw up guidelines defining
a technical database to be used for assessing the compati-
bility between the establishments covered by this Directive
and the areas described in paragraph 1. The definition of
this database shall
the technical and
take account of
scientific evaluations performed by the Member States,
the information obtained from operators and all other
relevant information.’;

7. the following indent shall be added to points (a) and (b) of

Article 11(1):

11. the first subparagraph of Article 13(1) shall be replaced by

the following:

‘— for establishments which subsequently fall within the
scope of this Directive, without delay, but at all events
within one year after the date on which this Directive
applies to the establishment concerned, as laid down
in the first subparagraph of Article 2(1).’;

8. Article 11 shall be amended as follows:

‘1. Member States shall ensure that
information on
safety measures and on the requisite behaviour in the
event of an accident
is supplied regularly and in the
most appropriate form, without their having to request
it,
serving the
public (such as
liable to be
affected by a major accident originating in an estab-
lishment covered by Article 9.’;

to all persons and all establishments

schools and hospitals)

— paragraph 3 shall be replaced by the following:

12. Article 13(6) shall be replaced by the following:

the
‘3. Without prejudice to the obligations of
competent authorities, Member States
shall ensure
that the internal emergency plans provided for in this
Directive are drawn up in consultation with the
personnel working inside the establishment, including
long-term relevant subcontracted personnel and that
the public is consulted on external emergency plans
when they are established or updated.’,

— the following paragraph shall be inserted:

‘4a. With regard to external
emergency plans,
Member States should take into account the need to
facilitate enhanced cooperation in civil protection
assistance in major emergencies.’;

9. the second subparagraph of Article 12(1) shall be replaced

by the following:

and

policies

relevant

their land-use and/or
‘Member States shall ensure that
other
for
procedures
the
implementing those policies take account of the need, in
the long term, to maintain appropriate distances between
establishments covered by this Directive and residential
areas, buildings and areas of public use, major transport
routes as far as possible, recreational areas and areas of
particular natural sensitivity or interest and, in the case of
existing establishments, of the need for additional technical

In the

case of

establishments

‘6.
to the
provisions of Article 9, Member States shall ensure that
the inventory of dangerous substances provided for in
Article 9(2)
is made available to the public subject to
the provisions of paragraph 4 of this Article and Article
20.’;

subject

13. the following paragraph shall be inserted in Article 19:

For

establishments

covered by this Directive,
‘1a.
Member States shall supply the Commission with at least
the following information:

(a) the name or trade name of the operator and the full

address of the establishment concerned; and

(b) the activity or activities of the establishment.

The Commission shall set up and keep up to date a
database containing the information supplied by the
Member States. Access to the database shall be reserved
to persons
the
competent authorities of the Member States.’;

the Commission or

authorised by

14. Annex I shall be amended as set out in the Annex.

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15.

in Annex III, point
following:

(c),

(i) shall be replaced by the

methods of making such reference shall be laid down by
Member States.

‘(i) organisation and personnel — the roles and responsi-
involved in the management of
bilities of personnel
major hazards at all
levels in the organisation. The
identification of training needs of such personnel and
the training so identified. The
the provision of
involvement of
subcontracted
personnel working in the establishment.’

employees

and of

2. Member States shall communicate to the Commission the
text of the main provisions of national law which they adopt in
the field covered by this Directive.

Article 3

This Directive shall enter into force on the day of its publi-
cation in the Official Journal of the European Union.

Article 2

1. Member States shall bring into force the laws, regulations
and administrative provisions necessary to comply with this
Directive before . . . (*). They shall
forthwith inform the
Commission thereof.

Article 4

This Directive is addressed to the Member States.

. . .

When Member States adopt these measures, they shall contain
a reference to this Directive or shall be accompanied by such a
reference on the occasion of their official publication. The

For the European Parliament

The President

For the Council

The President

(*) 18 months after entry into force of this Directive.

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ANNEX

Annex I to Directive 96/82/EC is hereby amended as follows:

1. The following points shall be added to the Introduction:

‘6. For the purposes of this Directive, a gas is any substance that has an absolute vapour pressure equal to or greater

than 101,3 kPa at a temperature of 20 °C.

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 20 °C and at a standard pressure of 101,3 kPa.’

