The proposed European directive to establish minimum safety requirements in trans European road network tunnels signals an end to the arbitrary selection of minimum tunnel safety performance criteria.
Even if the draft directive were never adopted, the articulation of the minimum standards by the Commission has created clear evidence of what is the minimum acceptable standard of safety for commuters in the developed world.
Discover B2B Marketing That Performs
Combine business intelligence and editorial excellence to reach engaged professionals across 36 leading media platforms.
In the past, debates have raged in boardrooms, amongst designers and at international conferences on what are the minimum safety standards for road tunnels.
The directive’s genesis is the unprecedented series of European tunnel catastrophes of recent years. Its legacy is likely to be recognition by legal systems around the world of the draft minimum standards as relevant evidence in determining the minimum standard demanded for safety in tunnels.
What standard?
From the American NFPA recommendations to the guidelines produced by Germany, France, Switzerland, Austria etc. or even the recommendations of PIARC, there is no shortage of documentary evidence of what an acceptable minimum safety standard may be based upon. However for EU countries any debate about what may constitute their minimum standard would be based upon the safety directive if adopted by the Council and European Parliament and transformed by the member states. Following an adoption of a directive the member states are bound, even before transformation, to have regard of the new standards.
US Tariffs are shifting - will you react or anticipate?
Don’t let policy changes catch you off guard. Stay proactive with real-time data and expert analysis.
By GlobalDataDebate about what is or is not required for a ‘safe’ tunnel would, as a matter of law, be resolved for these trans alpine tunnels and ‘standards shopping’ which has become a common feature of new tunnel design whereby components from defacto standards such as PIARC, NFPA etc. will be less defensible as a practice in defining the appropriate safety standard for a tunnel.
Not only would the introduction of the European directive on minimum tunnels safety standards create an indisputable legal minimum safety standard for trans European road tunnels, it would also be highly persuasive evidence of the minimum safety standard expected in other tunnels in Europe as well as in other countries around the world.
Its weight as evidence of international safety “minimum” practice would arise from its general application and acceptance in EU member states coupled with its creation by multi disciplinary experts investigating current learning on recent disasters in road tunnels.
The fact that the experts whom have developed this set of minimum standards come from many countries would further support its use as evidence as a minimum standard and not as evidence of world’s best practice.
Is someone responsible?
These new standards are coupled with mandatory requirements for each tunnel, to identify persons who are responsible for compliance with the new safety directive.
These new measures will create accountability in safety and are at the heart of the proposed directive on trans European road network tunnels.
It is the introduction of a requirement that identified individuals are responsible for compliance in each tunnel that is likely to create the most significant improvements in safety because, with this requirement, the declaration removes the most common reason for safety initiatives being overlooked – that there is no named person responsible and accordingly no identifiable person to assume responsibility for safety.
Pursuant to Article 4, paragraph 1, of the proposed directive, member states will be required to designate an Administrative Authority who will have general responsibility for all aspects of the safety of a tunnel.
Importantly, the Administrative Authority’s would have to appoint a Tunnel Manager (Article 6) and Safety Officer (Article 7) who will have the responsibility of achieving compliance with the directive for operational tunnels. This may involve the refurbishment of tunnels which do not meet the safety requirements of the directive.
The declaration also anticipates that some tunnels may not be in the control of the States and provides an obligation upon the member state to either compel the tunnel operator to upgrade the tunnel or for the member state to upgrade it itself.
These apparently simple requirements will create complex disputes between tunnel operators, owners and the State, as in many existing contracts there is no simple mechanism for allowing such works and/or changes in procedures to be implemented by the member state.
This trend to individual accountability for tunnel safety should also be seen in the context of increasing pressure in the common law world to implement corporate manslaughter laws to address perceived deficiencies in the legal mechanisms for prosecuting organisations which engage in criminal conduct which causes death.
It is acknowledged that each tunnel is different and that the adoption of standards – any standards – is no substitute for a properly considered risk analysis for a project. However with increased financial pressures coupled with the escalation in demand for road tunnels, the pressure to reduce costs and often safety is real notwithstanding the high standards that will be demanded should this directive be adopted.
How would the proposed directive apply?
Pursuant to Article 1, paragraph 2, of the proposed directive, the minimum standards will be applicable to all tunnels, “whether they are in operation, under construction or at design stage”.
It is likely that many tunnels whether they are in use, in the design phase or currently under construction, may not currently comply with the proposed provisions of Annex 1.
For example under Annex 1, clause 1.9, unidirectional tunnels with daily congestion, require the ventilation system specified under clause 1.4.1 being the ventilation for bidirectional tunnels. Bidirectional tunnels require the following minimum measures to be taken:
Longitudinal ventilation can only be used in tunnels with bidirectional traffic where ordinary traffic conditions allow vehicles to drive out of the tunnel in the direction of the smoke (Annex 1, paragraph 1.4.2).
It is specifically directed that ‘where it is not possible to drive out of the tunnel because of congestion in twin tube tunnels with unidirectional traffic, transverse and/or semi-transverse ventilation shall be used (Annex 1, paragraph 1.4.3).
Furthermore if computations show that the smoke extension and spreading velocity are such that the safety of road users is insufficiently protected by the ventilation systems, noted further measures must be undertaken such as parallel safety galleries with cross connections for self rescue at intervals of less than 500m.
Compliance with these new minimum standards may require substantial financial and technical investment often with the consequential loss of function of the tunnel during upgrading or delay in project completion for new projects. The explanatory memorandum to the draft directive confirms that the normal practice that Member States bear the cost of implementing the directive applies to this directive.
However the rationale for these technical disadvantages are outweighed by the benefits of the imposition the minimum standards will provide to the travelling public over the trans European network.
How does this effect tunnels in operation?
Currently operating tunnels would generally have to fulfil the safety requirements as proposed in Annex 1.
However in relation to these tunnels the directive at Article 3, paragraph 2, notes that:
“where certain structural requirements laid down in Annex 1 can only be satisfied through technical solutions which are substantially more expensive than for equivalent new tunnels, Member States may accept the implementation of risk reduction measures as an alternative to those requirements. The efficiency of these measures shall be demonstrated through a risk analysis in conformity with the provisions of Article 13.” (Article 13 sets out a methodology for conducting that risk assessment).
Under the proposed directive Article 12, paragraph 1, Member States would be required to create Inspection Bodies which will enforce the national laws created to entrench the requirements of the directive. Such inspections must be completed within five years of the directive being adopted.
Conclusions
The adoption of a declaration on minimum standards for trans European road tunnels will set a minimum legal standard of safety for trans European road tunnels.
Such a minimum standard will also be persuasive evidence of the minimum safety standard required in other tunnels around the world.
Although the directive is touted as representing the optimal level of safety in road tunnels, it does not – and courts are unlikely to accept that it does.
There are more onerous safety provisions within some Member States and other countries than those found in the proposed tunnel safety guidelines.
The wording of the final directive should endeavour to prohibit Member States with higher safety standards relying on the declaration to justify reductions in the safety of their tunnels.
If adopted the directive will provide a degree of certainty as to the minimum standards to be applied in Europe. Such certainty should be welcomed given the current range of practices, standards and procedures.
Because the declaration anticipates the use of innovative safety equipment and procedures the disbenefits of standardisation can be managed and will be outweighed by the benefits clear articulation of minimum safety requirements brings.
