Report to the Minister for the Environment
Enforcement of the Hazardous Substances and New Organisms Act 1996 December 2017
www.epa.govt.nz
Report on enforcement of the Hazardous Substances and New Organisms Act 1996
Table of Contents
Purpose...... 3
Executive Summary ...... 3
Introduction ...... 6
Background ...... 6
Working Safer Reforms ...... 6
Enforcement Agency Activities and Intentions ...... 8
Ministry for Primary Industries ...... 8 WorkSafe New Zealand ...... 16 Ministry of Health ...... 24 New Zealand Transport Agency ...... 30 New Zealand Police...... 30 Civil Aviation Authority ...... 33 Maritime New Zealand ...... 35 Territorial Authorities ...... 37 Regional Councils...... 41
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Report on enforcement of the Hazardous Substances and New Organisms Act 1996
Purpose
1. This report presents the Environmental Protection Authority’s (EPA’s) assessment of the enforcement of the Hazardous Substances and New Organisms (the Act) Act 1996 for the 2016/17 year.
2. The EPA is required, under section 99(1) of the Act, to ensure that its provisions are enforced in all premises likely to contain a hazardous substance or new organism. The Act also requires the EPA to advise the Minister for the Environment, and enforcement agencies under the Act, when it considers that there is insufficient or unnecessary inspection and enforcement. Executive Summary
3. Central Government agencies who are responsible for enforcing the provisions of the Act have delivered effective enforcement programmes. However, the performance of territorial authorities continues to remain variable, with smaller authorities having the greatest variability due to the lack of financial and human resource. Regional Councils made a good contribution to the enforcement of the Act, but the EPA would still like to see more involvement.
4. The table below summarises EPA’s assessment of the performance of the section 97 (s 97) hazardous substances and new organisms enforcement agencies for 2016/17.
Enforcement agency Assessment of agency performance
Ministry for Primary EPA consider the Ministry for Primary Industries (MPI) to have satisfactory levels Industries of inspection of containment facilities, with approximately 80 percent of these facilities being inspected. The rate of non-compliance amongst containment facilities is relatively low reflecting the work undertaken by the organisation to ensure compliance. However, as with 2015/16, considerable resources have been committed by MPI to resolve a compliance issue with the Kamo Wildlife Sanctuary (formerly Zion Wildlife Gardens) as well as an organisational restructure to establish a dedicated biosecurity verification team and progression of the Zoo Standard.
WorkSafe New In 2016/17, WorkSafe spent considerable time preparing to implement the Act Zealand and HSW Hazardous Substance (HS) Regulations which come into force on 1 December 2017. This included working alongside the Ministry of Business, Innovation and Employment to review policy papers, drafting specific HSW HS Regulations, conducting a provision by provision review of the draft HSW HS Regulations, and responding to queries from the Parliamentary Counsel Office and addressing submitter’s comments. While some parts of WorkSafe’s 2016/17 report is not comparable to the data reported in 2015/16, some aspects are, such as the number of HSNO specific workplace assessments which are undertaken. In 2016/17, WorkSafe undertook 2,533 assessments with a hazardous substance focus, which is a decrease from the 2015/16 year when 3,104 assessments were undertaken. The number of HSNO investigations
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Enforcement agency Assessment of agency performance
arising from a workplace assessment went down from 14 in 2015/16 to 12 in 2016/17 as well as the number of enforcement actions taken from 331 in 2015/16 to 225 in 2016/17. The number of prosecutions have remained unchanged.
Ministry of Health The Ministry of Health (MoH) has delivered an effective programme of proactive and reactive initiatives to manage public health risks from a wide range of hazardous substance exposures. Given the nature of HSNO enforcement, MoH is generally not the lead agency but rather plays a supporting role. Upcoming changes to enforcement agencies may result in some reassessment of roles and responsibilities.
