The Seveso II Directive, a fundamental overhaul of the original 1982 Seveso Directive, was adopted late last year. Member States have until February 1999 to bring it into force. The main changes it will require to UK practice were reported last year (ENDS Report 253, pp 35-37 ).
In Britain, formal consultation on draft regulations and guidance to implement the Directive is expected next February or March. However, the Health and Safety Executive (HSE) and Department of the Environment (DoE) have initiated informal consultations with "key stakeholders", beginning with a paper dealing with safety reports and major accident prevention policies.
Top tier sites, numbering several hundred in Britain, have been required to prepare safety reports and submit them to the HSE by the 1982 Directive and subsequent minor amendments. However, the new Directive will require them to be dealt with in a much more formal manner, with significant implications for both the HSE and industry. The HSE will not be the sole competent authority, but will carry out this task jointly with the environment agencies.
In summary, the Directive spells out more clearly the purposes of safety reports, requires the competent authority not only to assess them but also to communicate its conclusions to the operator within a reasonable period, and obliges the authority to prohibit the start-up or continued use of an installation if it is judged to have a serious deficiency. In addition, it provides for public access to safety reports, opening up both their content and the authority's decisions on them to unprecedented public scrutiny.
What little has been made public of the quality of safety reports prepared in the 1980s suggests that industry may find the experience discomfiting. In mid-1991, two years after the first set of 331 reports had been submitted, the HSE's initial scrutiny suggested that only 86 fully satisfied the Seveso Directive's requirements - and this when it did not assess them in anything like the depth that will be required under the new Directive.
According to the HSE, many reports contained serious deficiencies, including errors of fact, inadequate identification of the sources of hazardous events, conservative assessments of the performance of accident prevention measures, and inadequate quantification of the consequences of major accidents (ENDS Report 196, pp 31-32). The Government operated a policy of not disclosing the identity of companies which had submitted inadequate reports, but this shield is most unlikely to be available under the new Directive.
The main issues raised by the consultation paper are:
The paper puts forward three options for meeting this requirement. One, submission of reports prior to construction, would enable the HSE to express an early view on plant design and give the operator an assurance that fundamental changes would not be sought at a later stage. However, it would also deprive the HSE of information on operational issues and late changes to plant design, making it impossible to assess whether all the purposes of a report had been met.
Conversely, while a report submitted prior to start-up would be more complete, the authority would lack the opportunity to influence the design at an early stage, and any modifications it required could be costly for industry.
The paper appears to favour the third option of a two-stage report. The first part, submitted before construction began, would deal solely with plant design and hazard identification, while the second, submitted prior to operation, would cover safety systems and procedures. Operators could be given the choice of whether to follow this course or take the risks involved in submitting a single report before either construction or start-up. However, there are still some legal uncertainties about whether the Directive allows a two-stage approach.
The paper also puts forward several options for implementing the requirement that safety reports are submitted a "reasonable period" before construction or operation. These are a fixed period of between three and 12 months; a time band of perhaps 4-6 months, with the exact period requiring the HSE's prior approval; or retention of the phrase "reasonable period" within the regulations, with operators again being required to seek the HSE's assent to a specific period.
Reports will have to clear a number of hurdles. First, the authority will have to check whether they are complete against data requirements set out in two annexes to the Directive - and "if they are not," the paper says, "this must be grounds for immediate rejection."
The paper also notes that the predictive elements of safety reports submitted under the old regime "caused difficulty". Criteria are to be developed by the HSE and DoE to make it clearer to firms what information is needed to demonstrate that they have identified all major hazards and analysed the risks.
Secondly, reports will have to comply with the general purposes newly set out in the Directive. The most important are to demonstrate that an installation's major accident prevention policy has been implemented, that the "necessary measures" to prevent major accidents have been taken, and that adequate safety and reliability have been incorporated in a plant's design, construction, operation and maintenance.
Criteria could be set in this area too, the paper suggests. However, it points out, "there are problems with this if it meant the competent authority getting locked into a system in which it had to be satisfied that operators had exhaustively demonstrated that these purposes had been fulfilled. The danger is that the competent authority and the operator would be drawn into a cycle in which there were requests for ever more detailed information without ever demonstrating that all measures necessary have been taken."
To address this concern, the paper suggests that "it might be more appropriate for the assessment to be based on selecting elements of the report for more detailed examination." However, the danger is that this might not meet the strict requirements of the Directive.
For the moment, the paper promises that the HSE will consult later on structured methods of assessing safety management procedures and systems. Standards already published by the HSE for specific types of plant - such as storage of chlorine, ammonia and flammable gases and liquids - and by industry bodies may also be used as criteria for assessing safety reports.
Thirdly, the competent authority will have to be satisfied that an installation does not have any serious deficiencies to warrant a prohibition on start-up or continued operation - a highly sensitive issue for industry and one on which the paper acknowledges the need for transparent criteria.
