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PART III: MAJOR ACCIDENT PREVENTION AND INFORMATION
Intention
118. Article 6 of the MWD sets out measures aimed at minimising the risk of major accidents and guaranteeing a high level of protection for the environment and human health. Where such risk exists, operators must adopt and apply a major-accident prevention policy for waste. This should involve the delivery of a safety management system, emergency plans to be used in the event of accidents and the dissemination of safety information to persons likely to be affected by a major accident. In the event of an accident, operators should be required to provide the competent authorities with all the relevant information necessary to mitigate actual or potential environmental damage. These particular requirements do not apply to those waste facilities falling within the scope of Directive 96/82/ EC on the control of major-accident hazards involving dangerous substances.
Category A waste facilities
119. Article 6 only applies to waste facilities classified as Category A in Annex III of the MWD. These are where:
- a failure or incorrect operation, e.g. the collapse of a heap or the bursting of a dam, could give rise to a major accident, on the basis of a risk assessment taking into account factors such as the present or future size, the location and the environmental impact of the waste facility; or
- it contains waste classified as hazardous under Directive 91/689/ EEC (the Hazardous Waste Directive) above a certain threshold; or
- it contains substances or preparations classified as dangerous under Directives 67/548/ EEC (the Directive on Classification, Packaging and Labelling of Dangerous Substances) or 1999/45/ EC (the Dangerous Preparation Directive) above a certain threshold.
120. The inclusion of the first criterion means that all extractive waste from mineral sites, including inert and non-inert non-hazardous, has (at least) the potential to lead to the classification of a facility as Category A. However, in assessing risk, Recital (15) of the MWD confirms that "a waste facility should not be classified in Category A solely on the basis of risks to the safety and health protection of workers" which is covered by other Community Legislation.
121. Article 22 confirms that the definition of the criteria for the classification of Category A waste facilities is still subject to final agreement under the Comitology process. At present, it is not possible to say how many waste facilities will be classified under Category A in accordance with the final, adopted criteria. However, the overall number is expected to be small, if any.
Transposing Article 6
122. As confirmed above, Article 6 does not apply to Category A waste facilities falling within the scope of Directive 96/82/ EC. The relevant parts of that Directive are transposed in domestic law by the Control of Major Accident Hazards ( COMAH) Regulations 1999. These Regulations apply mainly to the chemical industry, but also to some storage activities, explosives and nuclear sites, and other industries where threshold quantities of dangerous substances identified in the Regulations are kept or used. For other Category A waste facilities, the intention is to transpose the requirements in Article 6 through new procedures similar to those in the COMAH Regulations. This part of the consultation paper identifies how this would work in practice.
123. The following provisions will apply to both new and existing sites involving a Category A waste facility. The transposition proposals set out in Part II of this consultation paper would mean that all existing sites requiring an Article 7 Permit - including those involving a Category A waste facility - would need to submit a planning application by 1 May 2010. These procedures allow a year to consider the application for a Permit and related requirements, including those in Article 6. This will ensure that, in all cases, considerations in relation to Article 6, including the need to provide competent authorities with the information necessary to prepare external emergency plans, is considered in tandem with the planning application process.
124. Article 5(3)(a) specifically refers to the need for operators to demonstrate that, if required, "a document demonstrating that a major-accident prevention policy, a safety management system for implementing it and an internal emergency plan will be put into effect" as part of the process for providing a waste management plan under Article 5. This, in effect means, that an Article 7 permit for a Category A waste facility can only be granted (and works can commence) when an operator has demonstrated compliance with Article 6 requirements.
125. As confirmed in Part II of this consultation paper, HSE and SEPA will be consulted on all new planning applications involving extractive waste and all existing applications that require an Article 7 permit. This should better facilitate early discussions and close co-operation on all aspects of Directive, including those relating to Category A waste facilities.
Main Requirements
126. There are a number of roles arising from the implementation of Article 6. The first set of duties fall on operators. Article 6(3) of the MWD requires them to take steps to prevent major accidents. Specifically, they must:
- prepare a Major Accident Prevention Policy ( MAPP) and put into effect a safety management system implementing it;
- put into effect an internal emergency plan specifying the measures to be taken on site in the event of an accident;
- appoint a safety manager responsible for the implementation and periodic supervision of the MAPP.
