Genetic engineering is just one aspect of the Hazardous Substances and New Organisms Act 1996. In the article below, Rob Lane, a partner of the Nelson Lawlink firm of Pitt & Moore focuses on the impact of that act on the management of hazardous substances.
IntroductionThe Hazardous Substances and New Organisms Act ("HSNO") was passed in June 1996. The parts concerned with new organisms have been in force since July 1998. These aspects of the Act and some of the decisions of the Environmental Risk Management Authority ("ERMA") have been the subject of much public debate and controversy, particularly over genetic engineering.
However it is less well known that the Act's provisions for hazardous substances came into force on 2 July 2001. This heralds a new regime for the approval of new substances, the review of existing substances and the application of appropriate controls.
Generally, hazardous substances are characterised by their readiness to explode, burn, oxidise (that is, accelerate the combustion of other material) or corrode, or by their toxicity to people and ecosystems.
PurposeThe purpose of the HSNO Act is 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".
The Act contains in excess of 250 sections and has already spawned no less than 23 different sets of regulations. This legislation is the framework for a comprehensive health, safety and environmental package which provides for:
a consistent methodology for assessing and approving all hazardous substances and new organisms; suitable controls for new organisms during research and field trials and for hazardous substances; public consultation during the approval and assessment process; a process for reassessing controls on new organisms and hazardous substances; the monitoring and enforcement of the legal requirements; the conduct of enquiries into major incidents.What Has Changed?Previously, hazardous substances were dealt with in a somewhat haphazard fashion by differing pieces of legislation. The HSNO Act replaces the Toxic Substances Act 1979, the Dangerous Goods Act 1974, the Explosives Act 1957 and to a large extent the Pesticides Act 1979.
As from 2 July 2001, the approval of ERMA is required to import or manufacture a new hazardous substance.
Extensive transitional provisions deal with existing substances. Generally, the existing controls on these substances will continue until ERMA has had the opportunity to reclassify them under the HSNO Act and impose appropriate controls.
At this stage, ERMA expects to have reassessed explosives by July 2002, dangerous goods by April 2003 and pesticides by June/July 2003. New controls will be imposed for existing substances as a result of these reviews. There will be extensive public consultation during this process.
ERMA's RoleERMA is charged with the responsibility of assessing both new and existing substances. A methodology has been established in an endeavour to ensure that a consistent approach is used. Public notification is a feature of the Act.
The Act embodies, as fundamental principles, the need to:
safeguard the life-supporting capacity of air, water, soil and ecosystems; maintain and enhance communities' capacity to provide for their own economic, social and cultural well being and for the reasonable, foreseeable needs of future generations.The Act also requires caution to be exercised where there is scientific and technical uncertainty about managing adverse effects.
In making a decision, the Authority has to assess the substance in terms of:
risk - the magnitude of an adverse effect and the probability of it happening; cost - the value (monetary or other) of an adverse effect; benefit - the value of a positive effect; management of the risks.ControlsThe application/assessment process will consider controls for matters such as the use, packaging, storage, transportation, and disposal of the substance.
There is already an extensive framework of classification and standard controls. Substances are classified by their properties. There are eight classes; three for flammability (gases, liquids and solids) and one for each of explosiveness, capacity to oxidise, toxicity, corrosiveness and eco-toxicity. Each class is further subcategorised.
A substance may fall into more than one class. For example, the substance may be both flammable and toxic. Once categorised, the standard controls for that category apply. ERMA can modify these controls as appropriate for the substance concerned.
Controls are prescriptive rather than descriptive. For example, containers for hazardous substances will not be defined by design. Instead they will have to meet certain performance parameters such as their ability to insulate the substance from specified shock loads. A performance-based control system will enable the development of new technologies to meet certain requirements.
No doubt, some of the controls proposed will be the subject of considerable debate. Already the regulations establishing controls for pesticides have raised controversy. These are the regulations that establish methods for setting acceptable daily exposure limits, tolerable exposure limits, workplace exposure standards and application controls (for example, spray drift).
Enforcement The Act and the controls imposed under it will be enforced by a number of agencies including ERMA, Occupational Safety and Health, Ministry of Health, Maritime Safety Authority, Civil Aviation Authority, Land Transport Safety Authority, the Police, local councils, and the Ministry of Commerce.
Enforcement officers will be able to require a person to do or to stop doing something or to remedy the effects of non-compliance.
A term of imprisonment or a fine of up to $500,000 can be imposed for an offence and an additional $50,000 a day for a continuing offence. The Court can also require an offender to remedy or mitigate the effects of non-compliance at their own cost.
SummaryImporting or manufacturing new hazardous substances now requires the approval of ERMA. The next two years will also see a systematic review of existing hazardous substances and the introduction of new controls as a result.
Copyright The Lawlink Group Ltd 2001
Every effort has been made to ensure that this information is accurate. However, it is general introductory information only. It does not constitute legal advice and should not be relied on as such. Specialist legal advice should be sought in particular matters. Any reference to law and legislation is to New Zealand law and legislation.
Rob Lane is a Partner in the Lawlink firm of Pitt & Moore. He specialises in commercial property, commercial, company, employment and taxation law.
Email: rob.lane@pittandmoore.co.nz
Web site:
Pitt & Moore November 2001