NZ Transport Agency While the New Zealand Transport AgencyWork has the power to enforce the Act “in or on any motor vehicle, on any road, in or on any rail vehicle, or on any railway line”, the NZTA does not enforce HSNO directly and while the Commercial Vehicle Safety Team of the NZ Police will respond to rail incidents involving hazardous substances, it is entirely reactive. This means that there has been no proactive HSNO regulation of rail.
NZ Police The Commercial Vehicle Safety Team (CVST) provides a good level of (CVST) hazardous substance enforcement on roads through ensuring compliance with the Land Transport Rule: Dangerous Goods Rule 2005. This is demonstrated through the steady number of vehicles inspected for 2016/17. As in previous years, the CVST has one warranted enforcement officer, a situation that has existed for a number of years. Police are still looking to increase this number, through joint training with WorkSafe.
Civil Aviation Authority EPA consider the CAA to be effectively managing the risks associated with hazardous substances in the aviation industry as a result of all reported incidents being assessed for levels of compliance as well as undertaking inflight audits and inspections. The CAA currently has one HSNO warranted officer, with a further two staff members to be warranted in 2017/18.
Maritime NZ Maritime New Zealand (MNZ) addresses HSNO through its audit and inspection work conducted through the Maritime Transport (MT) Act. MNZ does not capture specific information on HSNO activities, aside from the number of vessels inspected for legislative compliance against the Act, the IMDG Code and the MT Act as well as the number of warranted HSNO officers on staff. This makes it difficult to determine whether the level of activity involving HSNO has been adequate. The EPA is satisfied that MNZ is enforcing the provisions of the Act when inspecting vessels and are pleased to see that the number of inspections are consistent.
Territorial Authorities The EPA ran a successful series of workshops across New Zealand, the purpose of which was to understand the issues being experienced by TAs when enforcing hazardous substances legislation. The EPA is currently in the process
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Enforcement agency Assessment of agency performance
of collating all the information from these workshops and plan to progress a programme of work to increase TA engagement. The overall results from the 2016/17 survey reveal a wide variation in the degree to which TAs are engaged in hazardous substance enforcement activity. The TAs that are most involved tend to be city councils which are able to retain a core number of warranted HSNO enforcement officers who have the HSNO knowledge and experience to enable them to carry out enforcement activities. Smaller TAs have more limited resources so staff have to fulfil multiple roles and appear to find maintaining currency of skills and knowledge a challenge, particularly as they do not have a lot of incidents. A wide variety of issues were raised by TAs this year. Two issues that have been previously raised relate to the test certifiers’ database, the reliability of the data it holds and the time taken to extract data from it, as well as the availability of training in the management and enforcement of hazardous substances. Some councils believed that EPA needed to take more of a lead in HSNO, through providing training and having readily accessible information about hazardous substances. One council considered that HSNO was a highly technical specialist area, for which there was little to be gained through training when there was no substantial activity.
Regional Councils It was pleasing to see a 45 percent increase in the number of incidents being reported and a 50 percent increase in the number of incidents being attended. Regional councils have much to offer the HSNO regime from a compliance perspective given their depth of knowledge and experience in regulatory affairs. EPA would like Regional Councils to see the enforcement of HSNO legislation as enhancing or complementing their RMA responsibilities. Regional councils could play a significant role in HSNO enforcement as they have considerable expertise in environmental matters.
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Introduction
5. The purpose of the Act is to protect people, the environment, and the health and safety of communities, by preventing or managing the adverse effects of hazardous substances and new organisms. The EPA has overall responsibility for ensuring the provisions of the Act are enforced and advising the Minister and enforcement agencies when it considers there is insufficient or unnecessary inspection and enforcement.
6. The EPA reports annually to the Minister for the Environment on the enforcement of the Act. The previous report was provided in December 2016.
7. This report reviews enforcement of the Act for the 2016/17 year. Background
8. Enforcement of the Act in respect of new organisms is the responsibility of the Ministry for Primary Industries (MPI).
