REPORT VEILEDNING. Proposal of regulation and control of access to ammonium nitrate an assessment. 15 June 2012

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1 12 REPORT VEILEDNING Proposal of regulation and control of access to ammonium nitrate an assessment 15 June 2012

2 Published by: Norwegian Directorate for Civil Protection (DSB) 2012 ISBN: Graphic production: Erik Tanche Nilssen AS, Skien

3 Proposal of regulation and control of access to ammonium nitrate an assessment 15 June 2012

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5 Innhold 1 Summary Mandate and organisation Mandate Organisation of the work General information on ammonium nitrate and its use in Norway Mineral fertiliser Explosives Downstream users Current national regulatory, inspection and control schemes Commission Regulation (EC) No. 552/2009 restricts access to ammonium nitrate National regulatory, inspection and control systems Protection of health and the environment the REACH Regulation Requirements relating to classification, labelling and packaging of s ubstances and mixtures Protecting the safety of surroundings Fire and Explosion Prevention Act Safe handling of flammable, reactive and pressurised substances the Hazardous Substances Regulation Safe handling of explosive substances Explosives Regulation Transport requirements Land Transport Regulation The requirement to prevent and limit the consequences of major accidents Major Accident Regulation Requirement for systematic safety work Internal Control Regulation Considerations relating to good quality fertiliser Regulation relating to EC fertilisers Concern for food safety Regulation relating to trading of fertilisers and liming materials International regulation Denmark Sweden United Kingdom Germany The Netherlands The Working Group s assessments and proposed measures General information on EEA legal constraints Overview of products Overview of manufacturers, importers and distributors Overview of end users and recording of transactions Proof of identity requirement for buyers Storage Transport security measures Special requirements for labelling products Surveillance and inspection National contact point for reporting suspicious transactions Information and education campaign Need for legislative and regulatory changes Financial, administrative and other significant consequences of proposed actions... 49

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7 1 Summary As part of its measures against terrorism, the EU has decided to restrict the general access to substances and mixtures containing 16 % or more by weight of nitrogen in relation to ammonium nitrate ( 16 % N in relation to AN). In this connection, the Ministry of Justice and Public Security (JD) has given the Directorate for Civil Protection and Emergency Planning (DSB) the task to examine whether, and to what extent, more stringent schemes shall and can be established in Norway relating to access to such substances and mixtures of substances. A Working Group consisting of staff from DSB was established along with an external resource group consisting of representatives from the industry, special interest groups, authorities, research institutions and other relevant parties, which the Working Group has used as discussion and consulting partners. The work was based on a number of basic principles. DSB has considered it important that: The measures that are proposed will help strengthen society s overview of substances and mixtures containing 16 % N in relation to AN with respect to import, manufacture, sale and end-users. The measures proposed will contribute to increased public safety by making it difficult to carry out unwanted intentional acts, including planning and executing terrorist attacks using AN. The measures that are proposed should be riskbased, i.e. there should be a logical connection between the requirements requested of the various parties and the risks facing society. The measures that are proposed shall be feasible from an overall cost-benefit analysis and should not impose undue burdens on individual parties or groups. In its assessments, the Working Group has placed particular emphasis on whether the desired security level can be achieved through the use of strategic instruments other than regulatory requirements. The measures proposed in this report are meant to be applied in the context of the measures that will be relevant also for the other 14 chemical substances that can be used to make bombs, on which DSB will submit an assessment by 1 October In relation to substances or mixtures containing 16 % N in relation to AN the Working Group recommends that the following measures be implemented: Product inventory: The Working Group recommends the introduction of a requirement that anyone who imports or produces substances and mixtures containing 16 % N in relation to AN must declare this to the Product Register regardless of the quantity produced or imported, and regardless of application. Overview of importers, manufacturers, wholesalers, distributors and storage: The Working Group recommends that there be a requirement that all importers, manufacturers, wholesalers and distributors of substances and mixtures containing 16 % N in relation to AN shall be registered in DSB s SamBas register. Concerning the registration of storage, the Working Group recommends continuing the existing regulations. Proof of identity requirement for buyers: The Working Group recommends the establishment of a requirement that the buyer must be able to prove that he/she is a legitimate user. In a sales situation buyers must be able to present satisfactory proof of identity to the seller. The Working Group recommends that parties with an already established customer relationship with the seller be exempted from this requirement. Registration of all transactions: The Working Group recommends that all transactions involving substances and mixtures containing 16 % N in relation to AN shall be registered, and that the register shall be kept by the seller for a minimum of three years. The Working Group furthermore recommends that these records shall be made available to the inspection authority at any time. Securing storage: The Working Group recommends the introduction of requirements for physical security of storages, but that requirements for storage where substances and mixtures containing 16 % to <28 % N in relation to AN are stored shall be less extensive than for storage with substances and mixtures containing 28 % N in relation to AN. The Working Group recommends that farmers be exempted from the general requirement for physical security of fertiliser containing between 16 % and 28 % N in relation to AN. 5

