Module Two: The HFSP – History and legislative context
What, why and how|The HFSP - History|Legislative context|How does the RMA relate to the HSNO Act?|How does the HFSP fit in with the purposes of the RMA and the HSNO Act?
What, why and how
What
- overview of the development of the HFSP and its implementation
- recapping of the legislative context
- how the HFSP meets the requirements of both the RMA and the HSNO Act
Why
- to understand why and how the HFSP came about
- to understand that the HFSP meets the minimum performance requirements of the HSNO Act
How
- presentation
- exercise
- group discussion and report in
Minds
are like parachutes; they only function when they are open
Sir James Dewar
The HFSP - History
What the HFSP is
The “HFSP” stands for the “Hazardous Facilities Screening Procedure”.
The HFSP is a land use planning tool to assess whether a hazardous facility (that is, an activity proposing to use, store, transport or dispose of hazardous substances) requires a resource consent under the RMA, and a more detailed assessment of environmental effects and risks.
Specifically, the HFSP is used to determine maximum permissible quantities of hazardous substances stored or used on a site in a particular land use zone, before a resource consent is required.
The origins and development of the HFSP
The HFSP is based on an earlier method developed by Auckland City. Because of some inherent flaws in this method, Auckland City, the Auckland Regional Council, and Environment Waikato initiated a review in 1994.
36 New Zealand regional and territorial authorities jointly funded the review and the development of the HFSP. A working party comprising representatives from regional and territorial authorities, local and overseas technical experts in the field and consultants with hazardous substance expertise were responsible for carrying out the review.
Over 40 territorial authorities have incorporated or are in the process of incorporating the HFSP into their district plans.
The original HFSP document (Land Use Planning for Hazardous Facilities, 1995 or the “HFSP Red Book”) was prepared jointly by the Auckland Regional Council, Auckland City and Environment Waikato, in association with the Ministry for the Environment.
In 1999, MfE funded a review of the HFSP. This review took into account any changes arising from the introduction of the Hazardous Substances and New Organisms (HSNO) Act 1996. It also considered and the comments made by practitioners using the HFSP over the preceding 3 years, and set out to simplify the use of the HFSP.
How
to find out more
The revised document “Land Use Planning Guide for Hazardous Facilities – A Resource for Local Authorities and Hazardous Facility Operations” was published as an interim document in 1999, and has now been finalised. This is commonly known as the “Red Book”. This new document effectively replaces the 1995 version.
back to topLegislative context
The Resource Management Act 1991 (RMA)
The purpose of the Act is:
“To promote the sustainable management of natural and physical resources”
Sustainable management
“Sustainable management” means managing the use, development and protection of natural and physical resources to enable people and communities to provide for their social, economic, and cultural well-being and for their safety and health, while:
- sustaining the potential of natural and physical resources to meet the reasonably foreseeable needs of future generations
- safeguarding the life-supporting capacity of air, water soil and ecosystems
- avoiding, remedying or mitigating any adverse effects of activities on the environment.
The environment
The environment includes:
- ecosystems and their constituent parts, including people and communities
- natural and physical resources (including structures)
- amenity values
- social, economic, aesthetic and cultural conditions
Environmental effects
Environmental effects covered by the Act include:
- positive or adverse effects
- temporary or permanent effects
- cumulative effects
- potential effects of high probability
- potential effects of low probability but high potential impact
Responsibilities for hazardous substances
Overall, the RMA’s focus, in terms of hazardous substances, is on controlling the location and site-specific effects of hazardous facilities.
Under Sections 30 and 31 of the RMA, local authorities have a shared responsibility for the management of activities involving the use or storage of hazardous substances hazardous substances.
Regional Councils have the function of:
“The control of the use of land for the purpose of the prevention or mitigation of any adverse effects of the storage, use, disposal or transportation of hazardous substances”
Territorial authorities have been vested with:
“The control of any actual or potential effects of the use, development or protection of land, including for the purpose of the prevention and mitigation of any adverse effects of the storage, use, disposal or transportation of hazardous substances.”
