Report of the second meeting of the Industry Review Group advising on the HSNO Act implementation

Held at BASF New Zealand Ltd38 Mahunga DrAuckland 14 -15 July 1999

Introduction

At its second meeting, the Review Group considered reports on the following aspects of the HSNO Act implementation for hazardous substances:

  • the further detail of the specifications for regulations under s74, s.75 and s.76 of the Act requested by the group at its first meeting

  • the incorporation of reference to the current versions of international documents in the technical detail of regulations

  • initial drafts of the guidance material to assist applicants in determining whether or not a given substance crosses a threshold as specified in regulations under s.74(b)

  • proposed amendments to Act designed to streamline the Act’s operation

  • guidance material intended to clarify how much information will be required for a given type of application

The group used this material to consider whether to recommend that either:

  • the Act proceed without qualification; or

  • the Act proceed through a ‘staged’ start-up process as foreshadowed in its first report.

Regulations specifications

The group reviewed a detailed report from the Ministry for the Environment addressing over 50 items raised by the group at its first meeting in late March. The group agreed that this report did address the issues raised and expressed overall satisfaction with the work presented. In the course of reviewing the detail in the report, the group requested a series of minor changes to some of the responses proposed by the Ministry. The changes were noted at the meeting, and will be included in the final regulations specifications presented for policy approval and used to draft the regulations. Overall, the group considered that the objective set at its first meeting of increasing the certainty of the regulations toolbox, so limiting the need for the ERMA to set special conditions for most approvals had been met. The group understands that some elements of the overall regulatory package were not presented to it because of a deliberate decision to place these elements on a slower track. These elements are:

  • the regulation of compressed gases

  • the regulation of large containers including, bulk tank vehicles (road and rail) and fixed stationary containers.

In both cases the nature of the regulation and the items regulated makes it possible to do this without significant effect on the overall HSNO start-up. The group considered that one item from the Ministry’s report, in relation to controlling exposure of storage to flammables handling zones, would be better dealt with in relation to large containers. The Ministry agreed to this.

The group expressed particular concern at its first meeting that more certainty should be provided with respect to setting exposure limits for toxic and ecotoxic effects. In reviewing the Ministry’s responses in these areas, the group expressed general satisfaction at the response provided to it. It noted that the Ministry had used advice from other Government agencies with expertise in this area (e.g. MAF and Health) but requested that written comments on these matters from the senior technical staff in these agencies be circulated to the group. This reflects the highly judgmental nature of this area.

The Ministry has undertaken to do this following the meeting. The group also discussed at some length the detailed proposals for test certification for sites storing and handling substances with ecotoxic and toxic properties. These proposals were the result of a previous request by the group and had not been considered by other reviewers.

Notwithstanding this earlier request for these areas to be included, considerable concern was expressed that the trigger levels for certification would capture many facilities not previously subject to such auditing requirements. The group accordingly recommended that these areas of test certification be re-examined with a view to:

  • increasing the trigger quantities above which test certification or third party audit of a location would be required

  • examining the net gain in safety management from such auditing.

The group noted that these test certification proposals are new regulatory proposals and had not been referred to all affected parties for comment.

References to international documents in regulation

The Ministry reported that as a matter of legal principle references to international documents in regulation are specific to a given edition of that document. This is done to preserve New Zealand’s right to review any subsequent variation of that document before accepting it. At present, New Zealand’s only general exception to this is the reference to the most recent edition of Australian and New Zealand Standards.

This is considered permissible because the process of standards formation is covered by New Zealand law. This has generally meant that New Zealand regulation had fallen out of step with advances in international practice.The group viewed the possibility of this happening for the HSNO regulations with considerable concern, especially given the international nature of the trade in chemicals.

The HSNO regulations will make very substantial reference to the international documents that form part of the process of the development of the globally harmonised system (GHS) for hazard classification (and ultimately management). This is because the HSNO Act requires the consideration and, as a general rule, adoption of best international practice (s.141). The use of such references is very strongly supported by the group.

The group noted that New Zealand is either a full member or has observer status with an offer of full membership in all of the bodies that produce these international documents. It also noted that:

  • changes in the documents are advised with long lead times allowing considerable margin for revisiting any contentious matters

  • the decision making in such bodies is generally by consensus

  • some current New Zealand regulations do make reference to the most recent edition of international standards (e.g. the Petroleum Products Specification Regulations 1998)

Accordingly, the group strongly recommends that reference to this type of international document in the HSNO regulations be to the most recent edition of that document. This was considered particularly important for the documents produced by the present UN Committee of Experts on the Transport of Dangerous Goods, as this body is likely to transform into a body to maintain the GHS.