8 Transport security: The Working Group recommends that parties perform an assessment before signing agreements on transport, and only use carriers that are satisfactorily identified, for the transport of all the substances and mixtures containing 16 % N in relation to AN, including those that are not classified as dangerous goods. For substances and mixtures classified as dangerous goods no change in the current regulations is proposed. Labelling of products: The Working Group recommends the introduction of a requirement that importers and manufacturers shall specifically label substances and mixtures containing 16 % N in relation to AN before they are offered on the Norwegian market. The labelling shall indicate that there are restrictions on who can obtain access to the substance or mixtures. Contact point for reporting suspicious transactions: The Working Group recommends the establishment of a single contact point with a single phone number and a single address for reporting suspicious inquiries and suspicious transactions, as well as theft of substances or mixtures containing 16 % N in relation to AN. This contact point should be a police authority. Information and education campaign: The Working Group recommends that information campaigns and public awareness serve as key instruments for increasing vigilance, both in the business chain and in society in general, in relation to unwanted intentional acts involving substances and mixtures containing 16 % N in relation to AN. The Working Group recommends that guidelines be developed where the duties of parties affected by the proposed measures are specified. Surveillance and inspection: The Working Group recommends that the authorities give priority to inspection of parties that import, manufacture, sell, distribute or are users of substances and mixtures containing 16 % N in relation to AN. New parties who establish themselves, and who can obtain access to these substances should be prioritised in future inspections. There are currently several different authorities that carry out inspections. In its recommendations, the Working Group has sought to build on existing inspection regimes to the greatest extent possible. Legislative and regulatory changes: The Working Group recommends that legislation and regulations be reviewed and updated so that they are consistent with the proposed measures. The Working Group recommends raising the sentencing framework in the Fire and Explosion Prevention Act. The proposed measures are a mix of technological, organisational and human measures. The Working Group recommends that the proposed measures must be considered in context, and not individually, as it is the sum of the measures that will contribute to increased public safety by making it difficult to carry out unwanted intentional acts with the use of ammonium nitrate. The proposed measures will entail economic and administrative consequences. 6

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11 2 Mandate and organisation 2.1 Mandate As an element in its efforts to combat terrorism, the EU has adopted Commission Regulation (EC) No 552/2009, in which restrictions on who can obtain access to substances and mixtures containing 16 % or more by weight of nitrogen in relation to ammonium nitrate ( 16 % N in relation to AN) are introduced. The restrictions on the sale of ammonium nitrate were incorporated into Norwegian law on 17 November 2011 through the EEA Agreement and the REACH Regulation 1. The restrictions mean that only professional users can obtain access to substances and mixtures containing 16 % N in relation to AN (this corresponds to approx. 45 % ammonium nitrate in a mixture). The following groups are defined as professional users: Downstream users and distributors, including natural or legal persons licensed or authorised to acquire explosives under Regulation No. 922 of 26 June 2002 relating to the handling of explosive substances. Farmers for use in agricultural activities, either full time or part time and not necessarily related to the size of the land area. Natural or legal persons engaged in professional activities such as horticulture, growing plants in greenhouses, maintenance of parks, gardens or sports pitches, forestry or other similar activities. Ammonium nitrate is used in different concentrations in fertilisers. The restriction includes a prohibition against selling fertiliser containing 16 % N in relation to AN to private individuals other than those described above. On 17 February 2012, the Ministry of Justice and Public Security assigned DSB the task of establishing a Working Group that by 15 June 2012 was to submit a report detailing whether and to what extent more stringent schemes relating to access to ammonium nitrate can be 1 Regulation No. 516 of 30 May 2008 relating to registration, evaluation, authorisation and restriction of chemicals, Annex XVII, Item 58 established in Norway. In that connection DSB was to: Review current Norwegian regulation of access to ammonium nitrate. Review and assess the current inspection and control systems relating to access to ammonium nitrate. Propose potential changes to the current inspection and control systems and the need for adjustments in the current regulations. An assessment of EEA legal constraints and cost-benefit assessments were to be done for relevant measures. Among other things, the need for changes was to be weighed against the establishment of disproportionate restrictions on access to chemicals for those who have legitimate needs. Seek information and knowledge on a broad basis and have a dialogue with relevant professionals and experts. Review the financial, administrative and other significant consequences of proposed measures. 2.2 Organisation of the work A Working Group consisting of professional staff in DSB was established in connection with the report. An external resource group that the Working Group used as a discussion and consulting partner has also been established. The broad-based resource group consisted of representatives from the industry, special interest organisations, authorities, research institutions and other relevant parties. The following were invited to participate in the resource group with up to two representatives: Bransjerådet for fjellsprengning (industry council for rock blasting) Fiskå Mølle (supplier of agricultural products) Norwegian Defence Research Establishment (FFI) KRIPOS - National Criminal Investigation Service Ministry of Agriculture and Food (LMD) Norwegian Food Safety Authority Norwegian Farmers Union Norgesfôr (producer of cattle fodder) Norske anleggsgartnere - miljø og landskapsentreprenører (Norwegian landscape gardeners - environmental and landscape contractors) 9