9. Enforcement of the Act in respect of hazardous substances is spread over 85 central and local government agencies. Agencies responsible for enforcement of the Act are:
WorkSafe New Zealand (WorkSafe), responsible for enforcement of the Act in workplaces
Energy Safety Group (part of WorkSafe), responsible for enforcement in, on, at or around any distribution system, gas installation or gas appliance
Ministry of Health (MoH), where a substance may be a risk to public health
New Zealand Transport Agency, New Zealand Police, Maritime New Zealand and the Civil Aviation Authority, responsible for enforcement in or on any: motor vehicle, road, rail vehicle, and railway line; ship; or aircraft
Territorial Authorities (67) are responsible for enforcement in or on premises other than those specified above.
10. Unitary Authorities and Regional Councils (11) may enforce the Act where the Authority or Council is in premises specified above for the purposes of enforcing the Resource Management Act (RMA) 1991 or they have been transferred functions, powers or duties under the Act.
11. To inform this report a survey was sent to enforcement agencies requesting information on their Act compliance and enforcement activities. Working Safer Reforms
12. Workplace controls for hazardous substances are transitioning to the regulations of the Health and Safety at Work (HSW) Act 2015 that is administered by WorkSafe, which take effect on 1 December 2017. The health and safety reforms are intended to achieve greater compliance through simplification of the legislation. In tandem, to give the EPA greater control over its own legislation, it
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introduced a new tertiary legal instrument called ‘notices’1. The EPA worked closely with WorkSafe to operationalise its requirements and the following core deliverables have been achieved:
Developed 8 new Notices
Updated the EPA Hazardous Substances Controls Database to reflect the new notices and new regulations and to give database access to WorkSafe
Updated existing Group Standards to reflect the new regulations and notices
Updated the hazardous substance approval process to reflect the split of controls between HSW and HSNO
Developed Guidance for the new elements of the Hazardous Substances system
Updated the MoU and develop associated Schedules between EPA and WorkSafe to reflect role accountabilities and operational interfaces
13. The Working Safer Reforms project aimed to implement the people, process and technology to support the changes to the regulatory framework for hazardous substances in the workplace. The EPA worked alongside WorkSafe, Ministry of Business, Innovation and Employment and Ministry for Environment to deliver the tertiary legal instruments. This project had the following high level objectives:
Users of hazardous substances in the workplace are able to navigate the new HSW regulations, EPA notices, the Controls for Approved Hazardous Substances register and group standards to understand their compliance obligations.
The decision makers understand the HSW regulations and how to apply them in the EPA approval process for hazardous substances. The new approval process relies on the EPA receiving input from WorkSafe to assess the adequacy of HSW controls and WorkSafe needs risk assessments (including human health) and classifications from EPA to make their assessment.
The EPA needs processes and systems to support day-to-day operational workflows. For each of the different application types processes will need to be agreed in consultation with WorkSafe, so they can provide input within statutory timeframes. Training will be provided to the appropriate EPA business units to ensure a smooth transition to the new arrangements.
The EPA must establish the core set of EPA notices and be able to manage the impacts of any ongoing change to EPA notices.
The EPA has a statutory responsibility to certify (or delegate certification of) some items (e.g. retail fireworks)
1 EPA Notices will replace the regulations that contain most of the controls for hazardous substances and will come into force on 1 December 2017
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All enforcement agencies (including the EPA, as per amended section 97) and customers (importers and manufacturers, users of hazardous substances, retailers, industry, parties involved in disposal, the general public etc.) understand their responsibilities so that they follow the rules.
Other government agencies, and non-government organisations and submitting parties understand who is responsible for enforcing which controls. Impacts on HSNO enforcement agencies post reform 14. The transfer of workplace management of hazardous substances to the new HSW legislation will see a reduction in the roles and responsibilities for WorkSafe under HSNO legislation, but other agencies will also be affected to some extent. These changes will be reflected in the activities and intentions reports received from WorkSafe in future years.