2. In the table in Part 1:

(a) the entries relating to ‘Ammonium nitrate’ shall be replaced by the following:

Column 1

Column 2

Column 3

Dangerous substances

Qualifying quantity (tonnes) for the application of

Articles 6 and 7

Article 9

‘Ammonium nitrate

Ammonium nitrate

Ammonium nitrate

Ammonium nitrate

5 000

1 250

350

10

10 000

5 000

2 500

50’

(b) the entry relating to ‘The following CARCINOGENS’ shall be replaced by the following:

Column 1

Column 2

Column 3

Dangerous substances

Qualifying quantity (tonnes) for the application of

Articles 6 and 7

Article 9

‘The following CARCINOGENS at concentrations above 5 % by
weight:

salts,

and/or

4-Aminobiphenyl
Benzotrichloride,
its
Benzidine and/or salts, Bis (chloromethyl) ether, Chloro-
methyl methyl ether, 1,2-Dibromoethane, Diethyl sulphate,
Dimethyl
chloride,
1,2-Dimethylhydrazine,
1,2-Dibromo-3-chloropropane,
Dimethylnitrosamine,
triamide,
Hydrazine, 2- Naphthylamine and/or salts, 4-Nitrodiphenyl,
and 1,3 Propanesultone

Hexamethylphosphoric

Dimethylcarbamoyl

sulphate,

0,5

2’

(c) the entry relating to ‘Automotive petrol and other petroleum spirits’ shall be replaced by the following:

Column 1

Column 2

Column 3

Dangerous substances

Qualifying quantity (tonnes) for the application of

Articles 6 and 7

Article 9

‘Petroleum products

(a) gasolines and naphthas,

(b) kerosenes (including jet fuels),

(c) gas oils (including diesel fuels, home heating oils and gas oil

blending streams)

2 500

25 000’

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(d) (i) Notes 1 and 2 shall be replaced by the following:

‘1. Ammonium nitrate (5 000/10 000): fertilisers capable of self-sustaining decomposition

This applies to ammonium nitrate-based compound/composite fertilisers (compound/composite fertilisers
contain ammonium nitrate with phosphate and/or potash) in which the nitrogen content as a result of
ammonium nitrate is

— between 15,75 % (1) and 24,5 % (2) by weight, and either with not more than 0,4 % total combustible/

organic materials or which fulfil the requirements of Annex II of Directive 80/876/EEC,

— 15,75 % (3) by weight or less and unrestricted combustible materials,

and which are capable of self-sustaining decomposition according to the UN Trough Test (see United
Nations Recommendations on the Transport of Dangerous Goods: Manual of Tests and Criteria, Part III,
subsection 38.2).

2. Ammonium nitrate (1 250/5 000): fertiliser grade

This applies to straight ammonium nitrate-based fertilisers and to ammonium nitrate-based compound/
composite fertilisers in which the nitrogen content as a result of ammonium nitrate is

— more than 24,5 % by weight, except for mixtures of ammonium nitrate with dolomite, limestone

and/or calcium carbonate with a purity of at least 90 %,

— more than 15,75 % by weight for mixtures of ammonium nitrate and ammonium sulphate,

— more than 28 % (4) by weight for mixtures of ammonium nitrate with dolomite, limestone and/or

calcium carbonate with a purity of at least 90 %,

and which fulfil the requirements of Annex II of Directive 80/876/EEC.

3. Ammonium nitrate (350/2 500): technical grade

This applies to

— ammonium nitrate and preparations of ammonium nitrate in which the nitrogen content as a result of

the ammonium nitrate is

— between 24,5 % and 28 % by weight, and which contain not more than 0,4 % combustible

substances,

— more than 28 % by weight, and which contain not more than 0,2 % combustible substances,

— aqueous ammonium nitrate solutions in which the concentration of ammonium nitrate is more than

80 % by weight.

4. Ammonium nitrate (10/50): “off-specs” material and fertilisers not fulfilling the detonation test

This applies to:

— material rejected during the manufacturing process and to ammonium nitrate and preparations of
ammonium nitrate,
straight ammonium nitrate-based fertilisers and ammonium nitrate-based
compound/composite fertilisers referred to in Notes 2 and 3, that are being or have been returned
from the final user to a manufacturer, temporary storage or reprocessing plant for reworking, recycling
or treatment for safe use, because they no longer comply with the specifications of Notes 2 and 3;

— fertilisers referred to in Note 1, first indent, and Note 2 which do not fulfil the requirements of Annex

II of Directive 80/876/EEC.’