12 Norwegian Agricultural Purchasing and Marketing Co-operation (FK) Norsk Bonde- og Småbrukarlag (Norwegian Farmers and Small farms Union) Norsk Gartnerforbund (federation of Norwegian horticulture producers) Federation of Norwegian Industries Norwegian Agricultural Extension Service Norwegian Police Directorate (POD) Politiets bombegruppe (Police bomb group) Norwegian Police Security Service (PST) Product Register/Climate and Pollution Agency (Klif) Norwegian Customs and Excise (TAD) Yara International ASA Yara Norge AS On 18 April 2012, a full-day meeting was held at DSB in which the Working Group and resource group, with the exception of Kripos and POD, participated. The subject of the meeting was the study and discussion of potential measures. The draft report was sent to the resource group for consultation, and its members have had the opportunity to provide input. Some members of the resource group emphasised that the deadline for feedback on the consultation draft was short. This is due to the short deadline DSB was given for completing the report. DSB is responsible for the assessments and proposals presented in the report. For capacity reasons, representatives from Norgesfôr and Norsk Gartnerforbund declined to participate in the resource group. Fiskå Mølle and Norske anleggsgartnere miljø og landskapsentreprenører did not respond to the invitation. The Working Group is been responsible for the deliberation underlying the report. The Working Group mainly consisted of representatives from DSB s Industry, Products and Hazardous Substances Department (NPF). Department Manager Siri Hagehaugen has been the project manager and reported to NPF Department Director Torill Tandberg. DSB s group of directors has been informed about the work at the ordinary director meetings. Safetec Nordic AS has assisted with process support. 10

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15 3 General information on ammonium nitrate and its use in Norway Ammonium nitrate is a salt consisting of ammonium and nitrate ions. At room temperature it is a crystalline solid with the chemical formula NH 4 NO 3. Industrially, ammonium nitrate is commonly produced by a reaction between ammonia and nitric acid. Ammonium nitrate is classified as an oxidizing agent, which means that it contributes to faster burning of combustible materials. When ammonium nitrate is part of a detonation, ammonium nitrate also reacts with itself. This property makes the ammonium nitrate more suitable for use in explosives than many other oxidizing agents. The main application areas for ammonium nitrate are as an ingredient in fertiliser and as an ingredient in explosives for rock blasting. There are also some other applications such as production of nitrous oxide (dinitrogen monoxide), in ice packs (cold packs) for sports injuries, products for cleaning soot and in certain types of industry. The strong oxidizing properties require that ammonium nitrate with high concentrations is not contaminated by other substances. There have been several large explosions throughout history, in which contaminated ammonium nitrate has detonated and caused loss of life and extensive damage. Experience from these explosions has led to strict requirements, including the purity of ammonium nitrate. Thanks to these requirements it is safe to transport, store and handle ammonium nitrate and products containing ammonium nitrate if simple precautions are taken. In terrorist acts, bombs based on ammonium nitrate have been used on several occasions, including the attack on the government office complex in Oslo on 22 July The production of such bombs requires knowledge about the type of ammonium nitrate that is suitable and other chemicals that are necessary for enabling the bomb to detonate. Its manufacture is risky and the primary explosives that are produced are often highly unstable. Those who manufacture and handle these homemade primary explosives consequently expose themselves to great risk, and several have been killed in connection with such production. 3.1 Mineral fertiliser Plants need nutrients in order to grow. There are basically around 17 nutrients that are considered essential for normal growth and development of plants. Nutrients occur naturally in the soil, but effective cultivation requires the supply of these nutrients. Mineral fertiliser is therefore essential for effective food production. Nitrogen (N), phosphorus (P) and potassium (K) are important macronutrients that plants need in relatively large quantities. Ammonium nitrate is a very important source of nitrogen, and a pure ammonium nitrate fertiliser will have an NPK designation of , where the number 34 indicates that the fertiliser contains 34 % nitrogen. European agriculture is largely based on fertilisers containing ammonium nitrate. Fertilisation with urea is not considered a good alternative in Norway based on climate considerations. Urea is less environmentally friendly because large amounts of nitrogenous greenhouse gases are easily released into the atmosphere. Urea is also a substance that can be used as a raw material in the manufacture of homemade bombs. Approximately 400,000 to 450,000 tonnes of mineral fertilisers are sold in Norway each year, of which about 50,000 tonnes are imported. Approximately 400,000 tonnes are fertilisers containing ammonium nitrate with 16 % N in relation to AN. Norway has 44,450 registered enterprises in the agricultural industry that have a potential need for mineral fertilisers. The majority of mineral fertiliser used in Norway contains between 16 and 27 % N in relation to AN. This is used primarily in connection with the cultivation of grass and grain. Sales of mineral fertiliser containing 34 % N in relation to AN amount only to about 10,000 tonnes. Such fertilisers are used primarily by those who have livestock, to complement natural fertiliser. Sales of mineral fertiliser in Norway take place mainly (90 %) through Yara s eight wholesalers and an estimated distributors (FK), which sell fertiliser through seven large fertiliser terminals or distribution warehouses. 13