127. Article 6(6) also includes a requirement to provide information to the public on safety measures and action to be taken in the event of an emergency. Following the COMAH model, this duty will also fall on operators.
128. The MWD is silent on what role is appropriate for other bodies in relation to the duties placed on operators. Provisions will be needed to ensure that procedures put in place by operators are sufficient to meet the MWD's general obligations. Under COMAH, SEPA and HSE are identified as appropriate consultation bodies.
129. Finally, Article 6(3) requires "competent authorities" to draw up external emergency plans. Linked to this, are duties to provide the public with 'early and effective opportunities to participate in the preparation or review of the external emergency plan'. Under COMAH, these duties fall on local authorities.
Relationship with existing health and safety procedures
130. Article 6 includes provisions that are intended to address risks of major accidents in relation to both health and safety and the environment. Responsibility for health and safety legislation in Scotland is a matter for the UK Government. Many of Article 6's requirements in relation to human health are already secured by operators through compliance with the Quarries Regulations 1999. These include:
- organisation and personnel - operators of mines and quarries are required to document their management structures in a health and safety document. There are also requirements to ensure that staff are trained and competent;
- identification and evaluation of major accident hazards - before a tip or lagoon is constructed the operator must establish whether it presents a significant hazard, and if so, commission a specialist geotechnical assessment;
- operational control - mines and quarries are required to draw up 'tipping rules' which not only set out the design specification for the waste facility but also the management and monitoring arrangements to ensure the tip or lagoon is built in accordance with the tipping rules;
- managing change - there are requirements for the review of safety measures. These arrangements must be recorded in the health and safety document;
- planning for emergencies - there are duties on escape and rescue from mines and quarries, as well as on safety drills;
- monitoring, audit and review - there are requirements on inspection, as well as on the review of safety measures.
131. The Quarries Regulations 1999 do not, however, include procedures that meet the MWD's requirements for off-site emergency plans insofar as they should cover human health. The Scottish Government is considering with HSE how best to introduce such requirements in Scotland. In the meantime, the following requirements will relate solely to those Article 6 provisions which fall within the devolved competency of the Scottish Government i.e. the provisions required to implement the Directive's environmental objectives.
Duties on Operators
Major-accident prevention policy
132. The proposed Regulations will require operators to draw up a major-accident prevention policy and to put into effect a safety management system implementing the policy before operations can commence. Annex 1 of the MWD confirms that the operator's major-accident prevention policy and safety management system should be proportionate to the major-accident hazards presented by the waste facility. For the purpose of implementing them, account should be taken of the following elements:
(1) the major-accident prevention policy should include the operator's overall aims and principles of action with respect to the control of major-accident hazards;
(2) the safety management system should include the part of the general management system which includes the organisational structure, responsibilities, practices, procedures, processes and resources for determining and implementing the major-accident prevention policy;
(3) the following issues shall be addressed by the safety management system:
(a) organisation and personnel - the roles and responsibilities of personnel involved in the management of major hazards at all levels in the organisation; identification of training needs of such personnel and the provision of the training so identified; and involvement of employees and, where appropriate, subcontractors;
(b) identification and evaluation of major hazards - adoption and implementation of procedures for systematically identifying major hazards arising from normal and abnormal operations and assessment of their likelihood and severity;
(c) operational control - adoption and implementation of procedures and instructions for safe operation, including maintenance of plant, processes, equipment and temporary stoppages;
(d) management of change - adoption and implementation of procedures for planning modifications to, or the design of, new waste facilities;
(e) planning for emergencies - adoption and implementation of procedures to identify foreseeable emergencies by systematic analysis and to prepare, test and review emergency plans to respond to such emergencies;
(f) monitoring performance - adoption and implementation of procedures for the ongoing assessment of compliance with the objectives set by the operator's major-accident prevention policy and safety management system, and the mechanisms for investigation and taking corrective action in case of non-compliance. The procedures should cover the operator's system for reporting major accidents or near misses, particularly those involving failure of protective measures, and their investigation and follow-up on the basis of lessons learnt;
(g) audit and review - adoption and implementation of procedures for periodic systematic assessment of the major-accident prevention policy and the effectiveness and suitability of the safety management system; the documented review of performance of the policy and safety management system and its updating by senior management.