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(ii) The note relating to polychlorodibenzofurans and polychlorodibenzodioxins shall become Note 5.

(iii) the following footnotes shall appear below the table entitled ‘International Toxic Equivalent Factors (ITEF) for

the congeners of concern (NATO/CCMS)’:

‘

(1)

15,75 % nitrogen content by weight as a result of ammonium nitrate corresponds to 45 % ammonium
nitrate.

(2) 24,5 % nitrogen content by weight as a result of ammonium nitrate corresponds to 70 % ammonium

nitrate.

(3) 15,75 % nitrogen content by weight as a result of ammonium nitrate corresponds to 45 % ammonium

nitrate.

(4) 28 % nitrogen content by weight as a result of ammonium nitrate corresponds to 80 % ammonium

nitrate.’

3. In Part 2:

(a) entries 4 and 5 shall be replaced by the following:

Column 1

Column 2

Column 3

Dangerous substances

Qualifying quantity (tonnes) for the application of

Articles 6 and 7

Article 9

‘4. EXPLOSIVE (see Note 2) where the substance, preparation or

article falls under UN/ADR Division 1.4

5. EXPLOSIVE (see Note 2) where the substance, preparation or
article falls under any of: UN/ADR Divisions 1.1, 1.2, 1.3, 1.5
or 1.6 or risk phrase R2 or R3

50

10

200

50’

(b) entry 9 shall be replaced by the following:

Column 1

Column 2

Column 3

Dangerous substances

Qualifying quantity (tonnes) for the application of

Articles 6 and 7

Article 9

‘9. DANGEROUS FOR THE ENVIRONMENT risk phrases:

(i) R50:

“Very toxic

to aquatic organisms”

(including

R50/53)

(ii) R51/53: “Toxic to aquatic organisms; may cause long

term adverse effects in the aquatic environment”

100

200

200

500’

(c)

In the Notes:

(i) Note 1 shall be replaced by the following:

‘1. Substances and preparations are classified according to the following Directives and their current adap-

tation to technical progress:

— Council Directive 67/548/EEC of 27 June 1967 on the approximation of the laws, regulations and
administrative provisions relating to the classification, packaging and labelling of dangerous
substances (1),

— Directive 1999/45/EC of the European Parliament and of the Council of 31 May 1999 concerning
the approximation of laws, regulations and administrative provisions of the Member States relating
to the classification, packaging and labelling of dangerous preparations (2).

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In the case of substances and preparations which are not classified as dangerous according to either of
the above Directives, for example waste, but which nevertheless are present, or are likely to be present,
in an establishment and which possess or are likely to possess, under the conditions found at the
establishment, equivalent properties in terms of major-accident potential, the procedures for provisional
classification shall be followed in accordance with the relevant article of the appropriate Directive.

In the case of substances and preparations with properties giving rise to more than one classification, for
the purposes of this Directive the lowest qualifying quantities shall apply. However, for the application of
the rule in Note 4, the qualifying quantity used shall always be the one corresponding to the classifi-
cation concerned.

For the purposes of this Directive, the Commission shall establish and keep up to date a list of
substances which have been classified into the above categories by a harmonised Decision in accordance
with Directive 67/548/EEC.’

(ii) Note 2 shall be replaced by the following:

‘2. An “explosive” means:

— a substance or preparation which creates the risk of an explosion by shock, friction, fire or other

sources of ignition (risk phrase R2),

— a substance or preparation which creates extreme risks of explosion by shock, friction, fire or

other sources of ignition (risk phrase R3), or

— a substance, preparation or article covered by Class 1 of the European Agreement concerning the
International Carriage of Dangerous Goods by Road (UN/ADR), concluded on 30 September
1957, as amended, as transposed by Council Directive 94/55/EC of 21 November 1994 on the
approximation of the laws of the Member States with regard to the transport of dangerous goods
by road (3).

Included in this definition are pyrotechnics, which for the purposes of this Directive are defined as
substances (or mixtures of substances) designated to produce heat, light, sound, gas or smoke or a
combination of such effects through self-sustained exothermic chemical reactions. Where a substance
or preparation is classified by both UN/ADR and risk phase R2 or R3, the UN/ADR classification
shall take precedence over assignment of risk phrases.

Substances and articles of Class 1 are classified in any of the divisions 1.1 to 1.6 in accordance with
the UN/ADR classification scheme. The divisions concerned are:

Division 1.1: “Substances and articles which have a mass explosion hazard (a mass explosion is an
explosion which affects almost the entire load virtually instantaneously).”