15. As of 1 December 2017, regulation of hazardous substances when being transported will be under HSW HS regulations and transport instruments. This will impact on the New Zealand Transport Agency, New Zealand Police, Civil Avaition Authority and Maritime New Zealand in future years. Furthermore, there will be no test certifiers under HSNO legislation from 1 December as this is also moving to the HSW Act. This will impact on TAs in future years as well. Enforcement Agency Activities and Intentions
16. This section summarises, for each enforcement agency, HSNO incidents, inspections, and enforcement activities carried out in the 2016/17 financial year, and intended inspections and enforcement activities for 2017/18. Advice on the EPA’s assessment of enforcement agency activities and intentions is also provided with a particular focus on where the EPA considers there is insufficient or unnecessary inspection and/or enforcement. Ministry for Primary Industries
17. MPI is responsible for ensuring that the provisions of the Act are enforced “in respect of new organisms”. Assessment of agency performance 18. MPI is meeting its regulatory responsibilities for enforcement of new organisms at the border, in containment facilities, and when dealing with incursion responses. Level of inspection and enforcement 19. EPA consider the Ministry for Primary Industries (MPI) to have satisfactory levels of inspection of containment facilities, with approximately 80 percent of these facilities being inspected. The rate of non-compliance amongst containment facilities is relatively low reflecting the work undertaken by the organisation to ensure compliance. However, as with 2015/16, considerable resources have been committed by MPI to resolve a compliance issue with the Kamo Wildlife Sanctuary (formerly Zion Wildlife Gardens) as well as an organisational restructure to establish a dedicated biosecurity verification team and progression of the Zoo Standard.
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Activities for 2016/17 Area of activity Comment
Enforcement officers Staffing As at 30 June 2017, MPI had approximately 32 new organism enforcement officers. These are spread across numerous directorates related to verification services, border clearance services, compliance, surveillance, response, and investigation. The number is ‘approximate’ because while warranting does not have an expiry date, MPI requires re-training every three years to maintain competency. The number reported reflects the differences in training timelines.
Containment verifiers
Containment verifiers are biosecurity inspectors, warranted as such under the Biosecurity Act 1993, and/or enforcement officers, warranted as such under the HSNO Act 1996, to perform verification activities related to new organisms, particularly those held in containment facilities. As well as containment verifiers, other personnel (such as travelling technical supervisors) also perform these activities. While these staff are employed as FTEs, not all their time is allocated to these activities. Their other responsibilities are related to the Biosecurity Act (e.g. transitional facility verification and approval of facilities and operators). Consequently, the number of personnel is not a true reflection of the FTEs dedicated to new organism enforcement.
As at 30 June 2017, 10 staff were undertaking verification of containment facilities and HSNO approvals.
Dedicated HSNO enforcement
Because of the scope of new organism enforcement activities distributed across MPI, it is difficult to provide an exact figure of FTEs directed to HSNO new organism outputs. Apart from activities directly related to verification of containment facilities and HSNO approvals, the scope of enforcement activities includes areas related to, and the management of :
Animal welfare
Communication Compliance
Investigation
Legal Ministerial services
Policy
Response Risk assessment
Standards
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Surveillance
Training. MPI estimates the percentage of its activities dedicated to new organism enforcement to be equivalent to nine FTEs.
HSNO enforcement 2017 Although it is not possible to exactly identify the number of personnel MPI will have engaged in enforcement activities, MPI does not expect that the percentage of its activities dedicated to new organism enforcement will decrease below the equivalent of nine FTEs in 2017/18.
Total number of containment facilities
Containment There was a total of 229 containment facilities in 2016/17, an increase on the 149 facilities holding reported the previous year. new organisms Total number of audits and inspections
It is estimated that MPI conducted 213 containment facility audits/inspections2 in 2016/17.