16 In addition, there is some import business with dedicated agents/distribution networks. All mineral fertilisers sold in Norway must be registered with the Norwegian Food Safety Authority. Deliveries of fertiliser from the terminal to the users correspond to 15,000 shipments (each approximately 30 tonnes). Deliveries to individual users can vary from one to 500 tonnes. For cost reasons and logistical factors such as storage and transport capacity, over 50 % of mineral fertiliser is supplied to farmers in the July December period. Other users of fertilisers include greenhouse growers, landscape gardeners, plant nurseries, forest nurseries, park managers, golf courses etc. Studies suggest that these parties may have some need for mineral fertiliser containing 16 % N in relation to AN. The Working Group has been in contact with several companies that sell fertiliser containing 16 % N in relation to AN to these parties. The Working Group has been informed that sales of such fertiliser takes place to parties recorded in customer registers. There are no sales to private individuals. Most firms the Working Group has been in contact with have electronic customer records where the organisation number of the enterprise that buys fertiliser is registered. The companies said that they can tell to whom they have sold a given type of fertiliser and when. Some stated that they have discontinued cash sales of such fertilisers and that all purchases are invoiced. The survey revealed a lack of awareness among some businesses relating to the sale and storage of fertiliser containing 16 % N in relation to AN. A number of companies lack knowledge about the concentration of AN in the fertiliser that they sell. There is also little focus on secure storage. The Working Group emphasises that while the survey has been limited to a selection of businesses, it believes it provides a representative picture of the sale and storage of fertiliser. 3.2 Explosives In addition to mineral fertilisers, one of the main applications of ammonium nitrate is the manufacture of explosives. The explosives industry is strictly regulated in Norway by licensing requirements throughout the entire chain, from production to destruction. Anyone who can legally handle explosives in Norway is to be found in DSB s SamBas register. The ammonium nitrate used to make explosives is of a special quality that makes it particularly suitable for the manufacture of explosives. This type of AN is sold to persons or businesses that have permission from DSB to produce explosives. However, there is currently no prohibition against the sale of such AN to other professional users, such as greenhouse growers who use AN as an additive in irrigation systems. Cartridge explosives are not produced in Norway. So-called bulk explosives are used to a greater extent today. For the production of bulk explosives, the explosives industry uses ammonium nitrate with a high content of nitrogen, so-called technical AN, with a nitrogen content between 33.5 and 34.5 %. In recent years there has been a sharp increase in the use of bulk explosives in which different AN emulsions constitute the main ingredient. The various AN emulsions do not become explosives until the moment they are mixed with other substances, such as oil, diesel or a gas agent. Mixing is done with special equipment; a mobile charging and processing unit, at the site where blasting work is to be performed. ANFO is a form of explosives based on ammonium nitrate and fuel oil. It is produced in Norway and can be supplied directly to the user in bulk or in sacks in the form of small granules. ANFO is a stable explosive that is safe to handle. It is estimated that approximately 10 % of national sales of explosives consist of cartridged explosives, while % is ANFO in bulk and % are emulsions made into explosives at the blast site. There are basically five suppliers of explosives in Norway. Yara is currently the largest supplier of ammonium nitrate to these manufacturers. AN is imported from Sweden and shipped to Norway, either by Yara itself, or by the manufacturers. The ammonium nitrate products used to manufacture explosives are mainly stored locked up at the production site. They are stored either in explosives magazines or tanks. ANFO is delivered directly to users, while AN emulsions are produced at slurry stations located at several different places in Norway, and then distributed to users. The slurry stations are spread geographically to make it easier to supply and replenish the product to customers. There are in excess of 10 slurry stations in Norway divided among the various manufacturers. Current regulations for the manufacture of explosives are largely written in terms of production of cartridged explosives, and do not sufficiently take into account current production and use of bulk explosives. DSB, therefore, has initiated a project to examine the regulation of all circumstances relating to the handling of bulk explosives. This also emerges as a control parameter in the Ministry of Justice and Public Security s allocation letter to DSB for 2012, which states: DSB shall consider whether regulations 14

