HSNO information sheet 7: How does the ERMA make its decisions?
Independent Authority
The Hazardous Substances and New Organisms (HSNO) Act, passed in June 1996, creates a new legislative framework for controlling hazardous substances and new or genetically modified organisms. The new organisms parts of the Act came into force in July 1998, but the hazardous substances parts require the completion of a comprehensive “toolbox” of regulations that give effect to the Act.
The Environmental Risk Management Authority (ERMA) is an independent regulatory authority that has responsibility for assessing the risks posed by the use of different substances and organisms.
The Authority is responsible for assessing all applications to:
- import or manufacture a hazardous substance for the first time in New Zealand;
- import or release new organisms; and
- develop or release genetically modified organisms.
The Assessment Process
The Authority must follow a specific procedure to assess each application. This procedure is defined in the Act.
The Authority must also use a clearly defined methodology when deciding on an application, and its use must be consistent for every assessment. Members of the public were involved in developing the definition of the methodology, through a public consultation process.
Under section 5 of the Act, the Authority must consider these principles with every application:
- safeguarding the life supporting capacity of air, water and ecosystems; and
- maintaining and enhancing the capacity of people and communities to provide for their own economic, social and cultural well being, and for the reasonable foreseeable needs of future generations.
The Authority must also consider these matters in so far as they relate to an application:
- the sustainability of all flora and fauna;
- the intrinsic value of ecosystems;
- public health;
- the relationship of Māori and their culture and traditions with their ancestral lands, water, sites, waahi tapu, valued flora and fauna and other taonga;
- economic and related values; and
- New Zealand’s international obligations.
Notifying applications
When the Authority receives an application it is obliged to inform the Minister for the Environment and any government department or crown entity that is likely to express an interest in the application. For applications involving new organisms, the Authority also informs the Department of Conservation and any regional council that is likely to express an interest.
Most applications are automatically publicly notified (section 53). Applications relating to hazardous substances and new organisms in containment generally do not require public notification, nor do imports of low risk organisms, or trans-shipment applications.
The public notice invites people to make submissions on the application. All submissions must be received by the date specified in the public notice, and this date is no longer than 30 working days after the public notification was advertised.
A hearing can be held to consider the application and any submissions made. The Authority, the applicant or any submitter can ask for a hearing. Hearings will only be held if someone asks for one (section 60). All hearings held by the Authority are open to the public. When holding hearings, the Authority has some of the powers of a Commission of Inquiry, including the power to summon witnesses (section 61). The Authority then considers the application and any submissions made. It does this using the methodology, established under section 9 of the Act.
Reassessment
Substances and new organisms can be reassessed. Reassessments can cover any new organisms in containment and hazardous substances, but cannot be made for organisms that have already been released.
Grounds for reassessment are given in section 62. Matters that must be considered in deciding whether grounds exist are:
- new information about the substance or organism;
- any other substance available with similar or improved benefits and reduced adverse effects; or
- any significant change in the amount of a substance produced, or in the purpose it is used for.
Anyone can request a reassessment. A reassessment is a two-step process. In the first step, information is supplied to the Authority and it decides whether or not there are sufficient grounds for a reassessment to occur (section 62). In the second step, if the decision is that there are grounds to justify a reassessment, the actual reassessment is carried out following normal assessment procedures (section 63). The two steps can occur consecutively or the second step can be subsequent to the first.
The Authority can suspend use of a substance while it is being reassessed (section 64). If the reassessment requires that a substance or organism is withdrawn, then the Authority can order the disposal of hazardous substances or the destruction of organisms, at the owners’ expense (section 66).
Rapid assessments
Rapid assessments provide for release of low risk imported organisms (section 35), and for the development of certain low risk genetically modified organisms in containment (section 42).
The Act allows the Authority to delegate assessment decisions in these cases.
In the case of the release of imported organisms, Ministry of Agriculture and Forestry border control staff can be delegated the ability to approve low-risk introductions, however this has not occurred to date. These may include organisms that could not survive in New Zealand in the wild, such as ornamental tropical fish. With genetically modified organisms developed in containment, approval decisions may be delegated to approved biological safety committees attached to research institutions. The definition of “low risk” in this case is set out in regulations made under section 41.
There is currently no provision in the Act for rapid assessment of “low risk” hazardous substances. This may change if the HSNO Act Amendment Bill no. 2, soon to be considered by the Local Government and Environment Select Committee, is successful (see Information Sheet no.11 in this series).
Further information
For further information access the ERMA New Zealand website, or contact:
Dr S.R. Vaughan
Project Manager
Tel. 04 917-7404
Hazardous Substances and New Organisms Reform
Ministry for the Environment
PO Box 10362
Wellington
Fax 04 917-7523
