Seveso III Directive: Public Involvement
This is required by European Directive 2012/18/EU. It enshrines among other things citizens’ rights and litigation rights which could give rise to problems in connection with construction projects. Legislators have to transpose these statutory provisions into national law. However, the deadline expired as long ago as 31 Mai 2015. In April the federal German cabinet initiated the parliamentary procedure. A proposal as to which German national laws are appropriate for implementing the Directive is still in preparation. The chemical industry and individual companies should be prepared for what is coming.
Background: Directive 2012/18/EU – also known as Seveso III – has the aim of preventing major-accident hazards involving dangerous substances and of limiting their consequences for human health and the environment. It is the third amendment after Seveso I and II, the name of which derives from the disastrous dioxin accident of 1976 in the Italian town of Seveso. After its adoption by the European parliament and the Council, Seveso III came into force on 1 June 2015 and is thus binding for all EU member states.
Meanwhile, the situation in this country seems to resemble a state of suspended animation with which different stakeholders interact in different ways. For example, Herne, a town in North Rhine-Westphalia, has already commissioned an expert opinion for seven potential major hazard plants. The town wished to acquire a sound basis for assessment of the facilities for which Seveso III is of relevance. Among other points, the topics addressed concern the assessment of distances from power plants, chemical plants, and waste processing plants. However, the expert opinion will not replace a case-by-case consideration when distance regulations come into play, according to representatives of Herne. For industry and individual companies, the provisions of Seveso III will nevertheless play an important role in this and other cases. The public participation now to be introduced presents new challenges but also pitfalls.
Civil Rights Crucial
Maik Bäumer, introduced as an expert in compliance with § 29b of the Federal Immission Control Act and Managing Director of Inherent Solutions Consult (ISC) Hanover, fears that attention is often directed solely to points such as the modified classification of hazardous substances and distances in connection with Seveso III. He sees the new right of citizens to information and participation as well as the possibility of initiating legal proceedings as more significant features of the amendment. “Plant operators should concern themselves with this new aspect as soon as possible”, is his advice. Bäumer cooperates with ISC’s fellow company Energy Transmission Consult (ETC) in Hanover. Whereas ISC is concerned with the chemical industry, ETC supervises large-scale projects in the energy sector and specialises in public participation, among other areas in transmission line construction. Early inclusion of citizens, initiatives, and stakeholders has already become a key component in this area in order to gain local acceptance, Bäumer explains. The successfully employed models can be readily applied to major hazard plants for which Seveso III is relevant. According to the European Commission, the new Directive affects more than 10,000 industrial installations in the Union which use hazardous substances or store them in large quantities. These may belong to chemical companies or companies in the petrochemicals, logistics, or metals processing sectors.
The German legislature has to include the provisions of Seveso III in the applicable legislation. Articles 15 and 23 prescribe public participation and access to justice. They could be included, for example, in the Federal Immission Control Act, in the Environmental Impact Assessment Act, and in the Environmental Appeals Act.
Public Participation According to Seveso III
Article 15 of the EU Directive concerns “public consultation and public participation”. This includes early provision of information to citizens whenever it is intended to locate potential major hazard plants in their area or to expand existing ones. According to Seveso III, this is a prerequisite for people being able to express a view on a given project. The course of the decision-making process should be accessible to all through public announcements or electronic media. Citizens will then have the right to adopt a position towards the authorities regarding projects and are thus involved in the decision-making process. They might have various reservations: noise, vibration, light pollution, traffic, emissions, appearance of the landscape, and many more besides. Support for public participation comes in particular from Article 23, the extended right of action, because this Article gives concerned citizens better access to the law courts. They thus have a legal right to information and review vis-à-vis public authorities.
Transparency is an important basis for successful public participation and communication. But it also has its limits. After the Paris terror attacks of 13 November 2015, the French government has given way to a demand of the chemical industry association, i.e. the Union des Industries Chimiques (UIC). Companies in that country now no longer need to publish how many explosive or other hazardous substances they store at what site. “The topic offers a wealth of material for discussion”, says Bäumer.
Tactful Approach Minimises Risks
People indisputably have a justified interest in knowing more about potential major hazard plants in their neighbourhood. Seveso III empowers them in this respect. Whoever fails to take these rights seriously risks conflicts. If citizens’ objections surface at a later stage then a project can become more expensive or even be called into question. “It is always better to bring the public on board right at the beginning and to include citizens’ justified objections rather than ultimately to meet in court”, Bäumer maintains. A court decision could turn out to be unsatisfactory for all parties.
Together with his partners he attaches great importance to modern methods of public participation and strategic communication. These include well placed discussions with public authorities, residents, and representatives of the media, presentations to council bodies, local information events, FAQs, fact sheets, brochures, and the like. Here the main focus is on dialogue. “We find that an early local consensus prevents problems from occurring at a later stage.” However, communication does not always mean communication, Bäumer underscores. “Sound knowledge, a highly tactful approach, and a wealth of experience are all important.” Instead of letting public authorities or interest groups take the lead, he advises plant operators to play an active part in shaping the process.