17 relating to mobile units for the production of explosives are appropriate according to safety and security conditions. DSB therefore wishes to look particularly at the safety of storage and use of mobile charging and manufacturing units for bulk explosives, and the challenges associated with the rental of such units to rock blasters. There are also challenges in terms of safety and security with the use of such charging and production units in densely populated areas. DSB s preliminary conclusions in this work are that there is a need for: Clear and basic requirements for enterprises that manufacture explosives, relating to expertise, practices, procedures and site facilities. Clearer regulation of the responsibilities and obligations of both the rental/lease of mobile charging and production units, including maintenance requirements. Physical security requirements for storage of AN and AN emulsions, such as requirements for fencing, alarms and tents. Safety distance requirements for storing AN and AN emulsions. The storage sites must be registered in SamBas. Since DSB is already in the process of evaluating all factors relating to the explosive industry s handling of AN-based explosives, the Working Group will not go into further detail as regards explosives in this report. However, the Working Group recommends that DSB gives this work priority so that the necessary regulatory amendments can be adopted and enter into force in Downstream users The REACH Regulation defines a downstream user as a professional user with a legitimate right to buy substances or mixtures. An enterprise is a downstream user if it uses a substance, alone or in a mixture in a professional context. A consumer is thus not a downstream user. The term downstream user covers all professional users with a legitimate right to buy substances or mixtures containing 16 % N in relation to AN except those mentioned in Chapters 3.1 and 3.2. As part of the assignment, the Working Group has conducted a survey to identify any other professional users and applications. Relevant professional users and products are: Cold packs. Soot cleaning. Analysis laboratories. Chipboard. Disinfectants. Nitrous oxide production. Water purification. Cold packs: Ammonium nitrate is used in cold packs. When the AN is mixed with water a reaction takes place that gives off cold, which makes it suitable for cold packs used for sports injuries, swelling of the muscles and the like. In Sweden, the homemade bomb that exploded in Stockholm in December 2010 was based on AN from cold packs. Sweden has been commissioned by the European Chemicals Agency (ECHA) to study how the individual Member States determine who is considered a professional user in the world of sports. This is in relation to the fact that professional users have the right to use substances or mixtures containing 16 % N in relation to AN. It is difficult to see that a product like cold packs can be on the market without being made available to private individuals. A sports club for professional athletes can in principle be considered a commercial activity, and thus be able to use cold packs containing 16 % N in relation to AN. They will then have to lock up cold packs and establish procedures to account for all the cold packs that are used. But even here it will be difficult to have a system that ensures complete control. In Norway, most sports clubs have an organisation that makes it very difficult to have full control over the cold packs that are used. The Working Group recommends that cold packs containing 16 % N in relation to AN cannot be sold in retail stores such as today. With respect to who are to be regarded as professional users in the world of sports, the Working Group recommends awaiting the assessment from the ECHA before reaching a conclusion. Soot cleaning: There are products on the market containing ammonium nitrate in an aqueous solution used for cleaning soot from the smoke from ship engines. This is done to increase fuel efficiency by removing the soot from combustion, but also to prevent the formation of acid that can cause corrosion on heat exchangers and other parts. It is appropriate to set safety standards relating to the use and storage of such AN solutions. Analysis laboratories: Various analysis laboratories will need ammonium nitrate. The Working Group is aware that suppliers of such sales generally carry out strict controls. Among other things, the end user must document the use of the chemicals they purchase and that they are a serious laboratory. It may therefore be difficult for private individuals to purchase AN or other chemicals directly from Norwegian suppliers. 15

18 Ammonium nitrate is also used in laboratories associated with schools and universities where students may have access to the chemical. The Working Group is not aware of whether the procedures for the use and storage of AN in such laboratories have been tightened, and sees a need for information campaigns vis-à-vis this end user; for example, in collaboration with the Norwegian Directorate of Education and Training. This will also be relevant in connection with restrictions on other chemicals that can be used to make bombs. The Working Group will elaborate on this in the report to be submitted by 1 October Chipboard: Ammonium nitrate is used as a chemical in the manufacture of chipboard, where it is part of the glue used in production. Such production will take place in industries which by simple measures can ensure that individuals cannot obtain access to AN. Disinfectant: Disinfection and cleaning agents used in the food industry may contain ammonium nitrate. The Working Group is not aware of the extent of the use or how the storage of AN takes place. Nitrous oxide production: Ammonium nitrate is used in the production of nitrous oxide. Such production no longer takes place in Norway. Water purification: Ammonium nitrate can also be used for fertilisation during the biological treatment stage in water treatment plants. This product may come on the market in Norway this year. However, water treatment plants are usually locked and not accessible to private individuals. 16

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21 4 Current national regulatory, inspection and control schemes 4.1 Commission Regulation (EC) No. 552/2009 restricts access to ammonium nitrate As a follow-up to its action plan against terrorism, the EU has evaluated the need for stricter regulation of access to hazardous substances that could be used to make explosives or bombs. A large number of substances have been evaluated and the first substance to be subjected to restrictions is substances or mixtures containing 16 % or more by weight of nitrogen in relation to ammonium nitrate. In the EU, the restriction was adopted through Commission Regulation (EC) No 552/2009 of 22 June 2009 amending Regulation (EC) No 1907/2006 of the European Parliament and of the Council on the Registration, Evaluation, Authorisation and Restriction of Chemicals (the REACH Regulation) as regards Annex XVII. The REACH Regulation came into force in the EU on 27 June 2010, but did not become part of the EEA Agreement until 1 July On 17 November 2011, the REACH Regulation became part of Norwegian law through an amendment of the Norwegian REACH Regulation. The restriction on ammonium nitrate means that it is not permissible to place on the market substances or mixtures containing more than 28 % by weight of nitrogen in relation to ammonium nitrate, for use as a solid fertiliser, straight or compound, if the fertiliser does not pass the detonation test as described in Regulation (EC) No 2003/2003. The detonation test requirements have been implemented by Regulation No of 9 November 2009 relating to fertiliser marketed as EC fertiliser. This is a joint regulation between the Norwegian Food Safety Authority and DSB. The restriction also entails a ban on the marketing of a substance or mixture that contains 16 % or more by weight of nitrogen in relation to ammonium nitrate (equivalent to 45 % ammonium nitrate in a mixture), except for supply to: Downstream users and distributors, including natural or legal persons licensed or authorised in accordance with Council Directive 93/15/EEC on the harmonisation of the provisions relating to the placing on the market and supervision of explosives for civil use, which was implemented by Regulation No. 922 of 26 June 2002 relating to the handling of explosive substances. Farmers for use in agricultural activities, either full time or part time and not necessarily related to the size of the land area. Natural or legal persons engaged in professional activities in horticulture, plant growing in greenhouses, maintenance of parks, gardens or sports pitches, forestry or similar activities. An enterprise is called a downstream user under REACH if it uses a substance, alone or in a mixture, in a professional context. A consumer is not a downstream user. Under the EC Regulation, farmer shall mean a natural or legal person or a group of natural or legal persons, regardless of legal status, as long as they are in the EEA and exercise an agricultural activity. Agricultural activity is in turn defined as the production, rearing or growing of agricultural products including harvesting, milking, breeding animals and keeping animals for farming purposes, or maintaining the land in good agricultural and environmental condition. 4.2 National regulatory, inspection and control systems A number of laws and regulations currently govern substances and mixtures containing ammonium nitrate of different qualities, based on different purposes and considerations. The rules are fragmented and somewhat difficult to grasp. There is no comprehensive regulation that 19

