The Seveso III Directive and European Case Law
The EU Seveso III Directive came into force on 13.08.2012. Member states have until 31.05.2015 to transpose its provisions into national law. The Seveso II Directive 96/82/EC will then cease to apply. With regard to the system of accident prevention, the Seveso III Directive represents a cautious further development of the Seveso II Directive: The system for identifying potential hazards, for the prevention of hazardous incidents, and for limiting the effects of actual major accidents has proved to be effective, and the probability and the consequences of such accidents have been significantly reduced. Details such as the cross-border evaluation of consequences have now been improved. At the same time, the GHS (Globally Harmonized System) for the classification of hazardous chemicals and mixtures, which was introduced in the EU with the CLP Directive (EC) No. 1272/2008, is being implemented with the directive. This is the principal reason for the EU to draw up a new major-accident directive.
New Applicability Assessment
Owing to the fundamental overhaul of the classification of chemicals in new hazard classes and categories on a Pan-European level according to the GHS, the scope of application of the EU major-accident directive has been fundamentally modified in the Seveso III Directive. After transposition into national law – i.e. by 1.6.2015 at the latest – all companies will be required to conduct an entirely new applicability assessment to ascertain whether or not an establishment still remains within the scope of the rules for the prevention of major accidents, or is perhaps affected to a different extent. The national legislature will of course endeavour not to reduce the number of hazardous-incident-prone establishments in order to maintain the extent of protection at the high level already achieved. Nevertheless, reclassification of hazardous substances and mixtures according to the GHS may mean that an establishment is no longer bound by major-accident legislation or now comes within the scope thereof for the first time. Shifts between the basic obligations and the extended obligations are also conceivable.
However, until 01.06.2015 major-accident prevention legislation will apply in the currently valid version. In this context, the European Court of Justice (ECJ) recently issued a clarification which almost amounts to a revision because it has created entirely new obligations for establishments and approval authorities which were unknown as such prior to the decision and had therefore not previously been implemented.
The Problem of Appropriate Distances
Article 12 of the Seveso II Directive 96/82/EC requires the Member States of the EU to ensure that their land-use policies take account of the need to prevent major accidents and to limit their consequences. Thus prevention of major accidents is not just of concern to hazardous-incident-prone establishments but is also the responsibility of the public sector. To attain this goal an „appropriate distance“ should be maintained between hazardous-incident-prone establishments on the one hand and residential areas, buildings and areas of public use, major transport routes (in so far as possible), recreational areas, and other sensitive areas, on the other hand.
This obligation was transposed into German law in Section 50 of the Federal Immission Control Act (BImSchG). Accordingly, pertinent areas of land are to be zoned in such a manner that harmful environmental effects and the effects of major accidents in establishments are avoided wherever possible on areas that are exclusively or predominantly used for residential purposes as well as on any other areas worthy of protection, in particular publicly used areas, important transport infra-structure, areas used for recreation, etc. Prior to the decision of the ECJ of 15.9.2011 in the case C-53/10 (Mücksch), the provision was understood as a weighing-up directive solely for land-use planning. Incompatible land uses should be separated and transition areas created between industrial areas and publicly used areas, especially residential areas. If a local authority zones land adjacent to an industrial park as a residential area it will be contravening the separation requirement of Section 50 of the Federal Immission Control Act. In such cases it is up to industrial park operators and industrial park tenants to oppose such planning intentions at an early stage. If the land-use plan is nevertheless approved, then a timely legal challenge should be mounted; in Germany this must be done within one year of the land-use plan coming into force. If this deadline is missed, the land-use plan can no longer be overturned and the new residential area in the vicinity leads to new pollution considerations with the inevitable outcome that more rigorous demands will (have to) be placed on the environmental performance of the installations in the industrial park. Neither the Seveso II Directive nor German national law gives a precise definition of an „appropriate distance“.
Extension of the Applicability of
Appropriate Distances by the ECJ
In its decision of 15.9.2011 the ECJ significantly extended the applicability of the appropriate distances according to Article 12 of the Seveso II Directive. It rules that the observation of appropriate distances concerns not only land-use planning but is to be examined and observed in every approval procedure in so far as it has not already been taken into consideration in connection with the underlying planning decision – for example, on adoption of the pertinent land-use plan.
The decision of the ECJ concerned the wish of Mr Mücksch to establish a garden centre at a distance of some 250 metres from the site of a chemical company where, for example, chlorine is stored in large quantities. A building permit for the garden centre was initially issued. The chemical company challenged the building permit and drew attention to hazardous-incident-prone installations and considerable quantities of chlorine present at a distance of just 70 metres from the planned garden centre. The highest German administrative court (i.e. the Federal Administrative Court) submitted the question to the ECJ whether Article 12 Paragraph 1 of the Seveso II Directive is applicable only to planning procedures or also to building permit procedures.
