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Hazardous Substance Strategy: Volume One

Foreword

Executive Summary

1 Introduction

2 Streamlining the Hazardous Substance Application Process

3 Improving how Controls are Communicated

4 Compliance and Enforcement

5 Regulatory Impact Statement - Data Collection

6 Having Your Say

Glossary

4 Compliance and Enforcement

4.1 Background

4.1.1 The Hazardous Substance Strategy - an interim solution in place

The Hazardous Substances Strategy identified compliance monitoring and enforcement as a high priority, and recommended the following actions to address existing and future enforcement issues:

• enable ERMA to have a greater role and accountability for directing and co-ordinating enforcement agency activities through having new funding to contract other enforcement agencies to carry out particular work
• develop arrangements to maintain local capacity in hazardous substance compliance activities
• in the longer term, amend the HSNO Act to clarify the role of ERMA, territorial authorities and regional councils with respect to compliance monitoring and enforcement for hazardous substances.

As part of the development of the strategy, it was recognised that it is difficult for many district and city councils to meet their hazardous substance obligations given the small role specified in the HSNO Act. Many councils have been opting to let skilled staff go, potentially creating gaps in skills across the country. To address this local capacity issue and to help ERMA take a stronger role in HSNO enforcement in the short term, the government has approved extra funding for ERMA for three years.

ERMA will use the funding to ensure there are skilled hazardous substance enforcement officers throughout the country. ERMA, in conjunction with Occupational Safety and Health, will do this by contracting territorial authorities or groups of territorial authorities to carry out hazardous substances compliance monitoring, enforcement and emergency response activities in the workplace on behalf of central government. ERMA will encourage groups of councils to discuss the opportunities for jointly employing a hazardous substance enforcement officer for non-workplace compliance. This joint approach, together with the contracted central government work, should help local authorities take a strong role in hazardous substance compliance monitoring and enforcement.

Funding has also been approved to carry out a pilot programme to test regional council involvement in HSNO enforcement and for some regional council training in the HSNO Act.

4.1.2 Compliance monitoring and enforcement of hazardous substance controls

Section 97 of the HSNO lists who the enforcement agencies are and in what places or what subject areas they are responsible for hazardous substances enforcement. This is summarised in Table 1.

Table 1: Compliance and enforcement under the HSNO Act

These roles were designed to ensure maximum overlap with existing agency functions, with a view to the 'one-stop shop' idea, meaning a business would not have to undergo inspections by a plethora of government agencies.

The main task of enforcement agencies is to make sure the controls placed by ERMA on hazardous substances are being complied with. Enforcement agencies are required to do this by:

• appointing and warranting trained enforcement officers
• liaising with each other to clarify and manage potential overlaps and gaps in responsibilities
• carrying out compliance checks, including checks on compliance with controls and test certificates
• providing information to ERMA
• promoting compliance with the Act and with the conditions set by ERMA on approvals
• giving advice and information about the HSNO Act.

There are potential overlaps and gaps between the enforcement agencies' roles, because it is not feasible to list all the situations in legislation. In order for the compliance regime to work well, therefore, there needs to be a large degree of co-operation between agencies and co-ordination by ERMA.

It is also worth noting that regional councils and territorial authorities have land-use control functions in relation to hazardous substances and hazardous facilities under the RMA (sections 31 and 62).

4.2 Clarifying the current role of territorial authorities under the HSNO Act

The funding approved by government in 2003 is for three years only and is considered a temporary solution to the problem that has arisen with the decision of a number of territorial authorities not to retain hazardous substance enforcement people on their staff. We have heard of several reasons for territorial authorities' making this decision, including councils considering:

• their role in this area is not clear
• the role does not require any active work on their part
• it to be a lower priority for them, and given scarce resources and the small size of the role they have no choice but to withdraw completely from hazardous substances enforcement.

Some councils, on the other hand, are being very proactive about their role in hazardous substance enforcement.

In order to address the first two issues raised above, we propose to change section 97 to have an explicit statement about the locations where territorial authorities are responsible for hazardous substances enforcement:

Territorial authorities:

• are responsible for hazardous substance enforcement in public places and private dwellings (except for in, on or around any gas distribution system, installation or appliance, which is covered by the Energy Safety Service, or any public health issues covered by the Ministry of Health);
• can choose to enforce the HSNO Act while inspecting premises under the RMA if they wish; and
• are responsible for hazardous substance enforcement where the function has been transferred by another enforcement agency.

As is currently required, territorial authorities and the other enforcement agencies have to work together in a co-operative manner to develop good working relationships for dealing with those incidents that do not clearly fall under one agency's responsibility.