22 addresses the issue of substances and mixtures containing 16 % N in relation to AN going astray or falling into the wrong hands, and thus used in unwanted intentional acts Protection of health and the environment the REACH Regulation Regulation No. 516 of 30 May 2008 relating to the registration, evaluation, authorisation and restriction of chemicals (the REACH Regulation) implements the EU Regulation in this area. REACH stands for Registration, Evaluation, Authorisation and Restriction of Chemicals and is the EU s chemicals regulations. It aims to provide a high level of protection of health and the environment, and strengthen the competitiveness and innovation of companies. In addition to REACH, the EU has a number of other directives and regulations that restrict the use of certain substances in specific product groups. REACH makes information on the harmful and ecotoxic properties of chemical substances more accessible to the authorities and the public, while companies have a greater independent responsibility for documentation, evaluation and appropriate handling of chemicals. Any person who manufactures, produces or imports chemicals shall within certain criteria ensure the registration of the chemical with the European Chemicals Agency (ECHA). Through REACH, it is possible to prohibit or restrict the manufacture, import, use and sale of hazardous substances throughout the European Economic Area. Such prohibitions or restrictions may be introduced in REACH, if the substance represents an unacceptable risk to humans or the environment, and it is necessary to restrict it at Community level. The European Commission and Member States can impose restrictions under REACH due to any property of the substance. Through Commission Regulation (EC) No 552/2009, implemented in the REACH Regulation, restrictions will be introduced on substances or mixtures containing 16 % N in relation to AN. This is a follow-up of the EU s action plan against terrorism, and to limit access to substances that can be used to produce bombs. The restriction on ammonium nitrate also means that it is not permissible to place on the market substances or mixtures containing more than 28 % by weight of nitrogen in relation to ammonium nitrate, for use as a solid fertiliser, straight or compound, if the fertiliser does not pass the detonation test as described in Regulation (EC) No 2003/2003, implemented in the Norwegian regulations for EC fertilisers. This restriction entails a prohibition against the placing on the market of a substance or mixture which contains 16 % N in relation to AN, except for supply to: Downstream users and distributors, including natural or legal persons licensed or authorised in accordance with Council Directive 93/15/EEC on the harmonisation of the provisions relating to the placing on the market and supervision of explosives for civil use, which is implemented in the regulations relating to the handling of explosive substances. Farmers for use in agricultural activities, either full time or part time and not necessarily related to the size of the land area. Natural or legal persons engaged in professional activities in horticulture, plant growing in greenhouses, maintenance of parks, gardens or sports pitches, forestry or similar activities. Regulatory authorities for the REACH Regulation: Klif is the competent authority for REACH in Norway, while Klif, the Norwegian Labour Inspection Authority, DSB and the Petroleum Safety Authority Norway (PSA) oversee that the REACH Regulation is followed within their respective areas of authority. Klif will be the official Norwegian representative to ECHA. Klif may receive inquiries from ECHA on registrations submitted by Norwegian registrants. If the request concerns hazardous physical-chemical properties, Klif will forward the request to DSB for processing. The physical-chemical area means solid, liquid and gaseous substances with mainly explosive, flammable or oxidizing properties. It is therefore the DSB that will be the regulatory authority under the REACH Regulation and restrictions relating to substances and mixtures containing 16 % N in relation to AN Requirements relating to classification, labelling and packaging of substances and mixtures All substances and mixtures which are classified as hazardous under Regulation No of 16 July 2002 on the classification, labelling, etc., of dangerous chemicals (the Labelling Regulation), shall have a label that communicates the relevant risk to the user. The substances must also be packaged in an appropriate manner. The rules on classification, labelling and packaging include both substances and mixtures sold to consumers and for professional use. The chemicals must be labelled as soon as practically possible and no later than when sales are initiated in Norway. All labelling shall be in Norwegian. 20

