A serious explosion at an herbicide and pesticide plant in northern Italy in 1976 spurred the European legislature to adopt, on 24 June 1982, Directive 82/501/EEC on the major-accident hazards of certain industrial activities, also known as the Seveso Directive after the city most affected by the accident, notably in terms of exposure to dioxins.
The Seveso Directive aimed to harmonise the Member States' legislation on serious chemical accidents. Its primary objectives were to prevent major accidents involving dangerous substances and limit the possible consequences of such accidents for human health and the environment.
Subsequent incidents led to amendments to the Seveso Directive, and Seveso II (Directive 96/82/EC) was eventually adopted on 9 December 1996. Whilst Seveso I targeted specific activities and included a list of dangerous substances, Seveso II introduced a classification system for dangerous substances (toxic, flammable/explosive, and dangerous for the environment) and specified threshold quantities for certain types, categories and group of categories of such substances. Based on whether the upper or lower threshold is exceeded, Seveso establishments are classified as lower tier or upper tier, with corresponding obligations.
The main reason for the adoption of Seveso III (Directive 2012/18/EU) on 4 July 2012 was Regulation (EC) No 1272/2008 on classification, labelling and packaging of substances and mixtures (the "CLP Regulation") of 16 December 2008. The CLP Regulation replaced the often amended Dangerous Substances Directive (67/548/EEC) of 27 June 1967. Seveso III aims to align national Seveso legislation with the new classification scheme for chemical substances provided for by the CLP Regulation. Seveso III must be implemented by the Member States by 31 May 2015, in order to coincide with the entry into force of the last CLP phase on 1 June 2015.
Changes introduced by Seveso III
The alignment of Seveso with the CLP Regulation will result in certain Seveso establishments moving from the lower to the upper tier and vice versa. Likewise, certain establishments which do not currently fall under the scope of Seveso may have to comply with its obligations in the near future. Although one of the underlying objectives of Seveso III is to increase the level of protection, the change in classification could result in certain establishments no longer falling under its scope.
Pursuant to Seveso III, lower-tier establishments will in principle be obliged to implement a major-accidents prevention policy (MAPP) as part of a safety management system. The safety management system must be proportionate to the major-accident hazards and complexity of the organisation or the activities of the establishment. The obligation to establish a safety management system previously only applied to upper-tier establishments. Lower-tier establishments can, however, be exempted if they implement a MAPP by other appropriate means, structures and management systems, proportionate to major-accident hazards (taking into account the principles set out in Annex III of Seveso III).
Another goal of Seveso III is to strengthen the enforcement of its obligations. The Seveso III inspection system will be aligned with that provided for by the Industrial Emissions Directive (IED). Seveso III inspections will thus be stricter. For instance, where failures are detected by inspectors, a follow-up inspection within six months will be required. In order not to overburden companies, the European legislature obliges the Member States to coordinate and consolidate their inspections on the basis of various EU legislation, insofar as possible. In this regard, the Flemish Region is already making efforts to ensure that companies are not subject to an IED inspection one day and a Seveso inspection the day after, for instance. Rumour has it, however, that the Flemish Region is not willing to fully integrate Seveso and IED inspections, since it fails to see the added value of an integrated inspection.
A final major change introduced by Seveso III is enhanced public participation. Governments are obliged to actively inform the public on a permanent basis about both upper-tier and lower-tier Seveso establishments and guidelines in the event of an accident. In addition, public participation in the planning of new Seveso establishments, changes to existing establishments and developments in the proximity of such establishments is encouraged and increased.
Belgian implementation of Seveso: an arduous path
It should be noted that the implementation of the Seveso Directives presents a challenge to the Belgian legislature as the directives involve both federal (civil security, health and safety at work) and regional (environmental protection and urban planning) competences. The demarcation between these respective competences in light of the Seveso obligations is not always clear. Seveso I was implemented by amending federal legislation, namely ARAB (Algemeen Reglement op de Arbeidsbescherming), and regional environmental legislation. To implement Seveso II, the various legislatures adopted the Seveso Cooperation Agreement on 21 June 1999. However, the adoption of a cooperation agreement is a burdensome process, since it must be ratified by each competent parliament. It is therefore not surprising that Belgium was censured by the European Court of Justice for failing to meet the Seveso II transposition deadline.
In early March, the Council of Ministers agreed on a draft cooperation agreement implementing Seveso III. At the time of writing, however, the cooperation agreement had not yet been adopted. Hence, Belgium once again failed to meet the transposition deadline of 31 May 2015. More worrying than the possible censure of the European Court of Justice, is the legal vacuum that exists as from 1 June 2015. Due to the entry into force of the last CLP phase, the old classification scheme for dangerous substances ceased to exist on 1 June 2015. This means that it is now no longer possible to apply Seveso II, even though Seveso III is not yet in force.