Bettina Enderle, partner at Enderle Environmental Law, outlines the practical consequences of the new EU Seveso rules for operators in Germany
Operators of so-called ‘Seveso establishments’ are flabbergasted with new duties under the German implementation of the EU Seveso III rules on the control and prevention of major-accident hazards involving dangerous substances.
These obligations do not only apply in case of changes to existing installations, but also to their continued and unmodified operation. As the German authorities have started to enforce Seveso compliance, operators should check their obligations and be prepared.
WHAT ARE THE SEVESO RULES?
The EU Seveso legislation addresses major-accident hazards involving dangerous substances, following the disastrous chemical accident in a factory in the Italian town of Seveso in 1976, where a densely populated area of 6 square kilometres was contaminated with dioxine. Also, natural sources of hazards like earthquakes or floods can trigger dangerous environmental impacts in industrial plants. Since the use of large amounts of dangerous chemicals is unavoidable in some industry sectors, the acceptance of such operations requires effective protection of humans and
the environment against potential hazards.
The Seveso rules, therefore, apply to installations in which certain dangerous substances exceeding set thresholds are used or stored. They require that the risks associated with such hazardous substances are minimised, preventive measures are taken and appropriate preparedness and response are in place should major accidents nevertheless happen. The EU Seveso-Directive I* was later amended in light of the lessons learned from later accidents such as Bhopal, Toulouse and Enschede.
WHY ARE THE SEVESO RULES IMPORTANT FOR OPERATORS IN THE EU OR GERMANY?
The EU counts more than 12,000 industrial establishments where dangerous substances are used or stored in large quantities, mainly in the chemical and petrochemical industry, as well as in fuel wholesale and storage (including LPG and LNG) sectors. Germany being very densely populated has, at the same time, the highest number of Seveso establishments in the EU (3,264 in 2015) followed by France, Italy and the UK.
WHY WAS THE SEVESO III DIRECTIVE** ADOPTED?
The EU Seveso I and II Directives marked a quantum leap in increasing the level of protection against hazardous accidents and their consequences throughout Europe. Yet, a review of the effects of the legislation revealed that the overall rate of major accidents had remained stable.
In response to this the EU legislator introduced further obligations for operators of Seveso establishments in order to strengthen the level of protection and prevention of major accidents. Among the most important provisions are notification, information and permit requirements and, as in all current EU environmental regulations, comprehensive provisions on public consultation and participation in decision-making.
WHAT IS IMPORTANT ABOUT THE GERMAN IMPLEMENTATION?
The German implementation happened late, almost two years after the implementation deadline set by the EU Seveso III Directive and under the EU Commission’s threat to initiate infringement procedures against Germany. It introduced – quite unnoticed by the operators – new permit, notification and information requirements spread in the German Emissions Control Act (Bundesimmissionsschutzgesetz, BImSchG) and the Seveso Ordinance (Störfallverordnung, 12. BImSchV).
First of all, the categories and list of named dangerous substances in the annex were reclassified according to the new EU nomenclature for chemical substances and mixtures (CLP-Regulation***). Further, new definitions were introduced such as the appropriate safety distance or the neighbouring establishments as well as new procedures for notification or permitting of relevant changes. Also, provisions on information of the public and authority supervision of Seveso establishments were included.
WHERE DO THE NOTIFICATION AND PERMIT REQUIREMENTS APPLY?
Most importantly, for new Seveso establishments, which may not even need a permit under the German emissions control regulations, a specific Seveso-permit or -notification may now be required. They apply in case of the erection and operation of a new establishment or in case of modifications to an existing establishment which could have significant consequences for major-accident hazards. Also, new developments around establishments, where the siting may increase the risk or consequences of a major accident, can trigger such duty. In all cases the authority must verify whether the changes lead to a first undercut of the appropriate safety distance. If this is the case, a permit procedure with public consultation and participation is required.
COULD YOU EXPLAIN THE CONCEPTS OF APPROPRIATE SAFETY DISTANCE AND NEIGHBOURING ESTABLISHMENTS?
The safety distance is determined in view of the following parameters: Substances involved, accident-scenarios, typical spread or diffusion of the substances in an accident and potentially affected neighbouring establishments.
Relevant neighbouring establishments are on one hand sensitive uses such as residential areas, schools, hospitals or refugee homes and on the other hand prone to increase the risk or the consequences of a major accident. By now only some administrative guidelines on the determination of safety distances exist, but still no binding regulation.
Operators will, in their own interest to save time and expenditure, commission an expert to determine the safety distance which is then submitted to the authority. Obviously, the appropriate safety distance is a flexible concept that has to be adjusted to every individual case. By taking additional preventive measures the operator may shorten the spread and, thus, the required safety distance to sensitive neighbouring uses.
WHAT APPLIES TO EXISTING ESTABLISHMENTS?
Operators of establishments generally covered by the Seveso rules, but not affected by the legal changes had to submit a notification with detailed information by 14 July 2017 to the authority. The new Seveso regulations pose a substantial additional burden on the affected industry, new permit and notification procedures require diligent preparation and involve costs and time. At least the authorities appear to be conscious of the interests involved on both side when applying the new requirements.
*Directive 82/501/EEC of 24 June 1982 on the major-accident hazards of certain industrial activities, http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:31982L0501&from=EN.
**Directive 2012/18/EU of 4 July 2012 on the control of major-accident hazards involving dangerous substances, http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32012L0018&from=EN.
***Regulation 1272/2008/EU of 16 December 2008 on the Classification, Labelling and Packaging of substances and mixtures, http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32008R1272&from=EN.
Enderle will be talking more about the consequences of the Seveso III Directive on German operators in the afternoon of the first day of the Tank Storage Germany conference on November 29. For more information visit www.tankstoragegermany.com.