23 The EU s new Regulation on the classification, labelling and packaging of substances and mixtures (CLP for short) came into force in the EU on 20 January CLP has just recently been implemented in Norwegian legislation. For substances, the CLP Regulation must be applied immediately. For mixtures, the CLP Regulation, after entry into force in Norway, will apply alongside the current Labelling Regulation until 1 June After this date the Labelling Regulation will be repealed. The new CLP Regulation is based on the United Nations Globally Harmonised System of Classification and Labelling of Chemicals (GHS). For physical-chemical properties, such as explosive, flammable or oxidizing properties, classification criteria and test methods in GHS have been harmonised with those established for the transport of dangerous goods. The classification of the chemical determines the hazard pictograms and risk and safety phrases that must be on the label. Both the Labelling Regulation and the CLP Regulation have substance lists, where a number of substances and mixtures are listed with a classification and associated hazard pictogram, risk and safety phrases. The substance lists, however, are primarily applicable to properties harmful to health and the environment. For physical-chemical properties, these substance lists are very deficient. The provisions state that determination of the hazard classification of the substance or mixture is the result of testing (using test methods) and assessment against the classification criteria. The application of the test method for oxidizing solids, including ammonium nitrate, is somewhat different under the Labelling Regulation and under CLP (GHS). CLP (GHS) uses an improved test method. In both test methods, however, there is a risk that certain types of ammonium nitrate will not be classified as oxidizers, and thus not covered by the regulations. This is because it has proved difficult to create a test method that will suit all the different substances that have oxidizing properties. In transport and CLP (GHS), this problem has been solved in that experience is to be emphasised more strongly than the test result. This means that the ammonium nitrate and certain ammonium nitrate mixtures are classified as oxidizers. These have a special UN no. in the transport of dangerous goods and shall be labelled with a hazard label (symbol) for oxidizer. Since the criteria in the Labelling Regulation are somewhat different from CLP (GHS), one will find in some cases that such ammonium nitrate and ammonium nitrate mixtures are not classified as oxidizers under these regulations. There will be common transport and use packaging for the vast majority of substances and mixtures sold in Norway that contain ammonium nitrate. This means that the packaging for all substances and mixtures containing ammonium nitrate regarded as oxidizers are labelled with oxidizer hazard labels. Regulatory authorities for CLP: Competent authorities under the CLP Regulation are DSB, Klif and the Labour Inspection Authority. DSB has a particular responsibility in the physical-chemical area Protecting the safety of surroundings Fire and Explosion Prevention Act DSB administers Act No. 20 of 14 June 2002 relating to the Prevention of Fire, Explosion and Accidents involving Hazardous Substances and the Fire Services Duties connected with Rescue Operations (Fire and Explosion Prevention Act) with associated regulations. The Fire and Explosion Prevention Act is the primary law with regard to preventing fires and explosions, and regulates, among other things, preventive and emergency aspects of handling a variety of hazardous substances and transport of dangerous goods by road and rail. Handling means any contact with hazardous substances such as production, storage, processing, transport, loading, unloading, acquisition, trade, import, export, transfer, use and destruction. Through an amendment in 2009, the scope of the Act was expanded and clarified to include protecting hazardous substances to avoid the use of the substances in unwanted intentional acts. The Act was also expanded to include additional hazardous substances. The Fire and Explosion Prevention Act currently regulates the handling of the four substance categories flammable, explosive, pressurised or reactive substances. Common to all these substances is that either alone or in combination with other substances they can cause fires or explosions, constitute a risk because they are under pressure, or represent a risk of emission of hazardous gases, vapours, dust or mist. Substances that can be used for the manufacture of explosives and bombs for unwanted intentional acts are also covered by the statutory definition of hazardous substances. In addition to the four substance categories, the Act includes transport by road and rail of all substances that fall under the definition of dangerous goods. What constitutes dangerous 21

24 goods is determined by the current UN recommendations, see Chapter Ammonium nitrate may be covered by the statutory definition of explosive, flammable and reactive substances. The legislative history of the Act points out that the term explosive substance, in addition to common explosives such as dynamite, ammunition, detonators, also include other substances with explosive properties, such as organic peroxides and certain forms of ammonium nitrate. In 2009, the Act was as mentioned amended to also include reactive substances, inter alia to regulate socalled precursors that can be used for the production of homemade bombs. Under normal handling, ammonium nitrate (more than 28 % N in relation to AN) is classified as an oxidizer, and thus covered by the definition of reactive substances. An oxidizer is a substance which is in itself is not necessarily combustible, but can cause or contribute to the combustion of other substances. Although AN in its pure state does not have explosive properties, its oxidizing properties, along with the substance s self-reactive property, renders AN suitable for the production of explosives. In its pure state AN has explosive properties, but is so stable that it is not classified as explosive. The purpose of the Fire and Explosion Prevention Act is to protect life, health, the environment and property against accidents involving these hazardous substances, including preventing unwanted intentional acts. In other words, the Act shall help ensure the safety of the surroundings and third parties during the handling of hazardous substances. The Fire and Explosion Prevention Act therefore gives DSB the authority to regulate the handling of ammonium nitrate so it is handled in a safe manner in relation to third parties and the surroundings, also based on the consideration that the substance must not go astray or end up in the wrong hands. This Act is therefore to be regarded as the primary law for regulating safety and security relating to handling ammonium nitrate. The Act is a function-based framework and must be elaborated through regulations. Regulatory authorities for the Fire and Explosion Prevention Act: DSB is the entity at the central level that oversees compliance with the provisions of the Fire and Explosion Prevention Act. The municipality is the regulatory authority in the areas where this is stated directly by the Act or by regulations issued pursuant thereto. DSB may, upon request, assist the municipality with implementation of its mandatory inspection duties. DSB can also permit other public or private experts to conduct inspection activities on its behalf. Who specifically supervises and inspects the different handling of the hazardous substances is stated in detail in the various regulations issued pursuant to the Fire and Explosion Prevention Act Safe handling of flammable, reactive and pressurised substances the Hazardous Substances Regulation The purpose of Regulation No. 602 of 8 June 2009 relating to handling of flammable, reactive and pressurised substances as well as equipment and systems used in such handling (the Hazardous Substances Regulation), is to protect third parties and the surroundings from mishaps and accidents involving hazardous substances. The regulation covers anyone who handles hazardous substances, as well as anyone who owns or uses equipment and facilities used for handling hazardous substances. The regulations are a function-based framework. It has therefore been necessary to prepare a series of guidelines that gives guidance how to achieve the minimum level of safety provided by the regulation. To have a better overview of the risks of handling hazardous substances, anyone who stores hazardous substances exceeding certain quantities in a facility or transports hazardous substances by pipeline, is required to send an electronic notification to DSB via Altinn. The information is stored in DSB s SamBas database, and shall, among other things, form the basis for risk-based inspection and information on developments in various industries. The notification system partially replaces the previous requirement for permits in the field. Annex 1 of the regulation lays down criteria for the classification of substances, while Annex 2 establishes the quantities of hazardous substances that trigger the notification requirement. Ammonium nitrate is classified by the UN as dangerous goods in UN 1942 or ammonium nitrate fertiliser classified in UN 2067, is an oxidizer according to Annex 1. Annex 2 states that whoever handles 6 tonnes or more of this type of ammonium nitrate shall notify DSB. Consent from DSB is required for companies that store such large quantities of hazardous substances that they are covered by the Major Accident Regulation. The fundamental principle of the regulation is that enterprises shall identify risks and problems with handling 22

