FAQ: what is the Major Accidents (Risk) Decree 2015 and to which companies does it apply?

Introduction

The Major Accidents (Risk) Decree 2015 (Besluit risico’s zware ongevallen 2015) (Brzo) imposes far-reaching and immediate obligations on companies falling under its scope. It is therefore very important for a company working with dangerous substances to be able to determine whether the Brzo is applicable to its establishment. If this is the case, the company has to asses which rules under the Bzro apply.

Introduction Brzo

Following various chemical disasters, such as that in the Italian city of Seveso in 1976, the EU adopted a directive regarding the risks of major accidents when carrying out certain industrial activities (‘Seveso I‘). Seveso I was designed to prevent and control major accidents and imposed strict obligations on establishments storing dangerous substances above certain thresholds. In 1996 Seveso I was replaced by directive Seveso II, which was followed in 2012 by the current Seveso III Directive (2012/18/EU) on the control of major-accident hazards involving dangerous substances.

As European directives need to be transposed into national law, the Seveso III directive was implemented in the Netherlands in the Brzo. This decree contains both substantive provisions and provisions that are to be read in conjunction with the annexes to Seveso III. To conform with the Brzo, it is therefore crucial to also consult the Seveso III directive.

When does a company fall under the scope of the Brzo?

The Brzo applies to companies that work with certain amounts of hazardous substances. Seveso III  lists the substance categories and specific substances. There are two thresholds for every substance category and specific substance. An establishment is considered (i) a lower-tier establishment if the first threshold is reached or (ii) an upper-tier establishment if the second threshold is reached. Different obligations apply depending on the type of establishment as described, which will be explained in more detail below.

Seveso III uses a different classification of substances and mixtures compared to the previous directive. The classification used in Seveso III is in line with the EU regulation 1272/2008 on classification, labelling and packaging of substances and mixtures (‘CLP‘). As a consequence, certain companies that previously fell outside the scope of the Brzo or were deemed a lower-tier establishment under the old regulation, might now be considered a Brzo-company or an upper-tier establishment.

The quantity of hazardous substances should not only be based on the substances that are physically present at that time, but also on the maximum substances allowed by the permit and the hazardous substances that may be present during the regular business process or following an incident.

Example of a Brzo-company

If between 5 and 50 tons of hydrogen is stored in a company, or can be stored or formed under its permit, then that company will be classed as a lower-tier Brzo-establishment under section 1, subsection 1, under b Brzo read in conjunction with the second column of category 15 of part two of Annex I to the Seveso III Directive. If there is a possibility that the amount of hydrogen could exceed 50 tons, the company is considered to be an upper-tier establishment under the Brzo. Hydrogen is a named substance in Seveso III (see part 2 of Annex I). Categories of substances, such as ‘flammable substances’, and their threshold values can be found in the first part of Annex I in Seveso III.

What are the obligations for companies within the scope of the MARD?

Under section 5, subsection 1, Brzo, which is almost identical to section 5, subsection 1 of the Seveso III Directive, all companies within the scope of this regulation are obliged to identify the risks and to take all necessary measures to prevent major accidents and limit their consequences for human health and the environment (the so-called ‘duty of care’). The second subsection of section 5 of the Brzo stipulates that companies within its scope are required to prove to the competent authority at any time that they have taken all the measures referred to above.

Under section 6, subsection 1, Brzo the companies within its scope must notify the competent authority about the following information:

  • the information needed to identify the dangerous substances and category of substances involved or likely to be present;
  • a list containing the quantity and physical form of the dangerous substance or substances concerned; and
  • information regarding the immediate environment of the establishment, and factors likely to cause a major accident or to aggravate the consequences thereof.

All Brzo-companies are required to draw up a major-accident prevention policy (‘MAPP‘) under section 7, subsection 1 of the Brzo. This MAPP needs to include the company’s overall aims and principles of action, the role and responsibility of management, as well as the commitment towards continuously improving the control of major-accident hazards and ensuring a high level of protection.

In addition, upper-tier establishments are required  (section 10, subsection 1 Brzo) to prepare a safety report (‘SR‘) and ensure that this SR reflects current safety arrangements and is available within the establishment. For the list of data and information that this report must contain, the Brzo refers to Annex 2 of Seveso III. Furthermore, upper-tier establishments are required to have an internal emergency plan and an updated inventory of all the existing dangerous substances.

Further particulars when constructing, changing or operating a Brzo-company

When a company falls under the scope of the Brzo, it will inherently be required to have an integrated project permit granting permission to construct, change or operate an establishment. This is separately regulated by Annex I, part B of the Environmental Permitting Decree (‘Bor‘). For a general overview of when an integrated project permit granting an environmental permission is required, please read the FAQ ‘When do you need an environmental permit for an establishment?’. The Provincial Executive, rather than the Municipal Executive, is the competent authority when it concerns Brzo-companies (under section 3.3 Bor). The designated ‘Brzo-environment agency’ is responsible carrying out tasks such as preparing the decision granting a permit and monitoring enforcement. See the blogpost ‘Wijziging Besluit omgevingsrecht: wetgevingstraject VTH afgerond’ (only available in Dutch) for further information.

On top of the regular requirements imposed on an establishment when applying for a permit, the Environmental permitting regulation (‘Mor‘) includes additional requirements for lower- or higher-tier Brzo-establishments. These additional requirements are contained in section 4.13 Mor for the construction of an establishment and in section 4.18 Mor for the changing of an establishment.

Who is the supervisory authority?

The Brzo is enforced by different supervisory authorities, namely the competent environment agency, the Inspectorate SZW (social affairs and employment), the security region involved and the water authority. If a supervisory authority discovers a breach of the Brzo, it can take enforcement action against a company through, for example, administrative orders to comply, an order subject to a penalty for non-compliance or enforcing an administrative order, an administrative fine or a (temporary) shutdown of the company. The specific powers assigned vary per supervisory authority.

Summary of key points

Whether a company falls under the scope of the Brzo can be determined by reading the Brzo in conjunction with the Seveso III Directive. Because the new Seveso III Directive has been formulated in line with the CLP-regulation, it is possible that companies that did not previously qualify, now fall under the scope of the Brzo or are considered an upper-tier establishment. The Mor includes additional requirements when applying for a permit to construct, change or operate a Brzo-establishment. Also after a permit has been granted, companies that fall under the Brzo are still subject to a number of (additional) requirements. Multiple supervisory authorities with varying powers are in charge of monitoring the compliance of Brzo-companies with the Brzo.

This post is part of the “FAQ”-series. An overview of all posts in this series can be found here.

The post ‘FAQ: what is the Major Accidents (Risk) Decree 2015 and to which companies does it apply?‘ is a post of www.stibbeblog.nl


Anna Collignon
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Kharazm Rahimian
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