Division 1.2: “Substances and articles which have a projection hazard but not a mass explosion
hazard.”

Division 1.3: “Substances and articles which have a fire hazard and either a minor blast hazard or a
minor projection hazard or both, but not a mass explosion hazard:

(a) combustion of which gives rise to considerable radiant heat; or

(b) which burn one after another, producing minor blast or projection effects or both.”

Division 1.4: “Substances and articles which present only a slight risk in the event of ignition or
initiation during carriage. The effects are largely confined to the package and no projection of
fragments of appreciable size or range is to be expected. An external fire shall not cause virtually
instantaneous explosion of virtually the entire contents of the package.”

Division 1.5: “Very insensitive substances having a mass explosion hazard which are so insensitive
that there is very little probability of initiation or of transition from burning to detonation under
normal conditions of carriage. As a minimum requirement they shall not explode in the external fire
test.”

Division 1.6: “Extremely insensitive articles which do not have a mass explosion hazard. The articles
contain only extremely insensitive detonating substances and demonstrate a negligible probability of
accidental initiation or propagation. The risk is limited to the explosion of a single article.”

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Included in this definition are also explosive or pyrotechnic substances or preparations contained in
articles. In the case of articles containing explosive or pyrotechnic substances or preparations, if the
quantity of the substance or preparation contained is known, that quantity shall be considered for the
purposes of this Directive. If the quantity is not known, then, for the purposes of this Directive, the
whole article shall be treated as explosive.’

(iii) in Note 3(b)1, the second indent shall be replaced by the following:

‘— substances and preparations which have a flash point lower than 55 °C and which remain liquid
such as high pressure or high

under pressure, where particular processing conditions,
temperature, may create major-accident hazards;’

(iv) Note 3(c)2 shall be replaced by the following:

‘2. gases which are flammable in contact with air at ambient temperature and pressure (risk phrase

R12, second indent), which are in a gaseous or supercritical state, and’;

(v) Note 3(c)3 shall be replaced by the following:

‘3.

flammable and highly flammable liquid substances and preparations maintained at a temperature
above their boiling point.’;

(vi) Note 4 shall be replaced by the following:

‘4. In the case of an establishment where no individual substance or preparation is present in a
quantity above or equal to the relevant qualifying quantities, the following rule shall be applied to
determine whether the establishment is covered by the relevant requirements of this Directive.

This Directive shall apply if the sum:

q1/QU1 + q2/QU2 + q3/QU3 + q4/QU4 + q5/QU5 + . . . is greater than or equal to 1,

where qx = the quantity of dangerous substance x (or category of dangerous substances) falling
within Parts 1 or 2 of this Annex,

and QUX = the relevant qualifying quantity for substance or category x from column 3 of Parts 1
or 2.

This Directive shall apply, with the exception of Articles 9, 11 and 13, if the sum:

q1/QL1 + q2/QL2 + q3/QL3 + q4/QL4 + q5/QL5 + . . . is greater than or equal to 1,

where qx = the quantity of dangerous substance x (or category of dangerous substances) falling
within Parts 1 or 2 of this Annex,

and QLX = the relevant qualifying quantity for substance or category x from column 2 of Parts 1
or 2.

This rule shall be used to assess the overall hazards associated with toxicity, flammability, and
eco-toxicity. It must therefore be applied three times:

(a) for the addition of substances and preparations named in Part 1 and classified as toxic or very

toxic, together with substances and preparations falling into categories 1 or 2;

(b) for the addition of substances and preparations named in Part 1 and classified as oxidising,
explosive, flammable, highly flammable, or extremely flammable, together with substances
and preparations falling into categories 3, 4, 5, 6, 7a, 7b or 8;

(c)

for the addition of substances and preparations named in Part 1 and classified as dangerous
for the environment (R50 (including R50/53) or R51/53), together with substances and
preparations falling into categories 9(i) or 9(ii);

The relevant provisions of this Directive apply if any of the sums obtained by (a), (b) or (c) is
greater than or equal to 1.’

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(vii) the following footnotes shall appear at the end of the Notes:

‘

(1)

OJ L 196, 16.8.1967, p. 1. Directive as last amended by Commission Directive 2001/59/EC (OJ L
225, 21.8.2001, p. 1).