Guidance material for determining thresholds

The group reviewed preliminary drafts of documents setting out methods for:

  • estimating the toxic and ecotoxic properties of substances in the absence of experimental data

  • calculating the toxic and ecotoxic properties of mixtures of such substances

The group had requested this material in response to concerns that New Zealand’s adoption of the GHS thresholds could not be made to work in practice because the necessary information was not available. The group, while noting that the material presented was not complete, considered that the direction taken by this material is the correct one and offered suggestions for further development of it. The group also affirmed that it wished to see this material, when complete, given code of practice status under the Act.

Amendments to the Act

The group discussed the current package of amendments proposed to cement in the procedures for increasing the efficiency of operating the Act. As part of this discussion, a group member who had attended a recent forum on the amendments explained other community reaction to the proposals. The group acknowledged that there were other views about amending the Act, particularly in respect of public access to information and generally around GMO developments. However, it considered that the following amendments with respect to hazardous substances management are of particular importance to the long term viability of the Act:

  • allowing developmental and evaluation activities with hazardous substances to take place without formal approval provided these are fully contained

  • rapid assessment - particularly for substances very similar to those currently approved

  • clarifying that an approval is for a substance not a person

Guidance material on information requirements

The group discussed an early draft of a document intended to set out the level and detail of information expected for particular classes of application for approval of hazardous substances. This document extends some of the principles in the methodology. It does this by spelling out that, for example, lesser levels of information detail will be acceptable where the substance is low hazard, similar to an existing substance, or will be subject to controls which tightly contain it and do not allow wide distribution of the substance in the environment. The group agreed with the material presented and supports the further development of this guidance material. The group was strongly of the view that this document should, when complete, be given as much ‘standing’ as possible and so should be an Authority approved protocol under the methodology.

Recommendations for start-up of the HSNO Act for hazardous substances

The group generally considered that substantial progress had been made with the issues it reported on after its first meeting. In particular it considers that the regulations specifications documents will now be sufficient to allow their general use with only minimal recourse to s.77. It also expressed satisfaction with the development of guidance material and the content of proposals for amendment. The group also reviewed and refined its recommendations with respect to incorporation of international documents in the regulations. However, the group considered that there was still a significant degree of uncertainty about whether there was sufficient information available for determining whether a substance would cross the ecotoxicity threshold. After considering administrative procedures to deal with this, the group expressed a preference for a more defined regulatory approach. In doing so the group acknowledged that administrative procedures did need to be developed but preferred to allow more time for this to occur.

Recommendations

The group recommends that, following from its first report.

  1. The HSNO Act should be commenced for hazardous substances as soon as reasonably practicable considering the mechanics of law drafting etc.

  2. The Act’s commencement should be ‘staged’ in the following way:

  1. The full set of thresholds is put in place.

  2. Information to determine whether a substance crosses an ecotoxic threshold should be required for any substances where a declared use of the substance (as required under s.28 of the Act) would result in the substance being widespread in the environment or is to cause mortality, inhibited growth or inhibited reproduction of an organism - i.e. the substance has a use as a pesticide.

  3. Information should not be required on ecotoxic effects of any other substance for a period of up to 3 years from start-up, further extensible by order in council for an additional 2 years. It is suggested that whether or not the extension is required should be decided on the basis of our trading partners’ progress in adopting the GHS.

  4. In the event that this (ecotoxic) information is not provided, the substance should be controlled to prevent that substance being exposed to living organisms in the environment (e.g. very low exposure limit would be set and destruction of the substance before disposal would be required). In the event that information on ecotoxic effects in one or environmental compartments is provided, this provision would not apply for those compartments.

  5. Applicants would be required to provide ecotoxic data for substances where this has been required by the US or European Union for those substances.

Future activities of the Group

At the conclusion of the meeting, ERMA and MfE representatives pointed out that the group had acquired considerable expertise and knowledge around the HSNO implementation process. Applying such expertise to commentary on other material related to the HSNO Act implementation could be beneficial to both Government and industry. The group agreed that this should be considered but noted that member’s time was limited. ERMA New Zealand will consider opportunities to make best use of the group’s expertise in other implementation related work.

 

Reference Enforcement Compliance Legislation Faq's Search Sitemap NZCIC