The paper suggests that the only circumstances in which prohibition would be justified would be "where the probability of an incident is unacceptably high and the consequences are serious." Examples include where no containment had been provided against releases and the consequences of loss of containment may be serious, or where there was a "substantial" risk of an exothermic runaway reaction in a chemical plant with a single channel instrumentation system which provided both routine production control and safety-critical functions. Further consultation is promised in this area as the HSE develops its thinking.
It was this feature as much as any other which prompted the HSE to suggest last year that the Directive would require the introduction of a formal "permissioning" system for top tier sites, along the lines of regimes already in existence in the offshore, railways, nuclear and explosives industries.
The suggestion came as a bombshell for industry. However, the paper does not even mention a permissioning regime, and it is understood that the HSE and DoE concluded, after taking legal advice, that the Directive does not after all require such a fundamental innovation.
One option, it suggests instead, would be for the competent authority to "express acceptance of continued operation or start up or...issue a notice of no objection," while making it "very clear that responsibility for safety and environmental protection rests solely with the operator." Alternatively, the authority "could simply conclude that the assessment process had been completed and remain silent on the question of whether there was any evidence of serious deficiency (assuming of course that there was none)."
The paper adds that, for matters where improvement was needed but which did not constitute a serious deficiency, the competent authority "would need to let the operator know and engage in a dialogue as to the measures to be taken and the timescales for action. In these circumstances traditional enforcement powers would be used, as necessary, to secure improvements."
It is highly debatable whether any of the options put forward - acceptance, no objection, or notification of the completion of an assessment - are consistent with the Directive's requirement for communication of the authority's conclusions on a safety report. And what the HSE has in mind in "letting the operator know" is far from clear.
One reason why the paper's proposals on this issue are so thin compared to other sections may be that the HSE is sensitive about the implications of setting out formally the conclusions of its assessments. It will be in an exposed position if a major accident occurs at a plant for which it had tacitly given the all-clear, in particular because any formal communication of its conclusions would almost certainly be accessible to the public under freedom of information legislation.
The paper suggests that it might be appropriate to define criteria against which an operator could judge whether a modification was likely to have significant repercussions. These might be couched in general terms, and include the introduction of a new or modified process, a change resulting in different accident scenarios, a novel application of technology, or changes in safety-critical hardware. Significant changes in management systems might also qualify.
The Directive requires the competent authority to receive advance notice of any such modifications, and the paper points out that timing will be a critical issue. Requiring firms to report too far in advance would be difficult for those needing to respond rapidly to market demand, but reporting too close to a modification would cause problems for the authority. The paper invites views on timescales for notification.
Safety reports must also contain up-to-date inventories of the dangerous substances present on a site, and the paper suggests that criteria for notifying the authority of significant changes will be developed.
The Directive also provides for commercially confidential information to be withheld, and the paper suggests that claims for confidentiality could be handled in the same way as under integrated pollution control, with operators applying to the competent authority for the exclusion of information from disclosure and being given a right of appeal to the Secretary of State.
The paper gives no guidance on what information might qualify for non-disclosure, except to say that operators could be placed under a duty not to include "security-sensitive" information in the publicly disclosed safety report.
Otherwise, where information is withheld, the paper notes that one option would be simply to make public a report with confidential sections deleted - "an easy option for the operator". An alternative would be to edit and reformat the report, which "would be more time-consuming but..might lead to a more useful document for the public."
The result was that, almost three years after the deadline, only one-third of the 331 reports had been confirmed as adequate. And even by early 1994, more than one-third had not been fully assessed by the HSE.
The additional requirements of the new Directive will mean that a repetition could be costly for industry. New or modified plants could not be commissioned until the HSE had confirmed the adequacy of safety reports, and even for existing plants it is required to communicate the conclusions of its assessments to operators within a "reasonable period" - probably less than 12 months.
The paper says that legal mechanisms to ensure a smoother flow of submissions are "still being explored" - though the HSE has not given up on persuading operators voluntarily to submit their reports well ahead of the deadline.
The second main issue covered by the paper is the new duty on operators of "lower-tier" sites to have major accident prevention policies. Looking for ways to minimise the burden on industry, it suggests that this could be met by a "relatively concise" document cross-referenced to other documents - such as safety policies already required under the Health and Safety at Work Act 1974. However, the paper cautions that a simple "repackaging of existing policies and documentation might not be sufficient in terms of environmental issues," which have equal standing with safety under the Directive.
The paper also canvasses views on whether major accident prevention policies should simply be kept available for inspection, submitted to the HSE automatically, or submitted at the HSE's discretion. The latter two options are favoured because advance sight of the policies would help to inform inspection priorities - and because the Directive introduces a new duty on competent authorities to conduct inspections "sufficient for a planned and systematic examination of the systems being employed" to prevent major accidents.