(2) OJ L 200, 30.7.1999, p. 1. Directive as amended by Commission Directive 2001/60/EC (OJ L

226, 22.8.2001, p. 5).

(3) OJ L 319, 12.12.1994, p. 7. Directive as last amended by Commission Decision 2002/886/EC (OJ

L 308, 9.11.2002, p. 45).’

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STATEMENT OF THE COUNCIL'S REASONS

I. INTRODUCTION

1. On 11 December 2001, the Commission presented to the Council its proposal for a Directive of the
European Parliament and of the Council amending Directive 96/82/EC relating to the control of
major-accident hazards involving dangerous substances (Seveso II).

2. The European Parliament gave its opinion on 3 July 2002.

The Economic and Social Committee adopted its opinion on 9 April 2002.

The Committee of the Regions announced its intention not to give an opinion by letter dated 9 April
2002.

3. On 20 February 2003, the Council adopted its common position in accordance with Article 251(2)

of the Treaty.

II. OBJECTIVE

Council Directive 96/82/EC of 9 December 1996 on the control of major-accident hazards involving
dangerous substances (1) (so-called Seveso II Directive) aims at the prevention of major accidents which
involve dangerous substances, 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.

The principal novelty of that new Directive which had to be applied in the Member States from
3 February 1999, consists of the introduction of an obligation for industrial operators to put into
effect safety management systems including a detailed risk assessment using possible accident scenarios.
Such a risk assessment plays a key role in preventing major accidents. Moreover, the obligation to
provide information to the public on industrial risks and on the behaviour to adopt in the case of an
accident is of paramount importance for the limitation of the consequences of major accidents.

In the light of recent industrial accidents in Baia Mare/Romania (a tailings pond damburst resulting in
cyanide poisoning of several river basins) and Enschede/Netherlands (explosions in a fireworks factory
causing the death of 22 people and injury to almost 1 000), and following studies on carcinogens and
substances dangerous for the environment carried out by the Commission on request of the Council,
the scope of the 1996 Directive now needs to be broadened in order to achieve the goals of the
Directive.

The Commission had also given consideration as to whether the explosion of the chemical site of AZF
that occurred in Toulouse on 21 September 2001 (detonation of Ammonia-Nitrate causing death of 30
people and injury to 2 400) necessitated immediate amendments of the Seveso II Directive. However,
that site was fully covered by the obligations of the Directive (contrary to the sites in Baia Mare and
Enschede) and moreover, the Commission did not wish to significantly delay the coverage of estab-
lishments that should be brought under the scope of Seveso II as soon as possible from an environ-
mental protection and safety point of view. However, during both Council's consideration of the
proposal and the European Parliament's first reading it became clear that there was a strong feeling
that account should be taken of the Toulouse accident in this proposal and suitable amendments have
been introduced in the Council's common position.

The obligations to comply with the different safety requirements imposed by the Directive are triggered
according to the tonnage (qualifying quantity) of the dangerous substance, or class of dangerous
substance, which is held on the industrial site. These thresholds are identified in Annex I to the
Directive (Part 1 of the Annex refers to specific substances and Part 2 to classes of substances). This
amendment changes several of the thresholds, adds some new substances and changes some of the
classes of substances. The Commission undertook extensive consultation with industry and the Member
States to arrive at this proposal. There seems to be general consensus that the proposal is a sensible
reaction to the accidents and that it should be agreed as soon as possible to ensure that similar
accidents can be avoided in the future.

(1) OJ No L 10, 14.1.1997, p. 13.

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III. ANALYSIS OF THE COMMON POSITION

1. General

The main issues are:

— exemption of mining operations from this Directive. The Commission's amendment proposes
that any chemical and thermal processing operations, plus storage related to it, which involves
Annex I substances would not be exempt from the Directive, even if carried out in connection
with mining. Tailings disposal facilities used in connection with such processing operations are
also now covered by the Directive, however, offshore exploration and exploitation of minerals is
not covered,

— the Council introduced time limits providing a period of time for establishments falling under
the scope of the Directive due to this amendment to comply with all the requirements of the
Directive,

— in relation to Part 2 of Annex I to the Directive the Commission's proposal for the alteration to
the classification system for explosives was amended slightly to take account of other classifi-
cation systems,

— amendments to take account of the Toulouse accident were agreed, these create four classes of
ammonium nitrate each having different thresholds and requirements, according to the danger
involved in their storage,

— following receipt of the EP's first reading many amendments relating to provision of information

were also incorporated into the common position.

