How should Article 5 Brzo be interpreted and how should it be complied with?

Recently, the Administrative Jurisdiction Division of the Council of State ruled on the question of when the regulator can impose a requirement about the way in which Article 5 of the Brzo must be complied with (on the basis of Section 27 of the Dutch Working Conditions Act (Arbowet)).

The Minister of Social Affairs and Employment had imposed several requirements on a company for the duty of care laid down in Article 5 of the Brzo. According to the Minister, this company had applied tags to a large number of the instruments and manual shut-off devices in systems, which were not always clearly legible, robust and weather-resistant. If the systems were to be used improperly, an incorrect shut-off device may be used that could result in uncontrolled petrol or diesel leaks, which could lead to health risks. The precautions taken by the company in question had not completely eliminated these risks and this was, according to the Minister, a violation of Article 5 of the Brzo. The company did not agree and wanted to have the scope of the power to impose a requirement in order to comply with Article 5 of the Brzo assessed. The company argued that it was wrong not to have discussed whether the uncontrolled release of petrol and diesel during business operations could lead to the occurrence of a serious risk to human health and therefore to a major accident.

The Division accepted that argument. According to the Division, Article 5 of the Brzo does not oblige a company to take every conceivable precaution to prevent all conceivable accidents with hazardous substances or to mitigate the negative consequences thereof. They must be precautions to prevent major accidents. According to Article 1 of the Brzo, a major accident is 'an event resulting from uncontrolled developments during business operations in an establishment, which immediately or over time causes serious danger to human health or the environment inside or outside the establishment and in which one or more hazardous substances are involved'. Article 3 of the Seveso III Directive gives several examples: heavy emissions, fires and explosions. With this definition in mind, the mere fact that somewhere in a terminal petrol or diesel inadvertently flows out of a pipeline is not a major accident, because it does not necessarily pose a serious risk to human health or the environment. Whether or not this poses a serious risk depends in part on the precautions taken by the company to deal with such situations.

The Brzo does not specify how the company must comply with its obligation to take precautions to prevent major accidents or the consequences of such. In principle, it is therefore up to the company itself to decide on the precautions to be taken. This makes a requirement for compliance with Article 5 of the Brzo significant, because it means that the regulator rather than the operator determines what precautions must be taken. The Division considered that, because of the significant nature of such a requirement, it must be based on sound reasons, which in any case include the precautions already taken by the operator and the question as to why, in addition to these measures, other precautions are necessary to prevent major accidents or their consequences.

This ruling of the Division emphasises that all procedures and safety precautions within your Brzo business must be considered before it can be concluded that you are in breach of your duty of care. These procedures must all be in order, however, as a far-reaching duty of care is involved. If you are struggling with the issue of whether your procedures are compliant or if you need advice on the Brzo regulations, we have a Safety, Environment & Brzo team that will be pleased to help you!