The European system for the classification, packaging and labelling of (CPL) dangerous substances is being replaced by the globally harmonised system (GHS). This will have implications for any legislation which draws on the dangerous substances directive, including the COMAH or Seveso directive, which will have to be revised and updated.
New draft directive
A new draft directive on the control of major accident hazards (COMAH) – referred to as the ‘Seveso III’ directive – has been drawn up by the European Commission. There are various other changes being introduced as well as those required to facilitate the changeover to the GHS. However, the degree of change brought about by this new legislation is much less significant than that brought about by the transition from the original Seveso directive to the ‘Seveso II’ legislation, which has been in place since 2000.
Implications of GHS
The main implication of the new system is that Annex I of the Seveso directive, which sets out the criteria for determining if a site qualifies as an establishment under the directive, had to be revised to reflect the new classification system. There was a potential difficulty associated with this, due to the fact that the two systems for classifying materials (the existing CPL and the new GHS) do not align exactly with respect to toxic materials.
Potentially, this could have had significant implications for some operators who are close to the thresholds for qualification as either lower or upper tier establishments. However, based on our review of the draft directive, it appears that there have been great efforts made to minimise the impacts associated with this transition. The result is that there should be relatively few sites whose status will change when the new directive comes into force. However, it will require a more complicated assessment when analysing materials inventories, e.g. for the preparation of notifications or safety reports.
Scope for derogations
The new directive will also include scope for derogations or additional safeguards to be put in place when considering what materials should be included when assessing the risks associated with an establishment. This is presumably, at least in part, to deal with the potential complications associated with the transition to the GHS referred to above. It remains to be seen how this will work in practice; it may be used to further minimise the changes brought about by the new directive, or it could potentially be used to increase or reduce the number of materials that must be considered when carrying out a risk assessment, preparing a notification, etc.
Information to the public
The new directive contains enhanced requirements for information to be made available to the public and also provisions concerning the confidentiality of information submitted to the authorities. Again, it remains to be seen how this will work in practice. The aim is to improve the level of information available to the public, and we understand that there may be plans to develop databases at Member State level or even a fully integrated central EU database of information. There is scope for operators to put confidentiality safeguards in place when submitting information to the authorities, based on intellectual property rights and security concerns, but it is not clear at this stage where the balance between transparency and confidentiality will be struck.
Regulatory inspections
The new directive also seeks to introduce stricter standards for inspections of installations to ensure the effective implementation of safety management systems by the operator and enforcement of the directive at the site. Whether it is in response to the proposed new legislation or not, we understand that this will be one of the key areas focused on by the irish Health & Safety Authority (HSA) when conducting their programme of site inspections in the future.
Land use planning
The new directive also deals with land use planning matters in the vicinity of Seveso establishments. The system used in Ireland already adopts a risk-based approach and it was recently reviewed and updated by the HSA. As such we do not currently anticipate any significant implications arising in this area. However, if any changes to the system arise as a result of the proposed new legislation, we will let our clients know.