2. European Parliament amendments

In its Plenary vote on 3 July 2002, the EP adopted 47 amendments to the proposal (of which eight
related to the original Commission proposal). 21 of these have been incorporated (17 to the
Articles, two to the Annex and two to the recitals), either verbatim, in part or in spirit, into the
Council's common position.

(a) The 21 amendments which have been incorporated into the common position can be grouped

as follows:

five Amendments accepted verbatim:

Amendments 1 and 2: recitals on the Toulouse accident;

Amendment 32: on information which must be provided to those likely to be affected, the
Council accepts this amendment which clarifies who should be informed;

Amendment 37:
information about the establishments covered by the Directive;

requires Member States to provide the Commission with certain basic

Amendment 39: new categories and thresholds for ammonium nitrate, following analysis after the
Toulouse accident.

16 Amendments accepted in principle or in part:

Amendments 7 and 8: clarify the scope in relation to mining activities, tailing ponds must be
‘operational’, the Council prefers the use of the word ‘active’ and maintains the words ‘chemical
and thermal’; and the exclusion of ‘offshore exploitation’ is moved into a separate paragraph;

Amendments 9, 13, 18, 23, and 24: provide establishments that will come into the scope of the
Directive at a later stage with sufficient time limits for submission of notifications, safety reports,
the establishment of a major accident prevention policy and internal and external emergency
plans, the wording has been slightly amended in the common position;

Amendment 16: accept alteration to description of authority responsible for preparation of
external emergency plans, but given rejection of Amendment 15 replace the words ‘informing
the public and’;

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Amendment 17: the Council accepts the first part of this amendment, but prefers the use of the
‘relevant organisations’ instead of ‘persons’ involved in drawing up the safety report;

in relation to consultation on the preparation and review of the
Amendments 25 and 26:
emergency plans the Council has merged these two amendments into a revision of Article
11(3) which includes a reference to ‘long-term relevant subcontracted personnel’;

Amendment 27: making reference to the need to facilitate enhanced cooperation in civil
protection assistance interventions is supported by the Council, with reference to the respective
Council Decision 2001/792/EC made in the recitals;

Amendment 54: modifies the Article on land-use planing by listing specific developments which
must be separated from Seveso II establishments. The Council felt that this list could be seen as
examples of the term ‘areas of public use’, it did not include all of the suggestions: ‘industrial
establishments’ was deleted and the reference to transport routes in the common position is
adjusted to ‘major transport routes as far as possible’;

Amendment 55: adds a new paragraph to Article 12 obliging the Commission to draw up
guidelines for a database of harmonised information to be used to assess compatibility between
Seveso II establishments and the sensitive areas listed in Article 12. In principle the Council
accepts this idea but has altered the wording, it now invites the Commission to undertake this
task;

Amendment 45: with a very minor adjustment to the text, in the common position the words
this
‘subcontracted personnel’
amendment to the Annex defining certain information which has to be included in the safety
management system;

the word ‘subcontractors’,

the Council accepts

replaces

Amendment 53: proposes definitions of the four new categories for ammonium nitrate referred
to in Amendment 39 (following the Toulouse accident), in the common position the wording
has been amended slightly in Notes 1 and 3 in relation to the reference percentages used.

(b) The 26 amendments which have not been incorporated can be grouped as follows:

Amendments 3 to 5: proposed recitals arising from the Toulouse accident, the Council preferred
Amendments 1 and 2 and felt that the content of those two accepted amendments was sufficient
and balanced;

Amendment 6: the Council wants to limit this inclusion to ‘chemical and thermal processing
operations’; it does not want to bring other mining activities within the scope of this Directive,
such a reference might be taken up in the awaited draft Directive on mining waste;

Amendments 10 and 35: the issue of staff training is currently dealt with in Annexes III (safety
management systems) and IV (emergency plans) and is already contained in the safety report; the
Council does not feel it is appropriate that this information has to be included in the notifi-
cation;

Amendments 11, 21 and 22: relate to requirements to notify changes to installations. Such
requirements already exist under Article 9 for upper tier establishments and the need for
lower tier establishments is not justified as it would introduce additional bureaucratic burdens
without safety improvements (principle of proportionality). Any significant increase in the
quantity of dangerous substances held must already be notified (Article 6);

