“Brzo” companies need to be careful: make sure the procedures are in order
The Dutch Supreme Court ruled last month that the Court of Appeal had incorrectly acquitted a “Brzo company” from failing to comply with its duty of care under Section 5 of the Major Accidents (Risks) Decree 1999 [Besluit risico`s zware ongevallen, “Brzo”] (the ruling).
That duty of care means that a Brzo company must take all necessary measures to prevent major accidents. In its judgment, the Court of Appeal had found that the determining factor was whether the specific incident in the case concerned could have grown into a major accident. Because that was not apparent from the file, the Court of Appeal acquitted the Brzo company from violating its duty of care pursuant to Section 5 of Brzo 1999. The Supreme Court has now found that that acquittal was incorrect.
The case involved a chemicals company in Terneuzen where a reaction occurred accidentally when substances were being mixed. The manhole cover failed and the mixture was released. The company did not have an adequate safety management system and, for example, there were also no procedures or work instructions present at the workplace.
The Supreme Court found that what was relevant was not whether a specific incident could grow into a major accident but whether all the necessary measures had been taken to prevent such accidents. According to the Supreme Court, that basic principle was also apparent from the system of the Brzo regulations. When a company holds hazardous substances above a certain threshold quantity, it must implement a policy aimed at preventing major accidents. Any other interpretation could mean, after all, that failure to comply with the duty of care would only be punishable in the event of incidents (or near miss incidents). Failure to put in place all the measures that can prevent a major accident can therefore be punishable regardless of whether an incident (or near miss incident) actually occurs. A company’s failure to comply with the duty of care could be identified, for example, by a regulator during a Brzo audit.
This ruling by the Supreme Court emphasises once more how very important it is for Brzo companies to ensure that all the relevant procedures are in proper order. These are relevant factors in determining whether you in fact comply with the duty of care pursuant to the Brzo regulations. Are you worried about whether your procedures comply or do you need advice about the Brzo regulations? If so, we would be only too happy to help you.