On-site emergency plan
133. Operators will also need to prepare an internal emergency plan specifying the measures to be taken on site in the event of an accident. To comply with Article 6(4), this must be adequate to secure the following objectives:
(a) to contain and control major accidents and other incidents so as to minimise their effects, and in particular to limit damage to the environment;
(b) to implement the measures necessary to protect the environment from the effects of major accidents and other incidents;
(c) to communicate the necessary information to the public and to the relevant services or authorities in the area;
(d) to provide for the rehabilitation, restoration and clean-up of the environment following a major accident.
Safety Manager
134. Operators will also need to appoint a safety manager responsible for the implementation and periodic supervision of the major-accident prevention policy.
Public awareness
135. Article 6(6) requires that information on safety measures and on the action required in the event of an accident is provided free of charge, and as a matter of course, to the public concerned. This will need to include at least the following information:
(1) Name of operator and address of the waste facility.
(2) Identification, by position held, of the person providing the information.
(3) Confirmation that the waste facility is subject to the regulations and/or administrative provisions implementing this Directive and, when applicable, that the information relevant to the elements referred to in Article 6(2) has been submitted to the competent authority.
4) An explanation in clear and simple terms of the activity or activities undertaken at the site.
(5) The common names or the generic names or the general danger classification of the substances and preparations involved at the waste facility as well as waste which could give rise to a major accident, with an indication of their principal dangerous characteristics.
(6) General information relating to the nature of the major-accident hazards, including their potential effects on the surrounding population and environment.
(7) Adequate information on how the surrounding population concerned are to be warned and kept informed in the event of a major accident.
(8) Adequate information on the actions the population concerned should take, and on the behaviour they should adopt, in the event of a major accident.
(9) Confirmation that the operator is required to make adequate arrangements on site, in particular liaison with the emergency services, to deal with major accidents and to minimise their effects.
(10) A reference to the external emergency plan drawn up to cope with any off-site effects from an accident. This should include advice to co-operate with any instructions or requests from the emergency services at the time of an accident.
(11) Details of where further relevant information can be obtained, subject to the requirements of confidentiality laid down in national legislation.
136. The intention is to follow COMAH by placing this requirement on the operator and for the information to be subject to 3 yearly reviews and, where necessary, updated (as also required by Article 6(6)). The MWD does not place a timetable on when this information is provided to the public and does not link such provision to Article 5's waste management plan requirements. However, it must be assumed that, for existing sites at least, compliance must be ensured by Article 24(1)'s date of 1 May 2012. For new sites, the Scottish Government' view is that this information should properly be provided after planning permission for a Category A waste facility is granted and that 6 months from such an approval appears reasonable. This would separate the requirement from the planning application/Article 5 consenting process.
Q20 Do you agree that the Regulations should require operators to prepare major-accident prevention policies and on-site emergency plans covering the environment?
Q21 Do you agree that the public awareness requirements of Article 6(6) should be undertaken by the operator?
Q22 Do you agree that public awareness requirements should be implemented by 1 May 2012 for existing sites and within 6 months of planning permission for new sites?
Role of external bodies
137. COMAH sets out appropriate roles for external bodies in relation to activities that fall within the scope of these Regulations. The intention is for the MWD Regulations to include similar provisions. This is explained further in the following paragraphs, with appropriate adaptations where considered necessary.
Initial notification
138. Within a reasonable period of time prior to the start of construction of a Category A waste facility (or by 1 May 2012 for an existing facility) the operator must send to HSE and SEPA a notification containing the following information:
1 the name and address of the operator;
2 the address of the Category A waste facility concerned;
3 the name or position of the person in charge of the facility;
4 information sufficient to identify the dangerous substances or category of dangerous substances present;
5 the quantity and physical form of the hazardous and/or dangerous substances present and any risk assessment undertaken to show that failure or incorrect operation could give rise to a major accident taking into account factors such as the present or future size, the location and the environmental impact of the waste facility;
6 details of the elements of the immediate environment liable to cause a major accident or to aggravate the consequences thereof.