With regard to the limited extent of territorial authorities' role, we wish to hear from councils as to whether the interim solution of councils jointly employing a hazardous substance enforcement officer, and allowing that person to also contract to ERMA and OSH, is viable in the longer term.

4.3 An enforcement role for regional councils under the HSNO Act

A committee [Agrichemical Trespass Ministerial Advisory Committee.] set up by the Minister for the Environment in 2001 recommended that regional councils be included in HSNO enforcement, particularly for dealing with agrichemical trespass incidents. We have had feedback from some regional councils that they can see real advantages in this proposal, while others oppose it.

The focus of the RMA is on managing the actual or potential adverse effects on the environment that might occur when hazardous substances are stored, used, disposed of, transported or discharged at a particular site. The RMA, through district and regional plans, provides the means for developing methods and rules to manage hazardous substances on a site- and environment-specific basis. [Ministry for the Environment,Acting Together - Links between the HSNO Act and the RMA, Ministry for the Environment, Wellington, New Zealand, 2003.] Regional councils' responsibility for controlling hazardous substances under the RMA comes under their functions relating to managing the discharge of contaminants into the environment.

HSNO controls on hazardous substances have a national effect - in other words, the same controls apply regardless of where the site is located. The HSNO controls set the bottom line for controls on hazardous substances. Local authorities may set stricter standards through setting requirements in their plans or resource consent conditions. [Resource consents that conflict with proposed HSNO controls are not automatically made void when that control comes into legal effect. However, when the consent is reviewed or renewed, it must be updated to at least meet the relevant HSNO controls.] For example, a local council might require that a large tank containing petrol must be located a greater distance inside the site boundary than is required by the HSNO regulations because there is a fireworks factory next door.

In the case of the use of agrichemicals, the HSNO Act specifies requirements for exposure limits outside the application area, record keeping of the spray activities, the standard of equipment, and the qualifications of the people handling the chemicals. The regional plan may further require that neighbours are notified before spraying commences.

The HSNO Act requires regional councils to update their regional plans as substances are transferred from transitional controls to HSNO controls so that the plan is at least as strict as the HSNO controls. The Act also requires councils to update any resource consents when they come up for review or renewal so that they are at least as strict as the HSNO controls.

If any HSNO controls contained in RMA plans and resource consents are breached, then a regional council can enforce these requirements under the RMA. We expect the process of updating plans and consents to take some time, particularly as the HSNO controls on some substances may not be known until transfer is completed in 2006.

It will be difficult to include codes of practice, for example, in regional rules as regional rules cannot refer to third party documents that can be updated. Where an activity is deemed permitted by the local regional plan, allowing regional councils to call upon the activity-based requirements of the HSNO Act could result in better environmental outcomes.

Another issue of concern is the reporting and monitoring of incidents involving hazardous substances. Currently, regional councils are the first port of call for such incidents through their well-established 'Pollution Hotlines'. These are generally a 24-hour-a-day 7-day-a-week response service. A lot of information about hazardous substances in the environment (eg, spray drift incidents) is collected by councils, but it is ERMA that makes the decisions about appropriate controls for hazardous substances. We therefore think that it is important to establish a reporting relationship between regional councils and ERMA.

Another aspect to consider is how HSNO enforcement agencies and regional councils can complement each others' roles. Regional councils carry out inspections under the RMA, either responding to incidents or checking compliance with resource consents. An option might be to have regional council officers also report to OSH or territorial authorities on basic HSNO requirements while they are on the premises (eg, whether the appropriate up-to-date test certificates are held). This could be achieved through a simple agreement and would not require any change to the law. It would, however, require OSH and ERMA to offer training for regional council staff so that they knew what to look for.

We propose that regional councils:

• be responsible for hazardous substance enforcement where hazardous substances are discharged into the environment, including but not limited to discharges from trade and industrial premises
• can choose to enforce the HSNO Act while inspecting premises under the RMA if they wish
• be responsible for hazardous substance enforcement where the function has been transferred by another enforcement agency.

4.4 Formalising emergency response planning under the HSNO Act

Territorial authorities and regional councils need to be able to contribute to, and plan for, emergency management in their region in the event of all types of emergencies. Several pieces of legislation are required to be used in this planning process. These include the HSNO Act and the HSNO Emergency Management Regulations, and the Civil Defence and Emergency Management (CDEM) Act. In addition, various agencies and committees need to work together to ensure sound preparation for emergencies involving hazardous substances, including hazardous substances technical liaison committees (HSTLCs).

