Prevention of Major Industrial Accidents (the Seveso Directive)

In 1976 a major industrial accident in Seveso, Italy, resulted in the spread of toxic substances, including dioxin, over several km² and caused the death of thousands of animals and the evacuation of many hundred residents in the surrounding area. When the then EEC in 1982 adopted a directive concerned with the prevention of major accidents which might result from certain industrial activities, such as those in the ill-fated chemical plant in Seveso, it became known as the Seveso Directive.^{[1] [2] [3]} A number of other accidents, often more severe than that in Seveso—including those in Bhopal in 1984 and in Schweizerhalle in 1986—prompted amendments of the Directive. It was eventually replaced by the so-called Seveso II Directive in 1996.3⁸ Subsequent accidents, such as the one in Enschede in 2000, prompted further revisions. In 2008 a wider review of the Directive was launched, the main purpose of which was to align Seveso II to new EU rules on classification, labelling, and packaging of dangerous substances. It concluded that overall the existing provisions were fit for purpose but that a number of smaller amendments would be appropriate in order to clarify and update certain provisions and to improve implementation and enforceability.3⁹ This led, in 2012, to the adoption of Seveso III, that is, Directive 2012/18/EU.^[4]

The Directive, which has Article 192(1) TFEU as its legal basis, lays down rules for the prevention of major accidents involving dangerous substances and the limitation of their consequences for human health and the environment, with a view to ensuring a high level of protection throughout the Union in a consistent and effective manner (Art 1). In doing so it also implements the UNECE Convention on Transboundary Effects of Industrial Accidents within EU law.⁴¹

The Directive applies to ‘establishments’, meaning the whole location under the control of an operator where dangerous substances are present in one or more installations, including common or related infrastructures or activities. The ‘operator’ is any natural or legal person who operates or controls an establishment or installation or, where provided for by national legislation, to whom the decisive economic or decision-making power over the technical functioning of the establishment or installation has been delegated. (Arts 2 and 3.)

All covered establishments are classified as either lower-tier establishments or upper-tier establishments according to Annex I and depending on the quantities of hazardous substances present at the establishment. Some activities and establishments are exempted from the scope of the Directive, including military establishments, hazards created by ionising radiation originating from substances, and the transport of dangerous substances and directly related intermediate temporary storage. (Arts 3-4.)

A substance covered by Annex I may be removed from the scope of the Directive if an assessment by the Commission shows that it is impossible in practice for it to cause a release of matter or energy that could create a major accident under both normal and abnormal conditions which can reasonably be foreseen (Art 4).

Operators shall be required to take, and to prove to a competent authority at any time that they have taken, all necessary measures to prevent major accidents and to limit their consequences for human health and the environment. They must also send a notification to the competent authority containing information on, inter alia, the quantity and physical form of the dangerous substance or substances concerned, the immediate environment of the establishment, and factors likely to cause a major accident or to aggravate the consequences thereof. Operators must furthermore draw up a document that sets out a major accident prevention policy (MAPP) and ensure that the policy is properly implemented. The MAPP shall be proportionate to the major accident hazards and be designed to ensure a high level of protection of human health and the environment. (Arts 7 and 8.)

Operators of upper-tier establishments shall produce a safety report containing at least the data and information listed in Annex II. The safety report shall demonstrate, inter alia, that major accident hazards and possible major accident scenarios have been identified and that the necessary measures have been taken to prevent such accidents and to limit their consequences for human health and the environment. (Art 10.)

In order to reduce the risk of so-called domino effects, the competent authority shall identify all establishments covered where the risk or consequences of a major accident may be increased because of the geographical position and the proximity of such establishments, and their inventories of dangerous substances. The identified establishments must exchange suitable information to enable them to take

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• (Helsinki, 17 March 1992) 2105 UNTS 457.

account of the nature and extent of the overall hazard of a major accident in their MAPPs, safety management systems, safety reports, and internal emergency plans, as appropriate. (Art 9.)

Additional obligations apply to operators of upper-tier establishments, including to draw up an internal emergency plan for the measures to be taken inside the establishment and to provide the competent authority with the necessary information to enable it to draw up external emergency plans. The public concerned is to be given early opportunity to give its opinion on external emergency plans when they are being established or substantially modified. (Art 12.)

The competent authorities shall organise a system of inspections that are appropriate to the type of establishment concerned. All establishments are to be covered by an inspection plan which must be regularly reviewed and, where appropriate, updated. The competent authority shall communicate the conclusions of the inspection and all the necessary actions identified to the operator and ensure that the operator takes the necessary actions within a reasonable period of time. (Art 20)

The use or bringing into use of any establishment, installation, or storage facility where the measures taken by the operator for the prevention and mitigation of major accidents are seriously deficient shall be prohibited. Such prohibitions may also be imposed on operators who have not submitted the information required by the Directive within the specified period. (Art 19.)

The objectives of preventing major accidents and limiting the consequences of such accidents for human health and the environment are to be taken into account by the Member States in land-use policies or other relevant policies. This entails imposing controls on, inter alia, the siting of new establishments and new developments including transport routes, locations of public use, and residential areas in the vicinity of establishments, where the siting or developments may be the source of or increase the risk or consequences of a major accident. Land-use or other relevant policies must take account, inter alia, of the need, in the long term, to maintain appropriate safety distances between establishments covered and residential areas and buildings and areas of public use, and to protect areas of particular natural sensitivity or interest in the vicinity of establishments. (Art 13.)

The obligation to maintain appropriate distances does not amount to a prohibition on the siting of new buildings in built-up areas in which there are establishments covered by the Directive.^

Following a major accident, the operator shall be required to inform the competent authority as soon as practicable and to provide it with information on, inter alia, the circumstances of the accident and the dangerous substances involved. Following such an accident the competent authority shall ensure that any urgent, medium-term, and long-term measures which may prove necessary are taken and take appropriate action to ensure that the operator takes any necessary remedial measures. (Arts 16-17.) ^[5]

The Directive includes provisions on information that must be made available to the public, including an explanation in simple terms of the activity or activities undertaken at the establishment and general information about how the public concerned will be warned, if necessary, as well as adequate information about the appropriate behaviour in the event of a major accident. With respect to upper-tier establishments additional information must be provided, including on the nature of the major accident hazards and their potential effects on human health and the environment.

There are also rather extensive provisions on public consultation and participation in decision-making according to which the public concerned is to be given an early opportunity to give its opinion on specific individual projects relating to planning for new establishments or significant modifications to establishments, when they are dealt with in the context of land-use policies or other relevant poli cies. A similar requirement applies when plans or programmes are being established relating to the same matters. (Arts 14-15.)

The Directive furthermore contains provisions on exchange of information between Member States and the Commission, on access to information and confidentiality, and on access to justice (Arts 21-23).

• [1] Its formal name was Council Directive 82/501/EEC on the major-accident hazards of certainindustrial activities [1982] OJ L230/1.
• [2] Council Directive 96/82/EC on the control of major-accident hazards involving dangerous substances [1997] OJ L10/13.
• [3] Proposal for a Directive of the European Parliament and of the Council on control of major-accident hazards involving dangerous substances COM(2010) 781 final, 2.
• [4] Directive 2012/18/EU of the European Parliament and of the Council on the control of major-accident hazards involving dangerous substances, amending and subsequently repealing CouncilDirective 96/82/EC [2012] OJ L 197/1.
• [5] Case C-53/10 Мй-cksch ECLI:EU:C:2011:585, para 46.