The ECJ deliberated the question and stated that Article 12 Paragraph 1 of the Seveso II Directive is applicable not only to the policies of land use, but also to „the procedures for implementing those policies“. The ECJ thus concludes that the authorities involved in implementation of the plans and policies, in this case the building permit authority, are also bound by the same obligation. The lack of a development plan, in which the question of appropriate distances could have been clarified in greater detail, in the present case does not exempt anybody from the obligation to ensure that appropriate distances are maintained between hazardous-incident-prone establishments and land uses worthy of protection – here a garden centre which in the future will be heavily frequented by the public. The Member States may not plead that their internal legal system has not hitherto expressly provided for such an eventuality; instead they must comply with the requirements that flow from the directive‘s provisions, because directives are binding as to the result to be achieved and merely leave the choice of form and methods to achieve these objectives to the Member States (Article 288 Paragraph 3 TFEU).
The Member States are therefore obliged to take account of the requirement that proper separation distances are maintained, regardless of whether a construction project lies in an unplanned inner area, in an outer area, or within a development plan prepared without paying attention to this obligation. European law makes no further specifications. Nor does consideration of appropriate distances mean that all projects which do not maintain certain distances have to be declared inadmissible. Instead, while giving due consideration to the need for separation, the Member States can also take account of other factors and approve projects which lie comparatively close to hazardous-incident-prone establishments on a case-by-case basis. Nor is there any strict prohibition of deterioration. According to the directive, the „appropriate distances“ are to be maintained „in the long term“, i.e. not to be understood in the sense of strict approval requirements. However, the approving authority is required to give thought to the distances during the approval procedure and to reach a reasonable result after consideration of all individual factors. The ECJ expressly permits consideration of „socioeconomic factors“ without specifically saying how the term is to be under-stood. All that can be meant is a set of circumstances favouring smaller distances, such as the economic significance of the investment also with regard to the creation and preservation of jobs.
These criteria are to be considered in all relevant approval procedures as long as no more specific distance rulings exist. Here national law is to be interpreted in conformity with European directives.
After the judgement of the ECJ it is now questionable whether the garden centre will actually be built. The Federal Administrative Court will soon have to rule on this matter.
Consequences for Existing Industrial Parks
The ECJ requires the entire approval legislation to be interpreted in conformity with European directives. Its remarks therefore apply to building projects in inner, outer, or planned areas, in so far as major-accident law plays a role because a hazardous-incident-prone facility is located in the vicinity. Above all, older land-use plans drawn up before this became a major issue regularly fail to stipulate separation distances; this must now be rectified by reinterpretation of the land-use plans in conformity with European directives.
The ECJ criteria also apply to approval procedures for IPPC installations (IED installations), be-cause the question of the construction planning legitimacy of the project also has to be decided according to the same rules of construction planning law as in the case of simple building projects. This applies to projects both inside and outside of an industrial park. Here too, the question of appropriate distances between hazardous-incident-prone establishments and adjacent areas in need of protection has to be answered.
Primacy of Major-accident Law
However, a certain restriction applies: In so far as the planned project is a hazardous-incident-prone establishment, the demands which have to be met to prevent major accidents and to limit the effects of major accidents which nevertheless occur in spite of all preventative measures are determined in Germany solely by the rules of the Hazardous Incident Ordinance. Additional consideration of ECJ separation distance case law is then no longer necessary. In most cases, however, there are no strictly applicable separation distance regulations. As emphasised by the ECJ, both distances and socioeconomic factors must be taken into consideration. After weighing up all criteria, a decision on approval or non-approval of a project must be reached on a case-by-case basis. However, this is not a weighing-up procedure as practiced hitherto, which would permit only limited checks for errors of assessment. After all, an applicant has a legal right to be granted a construction or immission control permit provided that the necessary conditions are met. Economic and job-creation reasons can speak for industrial projects in industrial parks and, on assessment of all criteria of a specific case and well as the quantity of the hazardous substances and the dangers they pose, justify the acceptance of smaller distances. However, it is necessary that the approval authority reach a comprehensibly founded decision taking account of all relevant factors. If it transpires that smaller separation distances are accepted for certain (socioeconomic) reasons, then nobody can overturn such a permit by way of legal action. Thus, in its decision of 16.12.2011 (25 L 581/11), the Administrative Court of Düsseldorf rejected the claim that a children‘s day-care facility to be built at a distance of just 100 metres from a chemical works is inconsiderate and thus not eligible for approval.
Existing establishments enjoy protection of their existing rights, i.e. maintenance of separation distance cannot be demanded here. Local authorities which have hitherto paid no heed to Article 12 of the Seveso II Directive in the preparation of their land-use plans should re-examine their plans and modify them where appropriate. Conversely, industrial sites can now more effectively defend themselves against encroaching land uses requiring protection, and should indeed do so in the interests of securing the future of their location.
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