There are several key areas in the HSNO Act and regulations that provide for dealing with hazardous substances emergencies, including requirements for emergency management planning for individual sites that use hazardous substances. The system is based on a three-level framework, which has cumulative requirements: level 1 provides for situations where a single person may be affected; level 2 for situations where several people and/or the environment may be affected; and level 3 for situations where a large number of people may be affected and/or there may be large-scale environmental contamination.

The requirements at each level are cumulative, so that at the very least information about a hazardous substance must be stored, and, at the other end of the scale, an emergency management plan must be in place. The HSNO Emergency Management Regulations are very specific and have been broken down into different groups of hazardous substances as well as requirements for different amounts of the same substance.

In 2002 the CDEM Act replaced the Civil Defence Act 1983. The CDEM Act requires regional councils to co-ordinate a regional group for the purposes of planning activities relating to civil defence emergencies for readiness, reduction, response and recovery. Civil defence and emergency management groups:

• must be formed within regions
• must form a civil defence and emergency management plan for their region,
• must include the HSNO Act (and a raft of other legislation) in their civil defence and emergency management plan
• are led by a national civil defence and emergency management group and plan (plan due 2005).

The functions of the civil defence and emergency management group include hazard management for their regions, providing resources and providing for emergency response and recovery. Each civil defence and emergency management group in each region is required to form a co-ordinating executive group. These are usually made up of the chief executive officer of each member local authority, a senior member of the Police and Fire Service, the chief executive officer of the hospital and health services, and any other person co-opted by the civil defence and emergency management group.

The function of the co-ordinating executive group is to:

• provide advice to the civil defence and emergency management group
• implement the decisions of the civil defence and emergency management group
• oversee the development, maintenance, monitoring and evaluation of the civil defence and emergency management group plan.

The impact for the HSNO legislation is that the CDEM Act provides a good framework, which requires the key agencies to work together to plan for, respond to and give advice on emergency situations, including hazardous substance emergencies.

Hazardous substances technical liaison committees (HSTLCs) grew out of the Royal Commission of Inquiry into a chemical incident in Parnell in 1973. The Royal Commission recommended setting up formal meetings between the emergency services within regions. These are known as emergency services co-ordinating committees (ESCCs). At their first meeting, the national ESCC realised that they had come together because of a chemical incident but no one on the committee had sufficient technical knowledge about chemicals. It was therefore decided to form a sub-committee to advise on chemical incidents comprising toxic substance inspectors from the Department of Health, dangerous goods inspectors from both Occupational Safety and Health and territorial authorities, and the former Department of Scientific and Industrial Research. Their role was purely to provide technical advice to emergency services while still carrying out their own statutory functions. The participation of enforcement agencies in HSTLCs has been relatively informal.

While historically the focus has been on being an advisory body - to give advice to the lead agency dealing with a particular response - the committees have also been used as a forum to clarify roles in preparation for particular emergencies (eg, which agency will take the lead in which circumstances). HSTLCs have also set up communication systems so that agencies know which of their colleagues to notify when particular incidents occur. HSTLCs operate with some success in some regions.

The New Zealand Fire Service commissioned a report in November 2003 to:

• ensure there was a national capability for HSTLCs
• review roles and functions
• ensure HSTLCs are able to function within the emergency management structure.

A recent survey (undertaken by New Zealand Fire Service) shows that most HSTLCs are operating at a level appropriate to their needs. However, anecdotal comments from recent discussions with 11 regional councils would suggest that there is some variance throughout New Zealand with regard to the effectiveness of the HSTLCs.

The National Hazardous Substances Technical Liaison Committee report concludes that there are two options regarding the future status and functions of HSTLCs.

• Option 1: It is seen as important for the structure of the HSTLC to remain informal, so that it is essentially a liaison group to provide advice in the event of hazardous substance emergencies. They should not be formally linked to the co-ordinating executive group.
• Option 2: The HSTLCs will logically become a sub-committee of the co-ordinating executive group. This will allow them to be involved in planning and to contribute their specialist knowledge to their regional emergency plan.

HSTLCs clearly provide an opportunity for co-ordination between HSNO enforcement agencies and ensure a link between individual site-based emergency response planning and larger incident emergency response planning under the CDEM Act. However, there is some variability in how effective the co-ordination is across the country, and a question as to whether formalising HSTLCs under the HSNO Act would help to ensure this. We would like to receive advice from those involved in HSTLCs and emergency response planning as to what they view as the best approach.

At the time of writing, the National Hazardous Substances Technical Liaison Committee had met and decided that the option they preferred was option 1, whereby the committee would remain informal and therefore would not be linked to the co-ordinating executive group. The National Committee was concerned that formalising the committee would generate a bureaucratic system that could compromise the effective relationships, networking and good technical advice that come out of the current informal HSTLC system.