25 hazardous substances and, on this basis, assess the risks and what measures must be implemented to reduce this risk. Although DSB primarily regulates the legal handling of hazardous substances, the regulation emphasises that the evaluation shall also include the risk of unwanted intentional acts. The regulation lists a minimum of safety precautions relating to technical building and construction measures that must be implemented. It states that safeguards must also be implemented to prevent unauthorised access to hazardous substances, without specifying the measures. Products containing AN, but which are not classified as dangerous goods containing 16 % N in relation to AN, would still be covered by the regulation as they fall under the regulation s definition of reactive substances. The guide to the regulation specifies that there may be substances that are covered by the regulation and its definition of hazardous substances, even if they do not meet the criteria for classification in Annex 1. Regulatory authorities for Hazardous Substances Regulation: The municipality is the primary regulatory uthority under the regulation. In addition, DSB, alone or in cooperation with local authorities, carries out surveillance and inspection of activities that represent a significant risk (in practice the enterprises subject to consent) and where DSB considers it necessary to have an overview of risks associated with the handling of hazardous substances Safe handling of explosive substances Explosives Regulation Regulation No. 922 of 26 June 2002 relating to the handling of explosive substances (the Explosives Regulation), regulates the safety of all handling of explosive substances, including the concern that such substances must not go astray. The definition of explosive substances as it appears in the Fire and Explosion Prevention Act includes far more substances than those falling under the definitions of explosives in the Explosives Regulation. With the exception of general duty of care provisions and requirements for qualifications and suitability, the Explosives Regulation only deals with what falls under the definition of explosive goods. Explosive goods can be divided into the following main types: Explosives Gunpowder Detonators Ammunition Pyrotechnic supplies Ammonium nitrate that is not contaminated or does not contain additives, is not defined as explosive. In the legislative history of the Fire and Explosion Prevention Act, ammonium nitrate was referred to as an explosive substance. After the Act was amended in 2009, when the term reactive substance was introduced, it is now more natural that ammonium nitrate is defined as a reactive substance. The Explosives Regulation mentions ammonium nitrate specifically in Section 7-3 concerning safety distances from explosives magazines to their surroundings. It states that if ammonium nitrate is to be stored with other explosives, the same safety distances as for ordinary explosives are to be used. It also states that the quantity of ammonium nitrate shall be divided in two and added to the remaining amount of explosives when the safety distances are to be determined. Handling of explosives is strictly regulated by licence requirements throughout the chain from production to destruction. Anyone who can legally handle explosives in Norway is registered in DSB s SamBas register. Those who want to produce explosives, including those based on ammonium nitrate, must have an authorisation from DSB. The Explosives Regulation has relatively detailed requirements for the safe handling of explosives. In addition, a series of guidelines have been prepared which gives guidance on how enterprises can meet the minimum level of safety provided by the regulation. All accidents associated with the use of explosives, as well as burglary or attempted burglary in explosives magazines, must be reported to DSB and the police. The Explosives Regulation has been tightened several times since 2004 to ensure that explosives will not go astray or end up in the wrong hands. The changes have been primarily motivated by national needs, but they have largely been consistent with the expectations of the EU action plan against terrorism. Work is now under way in DSB to amend the Explosives Regulation with a view to regulating the handling of bulk explosives in a more comprehensive manner, see Chapter 3.2. Regulatory authorities for Explosives Regulation: DSB is the regulatory authority under the Explosives Regulation. The municipality is the regulatory authority in the areas where they issue licences, which are trading pyrotechnic supplies and storage 23