The number of containment facility audits/inspections identified above does not indicate the number of containment facility “type” in terms of the containment facility standard(s) a particular facility is approved to. Some containment facilities are only approved to one standard while others are approved to multiple standards. In terms of containment facility standard(s), the containment facility audits/inspections are broken down as follows
Inspection types
Audits/inspections against the Microorganism/Cell Culture 140 Standard
Audits/inspections against the Vertebrate Laboratory Animals 34 Standard
Audits/inspections against the Zoo Animals Standard 45
Audits/inspections against the field testing of Farm Animals 2 Standard
Audits/inspections against the Invertebrates Standard 34
Audits/inspections against the Plants Standard 30 Total 285
Compliance rate
Of the approximately 229 containment facilities, 52 (22 per cent) were non-compliant in some respect against the following standards:
Microorganism/Cell Culture Standard 40
2 During 2016/17, work was initiated to reconcile inspection data across the Verification Service and Border Clearance directorates held in different databases. This work has yet to be completed, consequently, there are still some difficulties in gathering relevant inspection data. It is hoped to complete this during 2017/18.
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Vertebrate Laboratory Animals Standard 3
Zoo Animals Standard 4 Field testing of Farm Animals Standard 0
Invertebrates Standard 1
Plants Standard 4 Total 52
More than 95 percent of the above non-compliances were minor in nature. The most frequently occurring non-compliances related to:
Overdue or inadequate internal audits
Registers not up to date
Overdue refresher training Manual not up to date
Minor structural maintenance issues
One non-compliance resulted in one critical situation report (CSR) being issued during 2016/17 to Auckland Zoo. This was for a breach of containment occurring as a result of a break-in by unauthorised personnel after the Zoo had closed to the public. No breaches of animal containment occurred as a result of the unauthorised entry.
While 52 facilities were found to have non-compliances, all of them satisfactorily remedied compliance requirements as a result of their inspections and audits. This rate of compliance was also achieved last year.
The level of non-compliance correlates with facility size. The larger the facility, the more standards are likely to be applicable. A higher number of active HSNO approvals required brings greater likelihood of non-compliance, thus requiring a greater level of resource to ensure that the facility is compliant.
While any non-compliance is unacceptable, the vast majority of non-compliances were minor in nature and considered a low biosecurity risk. MPI takes all instances of non-compliance seriously and actively endeavours to raise the overall compliance level through facilitating systems improvement, educational engagement and communication with facility stakeholders on expectations and responsibilities, and improving audit processes and systems.
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A total of five investigations, some ongoing, were conducted in 2016/17:
Investigation Illegal importation of two shrimp species – MPI has an ongoing investigation into the possible illegal importation of several species of freshwater shrimp, popular with ornamental aquarium enthusiasts. During 2016/17, the Environmental Protection Authority (EPA) determined that both species were new organisms. The investigation is expected to be completed in 2017/18.
Illegal importation of Ficus watkinsiana – MPI conducted an investigation into Ficus watkinsiana, which was determined to be a new organism. Biosecurity and HSNO charges were commenced and later withdrawn after evidence was received of the existence of this tree species in New Zealand. MPI is in the process of applying to EPA for an s 26 determination on new organism status.
Possible illegal importation of a moth species – MPI completed investigations into an alleged illegal importation and distribution of a tropical moth species.
Unintentional importation of Senecio Niveoaureus – MPI has initiated an investigation into the importation of a new organism plant species (Senecio niveoaureus), unintentially imported as a non-new organism (Stachys byzantina). Most of the plants have been sold and MPI has determined that the biosecurity risks are negligible. It is likely that MPI will apply to the EPA to de-new Senecio niveoaureus. .
Unintentional importation of genetically modified Petunia – MPI initiated an investigation into the possible unintentional importation of genetically modified strains of Petunia x hybrid. Orange-flowered varieties of Petunia are likely to be genetically modified and seeds of suspected varieties have been imported by nurseries for the past few years. All seeds imported by the importer have been provided to MPI and testing protocols have been initiated to test for genetically modified constructs.
A total of two Compliance Orders were issued under the Biosecurity Act against Kamo Wildlife Sanctuary and the Waikato Institute of Technology for operating a containment facility without an operator. Enforcement There were no prosecutions taken under the Act and two taken under the Biosecurity Act 1993 related to importation, propagation and communication of Malaysian moon moth (Actias maenas).