For the purpose of clarifying the primary responsibility for the management of hazardous substances, section 62 of the RMA requires Regional Councils to specify in their respective regional policy statements which local authority shall have responsibility, within its own area, for developing objectives, policies and rules relating to the control of the use of land for the prevention or mitigation of the of any adverse effects of the storage, use, disposal or transportation of hazardous substances. If no responsibility is specified TA’s assume primary responsibility under S62(1)(ha)(iv).
It is noted that the proposed RMA Amendment Bill 1999 may change the policy role of regional councils in relation to land use matters.
With the exception of the disposal of hazardous substances, Territorial
authorities have largely been charged with the responsibility for the
land use control of hazardous facilities and the assessment of their
site-specific environmental effects and risks, under the various Regional
Policy Statements that have been compiled by Regional Councils.
The Hazardous Substances and New Organisms Act 1996 (HSNO Act)
The Hazardous Substances and New Organism (HSNO) Act was enacted on 10 June 1996 after it was initially introduced into Parliament in November 1994. The provisions for hazardous substances, including a set of regulations outlining controls on hazardous substances, did not come into force until 2 July 2001.
In terms of hazardous substances, the HSNO Act replaces the following existing legislation:
- Explosives Act 1957
- Dangerous Goods Act 1974
- Toxic Substances Act 1979
- Parts of the Pesticides Act 1979
- Selected parts of other legislation
Radioactive substances will continue to be administered under the Radiation Protection Act 1967 and associated Regulations. Similarly, ozone-depleting substances will be controlled under separate legislation (Ozone Layer Protection Act 1996). The HSNO Act also does not deal with infectious substances which are administered under a range of other legislation.
Purpose of Act
“To protect the environment, and the health and safety of people and communities, by preventing or managing the adverse effects of hazardous substances and new organisms”.
Key Features
In terms of hazardous substances, the HSNO Act’s overall focus is on providing for the sound assessment and management of hazardous substances proposed to be imported into, or manufactured in New Zealand. The Act also incorporates a control framework for hazardous substances in line with their hazardous properties and risks presented at each stage of their life cycle.
In summary, the HSNO Act:
- consolidates existing legislation and regulations for hazardous substances
- provides for the establishment of the Environmental Risk Management Authority (the Authority)
- provides a framework for the assessment and approval of hazardous substances and new organism
- sets out the requirements for controls on hazardous substances· provides for the appointment of enforcement agencies and officers
Assessment and approval of hazardous substances
Under the HSNO Act, a general prohibition applies to the importation, manufacture and development of a hazardous substance, unless the substance has been formally approved by the Authority. This process started for new hazardous substances not previously in existence in New Zealand from 2 July 2001.
In granting approvals and in setting controls, the Authority considers effects of the substance on human health and safety, ecosystems, the environment and chattels.
Control framework
The HSNO Act’s control framework for hazardous substances is divided into two parts; controls for hazardous property performance (i.e. controls appropriate to the level of hazard of a substance) and controls for life cycle performance (i.e. controls for hazardous substances at each stage of their life cycle).
In terms of life cycle management, the HSNO Act sets minimum requirements such as for identification, labelling, packaging, tracking and disposal. These minimum requirements must be adhered to for all hazardous substances, irrespective of location.
These minimum performance standards set the bottom line for managing hazardous substances under any other legislation, including the RMA.
Transitional provisions of the HSNO Act
The commencement of the hazardous substances provisions of the HSNO Act on 2 July 2002 triggered the commencement of the transfer of “legally existing” substances into the HSNO framework. “Legally existing” substances include hazardous substances present in New Zealand under historical legislation before the advent of the HSNO Act – for example, the under the Dangerous Goods Act.
During this transitional period, the controls which have been carried through to the HSNO Act from repealed legislation will continue to apply for a time in order to create a smooth transition from the old legislation to the HSNO Act.
This means that initially, it will be “business as usual” for most hazardous substance users as they just continue to comply with the old legislation.
The same agencies that issued licences and permits under the old legislation will continue to issue and renew these.