On-site emergency plans
139. The operator shall consult:
(a) persons employed in the establishment;
(b) the Scottish Environment Protection Agency;
(c) the emergency services;
(d) the health authority for the area where the establishment is situated; and
(e) the local authority in whose area the facility is situated;
on the preparation of the on-site emergency plan.
Provision of information to the public
140. When preparing information, the operator must consult the local authority in whose area the establishment is situated and such other persons who the operator considers appropriate. The operator shall remain responsible for the accuracy, completeness and form of the information supplied to the public.
Provision of information to SEPA
141. As with COMAH, there will be a general requirement that, when requested to do so by SEPA, operators must provide sufficient information to demonstrate that they have taken all measures necessary to comply with the requirements of the MWD Regulations relating to Article 6.
Q23 Do you agree with the proposed consultation and notification procedures?
Enforcement
142. It is considered that sufficient enforcement provisions are already available to the various relevant regulatory bodies to ensure compliance with Article 6. SEPA has appropriate powers under the Water Environment (Controlled Activities) (Scotland) Regulations 2005 and planning authorities can take enforcement action under town and country planning legislation.
Q24 Do you agree that existing enforcement powers are adequate to secure compliance with Article 6?
External Emergency Plan
143. The MWD places a duty on the 'competent authority' to prepare an external emergency plan specifying the measures to be taken off-site in the event of an accident. As part of the application for an Article 7 Permit the operator shall provide the competent authority with the information necessary to enable the latter to draw up that plan. There is also an important Directive requirement for public participation in the preparation or review of the off-site plan.
144. Under COMAH, responsibility for preparing "off-site emergency plans" rest with the local authority in whose area the establishment is located. These duties are likely to be undertaken by Councils, in many instances working jointly. The intention is to follow this model and identify "local authorities" as the "competent authority" for the preparation of external emergency plans and for ensuring appropriate consultation on such plans is undertaken.
Q25 Do you agree that "local authorities" should be identified as the "competent authority" for the purposes of Article 6?
145. As with on-site emergency plans, external emergency plans must be adequate to secure the following objectives:
(a) to contain and control major accidents and other incidents so as to minimise their effects, and in particular to limit damage to the environment;
(b) to implement the measures necessary to protect the environment from the effects of major accidents and other incidents;
(c) to communicate the necessary information to the public and to the relevant services or authorities in the area;
(d) to provide for the rehabilitation, restoration and clean-up of the environment following a major accident.
146. The operation of a Category A waste facility is dependent on the meeting of the Article 6 requirements placed on operators set out above. This means that commencement of operations is not dependent on an external emergency plan being in place although there is a requirement in Article 6(3) for operators to provide, with the application for a Permit, the information that will be needed to draw up an external emergency plan. This suggests that arrangements should be put in place to ensure that "competent authorities" (i.e. local authority officials responsible for external emergency plans) are consulted as part of the planning application process for Category A waste facilities and that planning permission should not be granted until they are satisfied that all the necessary information has been provided to enable them to draw up an external emergency plan. In practice, such work is unlikely to commence until planning permission is granted.
147. The COMAH Regulations require off-site emergency plans to be prepared no later than 6 months (or such longer period, not exceeding 9 months, as may be agreed in writing) from the date of notification of the need to prepare a plan. It is proposed to include similar timescales for the MWD although this period will begin on the date that the planning application is approved.
Q26 Do you agree that local authority emergency planning teams should be consulted on all planning applications which involve Category A waste facilities?
Q27 Do you agree that external emergency plans should be prepared within 6 months (or such longer period, not exceeding 9 months, as may be agreed in writing) from the date that planning permission is granted for a Category A waste facility?
Accidents
148. The Directive requires Member States to ensure that, in the event of a major accident, the operator immediately provides the competent authority with all the information required to assess and minimise the extent, actual or potential, of the environmental damage. Such a requirement will be included in the Regulations and this will be extended to include SEPA to parallel the Agency's responsibility under COAMH. The MWD Regulations will also include provisions similar to those in Regulation 12 of COMAH which places a duty on operators to put into effect on-site emergency plans.
Fees
149. The MWD Regulations will include provisions enabling the competent authority and SEPA to charge operators a fee for performing any of the functions set out in this part of the consultation paper. Any fee should not exceed the sum of the costs reasonably incurred by these bodies for the performance of their duties.
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