2016/17 initiatives to assist HSNO compliance 20. In last year’s report to the EPA, MPI proposed that for 2016/17 it would undertake activities to support and improve the quality, efficiency and effectiveness of enforcement. These activities were:
Personnel and responsibilities
o Re-engaged with the EPA to familiarise with new staff and responsibilities.
o Made adjustments to containment verifier responsibilities to improve efficiency of inspections under the HSNO and Biosecurity Acts, especially where facilities are registered as both containment and transitional facilities.
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o Made available back-up personnel to avoid service delivery loss through containment verifier absence.
o A major activity for the 2016/17 year was progressing the organisational restructure of Verification Services. This has resulted in the formation of a dedicated Biosecurity Team with its own Team Manager, to be formally established on 1 December 2017. This change reflects an increased priority that Verification Services is placing on biosecurity management and the need to strengthen inter-and intra-agency relationships in the facility/biosecurity space. Memorandum of Understanding (MoU) and Operational Agreement
o Little progress has been made in reviewing these documents due mainly to other priority work in the policy area. Standard development
o In collaboration with the EPA, considerable work was put into progressing the review of the Zoo Standard. MPI is now awaiting further progress from the EPA.
o No further work has been carried out advancing the review of the facility standards framework, due largely to the organisational restructure of Verification Services, review of wider facility issues by senior management and other work priorities of standards teams.
o Some work has been carried out to amend seed testing protocols to test for the presence of genetically modified seed in plant species imported for sowing that have commercial varieties of genetically modified seed. Facility and HSNO approval management
o Initiated a customer centricity programme with facility stakeholders to determine adequacy of service, understanding of mutual expectations and prepare for future stakeholder needs.
o Initiated a project to consolidate processes, workflow and criteria for approval, suspension and cancellation of facilities and operators across relevant parts of MPI
o Revisited the interagency work to better align regulatory and operational activities related to zoo containment facilities
o As was the case in 2015/16, MPI has spent considerable time and resources in 2016/17 managing the biosecurity and HSNO issues associated with Kamo Wildlife Sanctuary and ensuring containment and health and safety is maintained. Kamo Wildlife Sanctuary remains under a Compliance Order and this will continue well into the 2017/18 year. Training
o One two day training/refresher course was run for containment verifiers to cover a variety of matters relating to facility inspection, compliance of approvals and decision consistency
o Two new organism enforcement officer training/refresher courses were held
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o One training workshop was run with Plant and Food Research staff at Mount Albert, Auckland, to deal specifically with basic understanding of facilities, new organisms and unwanted organisms management
o MPI has recruited two cohorts of new quarantine inspectors during the 2016/17 year. Both cohorts (approximately. 70 staff) have received ½ day workshop training on the Act, facilities and containment. Other
o Further advanced the pilot programme to better align operational activities for biosecurity/new organisms enforcement and health and safety with WorkSafe New Zealand
o MPI and EPA Legal teams have engaged throughout the 2016/17 year to further clarify understanding and interpretation of the Act requirements
o Completed a Manual Expectations Document for all facility operators. This document describes in considerable detail the material that should be included in facility manuals. Inspection and enforcement activities planned for 2017/18 21. The major focus areas of MPIs New Organism Enforcement Programme (NOEP) for 2017/18 will be in the following areas::
Establishing and embedding the work programme and key objectives of the new Biosecurity Team in Verification Services.
Improved integration of enforcement activities across MPI, particularly as a result of the formation of the new Biosecurity Team in Verification Services.
Consolidation of databases to better provide for real time reporting and monitoring.
Extension of the customer centricity programme.