Process and timing of hazardous substance transfers
The process that ERMA New Zealand adopts for transferring hazardous substances from repealed legislation to the HSNO regime covers two main substance groups:
- substances that were assessed and listed, licensed, permitted or otherwise specifically regulated under the old law
- substances which have not been assessed in the past - notified toxic substances (NOTs)
During the transitional period, individual substances or groups of substances that were legally in use prior to the Act coming into force will be progressively transferred to the new regime. It is important to understand that as soon as the transfer happens, the controls specified by the Authority on these substances start to apply to these as soon as they have been transferred.
The timing for transferring existing hazardous substances to the new regime is outlined below.
Assessed substances will be transferred first. The approximate timeframe for these is:
- authorised explosives – July 2002
- single component dangerous goods and specified scheduled toxic substances – April 2003
- registered pesticides – July 2003
- background work will be carried out in the next few years to sort through the notified toxic substances. But the bulk of the transfer of NOTs will not take place until after June 2003
Abandonment of licensing schemes
Once substances have been transferred to the HSNO Act, the licences, permits and so on required under the repealed legislation will no longer be needed.
Instead, users may need to obtain test certificates to show that they comply with some of the new controls. However, these test certificates will only apply to fairly specific circumstances and facilities on a site.
Further, there is a notification requirement for all Class 1 – 5 hazardous substances under the HSNO Act, where hazardous substance locations need to be notified to an Enforcement Officer.
However, when managing the locations of hazardous facilities, using associated controls under the RMA – such as the HFSP – will become increasingly important as a replacement activity for managing hazardous substances and monitoring these in a district.
Other legislation
Health and Safety in Employment (HSE) Act 1992
The principal objective of the HSE Act is to prevent harm to employees while at work, by:
- promoting excellence in health and safety management
- requiring people in places of work to perform specific duties to ensure that people are not harmed as a result of work activities
- providing for the development of regulations and approved Codes of Practice relating to specific hazards.
The Act focuses primarily on minimising the potential occupational and safety risks to people in the workplace and at the location of work. This involves a process of identifying, eliminating/ isolating or minimising workplace hazards, including those hazards which arise from the use or exposure to hazardous substances.
Overall, the HSE Act manages risks to workers on-site (in conjunction with the HSNO Act), while the objective of the HFSP is to manage these risks off-site
Agricultural Compounds and Veterinary Medicines Act 1997
This Act is administered by the Ministry of Agriculture and Forestry, and, among other things, addresses requirements for the registration and use of chemicals as agricultural compounds or veterinary medicines – it is therefore complementary to the HSNO Act and the RMA in farming situations. The assessment and approval process for hazardous substances under this Act is closely linked to the process developed under the HSNO legislation.
This Act replaces:
- Pesticides Act 1979 (parts thereof)
- Animal Remedies Act 1967
- Fertilisers Act 1960
- Stockfoods Act 1946
The Building Act
The Building Industry Authority administers the Building Act 1991, which provides for building safety.
In terms of hazardous substances, the focus of the Building Act is on fire safety. However, any structure or building specifically designed for hazardous substances (e.g. a bulk storage tank for fuel) does not fall within the scope of the Building Act. This responsibility was shifted to the HSNO Act with the enforcement of the hazardous substance provisions of the Act in July 2002
The Fire Service Act 1975
The Fire Service Act deals with matters relating to the structure, function and funding of the New Zealand Fire Service. Under this Act, incidents involving hazardous substances are considered to be emergencies that are attended by the Fire Service. Of interest is section 17N, which stipulates that the National (Fire Service) Commander shall provide for co-operation with territorial local authorities and regional councils, with special reference to hazardous substances emergencies.
The Health Act
The Health Act provides for territorial authorities to control nuisances, offensive trades, and the handling and storage of noxious substances, among other things. Although dated in some respects and long considered requiring updating or replacing, this Act still provides considerable powers for managing hazardous substances.
The Radiation Protection Act 1956
The Ministry of Health administers the Radiation Protection Act. It deals with the control of radioactive substances, including radiation-emitting equipment such as x-ray machines, and the occupational safety and health of workers who use radioactive substances.
The National Radiation Laboratory in Christchurch is the principal agency providing advice and guidance in these matters.