Similarly Amendment 19: would require review of the safety report if changes in the ‘work
organisation’ of an installation take place, the Council did agree that such a review would
always be necessary, significant changes would require adaptation of the report anyway, but
not necessarily a formal review;

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Amendment 36: in the same field, would require suspension of activities where information on
such changes/modifications and on training are not supplied. Article 17 already provides
Member States with the power to suspend activities if information supplied is incomplete;

Amendment 12: the Council does not see any need to add the phrase ‘and evidencing his
compliance with his obligations’, the operator is already obliged to ensure the major accident
prevention policy ‘is properly implemented’. This will
involve production of a number of
documents which evidence compliance with the plan;

Amendment 14: on the prevention of domino effects the Council does not see the need to
cross-refer to Article 12 (land-use planning) as the operator already has an obligation to
ensure that the possibility of domino effects between establishments is properly taken into
account in their major accidents prevention policy;

Amendments 15, 33 and 34: concern public access to information on possible domino effects and
on safety requirements and emergency plans. The amendments detail the methods by which this
information could be made available. The Council does not wish to incorporate these
amendments as it sees this as largely a subsidiarity matter for national and local authorities
and supports the Commission view that there is already a good balance in this Directive
between information which has to be made available and that which can be requested;

Amendment 20: proposes a single European method for drawing up safety reports, the Council
agrees with the Commission that this would not be practical given the wide variety of types of
chemical installations;

Amendment 28: would require Member Sates to notify the civil protection monitoring and
information centre of any accident. Given that the role of this centre is to facilitate cooperation
in civil protection assistance interventions a general requirement to inform does not seem, to the
Council, to be appropriate;

introduces further requirements in relation to land use planning which the
Amendment 29:
Council does not accept as they are either not consistent with the current structure of Article
12, or are already covered there;

Amendment 31: asks the Commission to develop an incentive scheme for the relocation of
Seveso establishments to improve safety distances, the Council view is that any such scheme
should be more appropriately introduced at the national level;

Amendment 38: aims at restricting ‘commercial or industrial secrecy’ exclusively to processes, and
not to information concerning the storage of dangerous substances. Although recognising the
importance of provision of information, the Council does not find it appropriate to restrict the
concept of commercial or industrial secrecy;

Amendments 40 and 42: propose the creation of two new entries for potassium nitrate, are
rejected by the Council on the basis that it has not seen sufficient detailed analysis behind the
proposal and so it should not be included in this amending proposal;

Amendment 43: proposes references to Directive 2000/60/EC (Water Framework Directive) and
Directive 91/689/EEC on hazardous waste. The Council does not believe that such references are
necessary in this context. The Directive already provides for the case of unclassified substances
and preparations, and hazardous waste can therefore be covered on the basis of its properties as
a preparation;

Amendment 44: proposes to insert in Annex II, Part IV, an obligation to perform substance-
related ‘hazard studies’. This requirement is already covered by Annex II, section III.C.2;

Amendment 46: this is not accepted by the Council, most Member States are working on some
form of risk maps but do not see any need to set out the criteria for such maps in the Directive.

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3. Most important innovations introduced by the Council

The most significant alteration to the Commission's proposal is the inclusion of a reaction to the
Toulouse accident, also requested by the European Parliament. The solution as it now appears in the
common position (recitals 5 and 6 and amendments to Annex I, Part 1) was debated at length and
the Commission consulted safety experts and industry. It is the same text as that proposed in
European Parliament amendments 1, 2, 39 and, in principle, 53.

IV. CONCLUSION

This proposal was never intended as a full-scale revision of the Seveso II Directive, but rather as a quick
response to two, now amended to include a third, very specific accidents and some studies the
Commission had undertaken on certain carcinogens and substances dangerous for the environment.
The Council was therefore very keen to try to work towards a first reading agreement with the
European Parliament, with a view to having this legislation implemented as soon as possible to
prevent future accidents or damage of this nature.

Against this background and given the large number of amendments tabled at first reading to the
Articles of Directive 96/82/EC which were not covered by the proposal, the Council has not been able
to accept all of the European Parliament amendments. The Council suggests that it would be advan-
tageous to await the Commission's extensive review of the operation of the Directive which would give
rise to a full revision of the terms of Directive before making further amendments to Directive
96/82/EC. The Council does not see merit in using this proposal as a vehicle to review the whole
Directive without the proper studies having been undertaken and therefore hopes for close and
constructive cooperation with the European Parliament, with a view to reaching a quick second
reading agreement.