Transport Act 1962 and Land Transport Act 1998
These acts are especially relevant for the transport of hazardous substances on land. The Transport Act 1962 establishes classes of hazardous substances and places a duty on consignors and transporters of goods to package, label, segregate and provide documentation for hazardous substances, as well as requiring the training of drivers who transport hazardous substances.
The Land Transport Act 1998 provides for the promulgation of Land Transport Rules, one of which, the Land Transport Rule: Dangerous Goods 1999 (LTSA, 1999) deals with the land transport of dangerous goods (used instead of the term ‘hazardous substances’).
The Dangerous Goods Rule (45001) and the associated New Zealand Standard 5433:1999 replaces the provisions of the Transport Act 1962 and the old New Zealand Standard 5433:1988. The Land Transport Safety Authority administers the transport legislation.
back to topHow does the RMA relate to the HSNO Act?
RMA and HSNO Act fulfil different purposes and functions
In general, the RMA and the HSNO Act fulfil distinct purposes and functions which complement and do not duplicate each other. The HSNO Act sets minimum performance controls for the properties and life cycle management of individual hazardous substances, irrespective of where these substances will be used.
Therefore, any Council Officers exercising powers under the RMA relating to the storage, use, disposal, or transportation of hazardous substances must also be aware of the requirements for specific hazardous substances under the HSNO Act when setting any controls on hazardous facilities.
The RMA specifically takes into account the locality of a hazardous facility in relation to the surrounding environment and considers site-specific effects and risks of that facility and the hazardous substances that it holds and uses.
It is important to know that more stringent requirements can be placed on the storage, use, disposal, and transportation of a hazardous substance under the RMA than required under the HSNO Act if this is indicated as necessary.
back to topHow does the HFSP fit in with the purposes of the RMA and the HSNO Act?
Purpose of the HFSP
The HFSP has been developed as a procedure to enable local authorities, and specifically territorial authorities, fulfil their responsibilities for managing hazardous substances under the RMA. The HFSP helps determine the need for a resource consent and a more detailed assessment of environmental effects and risks.
The need for a new regulatory approach arose because of the requirement of the RMA to take an effects-based approach to hazardous substances management. Therefore, territorial authorities need to be able to assess the effects of facilities involving the storage and use of hazardous substances.
The HFSP allows the assessment of effects of individual substances, as well as the cumulative effects of numerous substances on a site. The HFSP also allows a series of substance and site specific factors, that may affect the degree of off-site effects, to be taken into account.
Local authorities also have a responsibility, as specified in section 142 of the HSNO Act 1996, for ensuring that the minimum performance requirements of the HSNO Act are reflected in implementing the RMA. The HFSP is based on HSNO performance standards for minimum degrees and classes of hazard. Therefore, the HFSP also meets the minimum performance standards of the HSNO Act.
Other methods for the land use control of hazardous substances
Historically, controls for of hazardous substances in the context of the planning law were relatively limited. In most cases, these controls consisted of lists or schedules of hazardous substances and noxious industries. By nature, these lists were limited in extent and therefore limited in the scale of their application.
Otherwise, much reliance was placed on other controls provided by other Acts such as the Dangerous Goods and Toxic Substances Acts. None of these controls are now consistent with either the purpose of the RMA or the HSNO Act.
Apart from the HFSP, a couple of other, less complex methods are also currently used for assessing hazardous facilities under the RMA.
These include Classification of Hazardous Substances (CHS) tables with associated quantity thresholds, and a simpler threshold system with three classes of hazardous substances: Low, Medium and High (LHM).
Generally, the HFSP has had the greatest level of uptake into district plans in New Zealand so far. A comparison of the uptake of different methods into district plans is shown below:
- HFSP: 40%
- CHS: 21%
- LHM: 6%
Exercise
2.1
- How would you describe the key differences between RMA and HSNO controls in managing the effects of a hazardous substance on a site?
- How does the HSE legislation fit into the context of managing hazardous substances under the RMA and the HSNO Act?
Key
application
Identify a key application of the information you’ve learnt in your day-to-day working environment.
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