Specific activities proposed include the following:
Run a workshop for facility stakeholders on internal auditing
Progress the review of the MoU and Operational Agreement between MPI and the EPA
Run at least one new organism enforcement officer training/refresher course
Run a training course for containment verifiers/technical traveling supervisors relating to containment facility and HSNO approval verification
Build capability and capacity in PC3-level facility inspection
Progress work on streamlining the regulatory framework for zoo animal enforcement relating to containment, animal welfare and health and safety through the reconvened interagency forum
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Work with the EPA to review the information provided by MPI and determine if this is meeting EPA’s needs 22. During 2017/18, MPI intends to have the following arrangements in place with other agencies for HSNO compliance and enforcement:
Informal arrangement with the Ministry for Business, Innovation and Employment and WorkSafe New Zealand for matters relating to the intersection of health and safety with containment. This is now extended to some activities related to operational alignment at zoos
Informal arrangement with the Department of Conservation for matters relating to new organisms and the Convention in Trade in Endangered Species
Information arrangement with the Ministry of Health relating to new organisms and human pathogens
Information arrangement with the Ministry for the Environment relating to regulatory matters with new organisms and the Act.
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WorkSafe New Zealand
23. WorkSafe New Zealand (WorkSafe) is New Zealand’s work health and safety regulator and is responsible for enforcing workplace health and safety related legislation. WorkSafe also has enforcement responsibilities under the Act in workplaces.
24. WorkSafe also incorporates Energy Safety, who are responsible for enforcing the Act “in, on, at, or around any gas distribution system, gas installation or gas appliance”. In previous year’s reports, Energy Safety enforcement of HSNO has been reported separately, but has been combined this year into WorkSafe’s report.
25. The approach to reporting WorkSafe’s enforcement activities for this reporting period is slightly different as it’s been focused on answering the question “What has WorkSafe New Zealand done in the last financial year (2016/17) regarding its section 97 hazardous substances enforcement responsibilities?”.
26. Over the past four years the workplace landscape has changed significantly. The Government introduced a new legislative framework in 2013 and invested in a new regulator, with responsibility, among others, to provide more effective management of hazardous substances in the workplace. Since it was established in December 2013, WorkSafe has been developing its specialist capability in all areas, including hazardous substances. This will continue to be an emphasis for 2017/18, ahead of the transfer of hazardous substances workplace controls to the Health and Safety at Work (HSW) Act in 2017.
27. In 2016/17, WorkSafe begin to integrate its operational and monitoring frameworks, including how it reports information, so that data are available about hazardous substances whenever they are identified as a relevant factor.
Assessment of agency performance 28. In 2016/17, WorkSafe spent considerable time preparing to implement the Act and HSW Hazardous Substance (HS) Regulations which come into force on 1 December 2017. This included working alongside the Ministry of Business, Innovation and Employment to review policy papers, drafting specific HSW HS Regulations, conducting a provision by provision review of the draft HSW HS Regulations, and responding to queries from the Parliamentary Counsel Office and addressing submitter’s comments.
29. While some parts of WorkSafe’s 2016/17 report is not comparable to the data reported in 2015/16, some aspects are, such as the number of HSNO specific workplace assessments which are undertaken. In 2016/17, WorkSafe undertook 2,533 assessments with a hazardous substance focus, which is a decrease from the 2015/16 year when 3,104 assessments were undertaken. The number of HSNO investigations arising from a workplace assessment went down from 14 in 2015/16 to 12 in 2016/17 as well as the number of enforcement actions taken from 331 in 2016/16 to 225 in 2016/17. The number of prosecutions have remained unchanged.
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WorkSafe’s role and HSNO Integration 30. Prior to the introduction of the Health and Safety at Work Act 2015, HSNO was treated by WorkSafe as a separate focus area. However, the legislative change underway moves the management of hazardous substances workplace controls from the Act to the new Health and Safety at Work Act (HSW). As a result, hazardous substances are identified as a secondary focus area, and fully integrated into all workplace assessments where hazardous substances are a relevant workplace risk.
31. WorkSafe advise that a major focus in 2016/17 was preparing to implement the EPA Notices which come into force on 1 December 2017. Alongside having responsibility for the safe use of hazardous substances in the workplace under HSW WorkSafe will also be enforcing ecotoxic and disposal controls in the workplace under HSNO.
32. WorkSafe is also taking the opportunity to consider its responsibilities for these tasks as part of its approach to incidents involving hazardous substances, and situations where they are notified by Fire and Emergency New Zealand of incidents involving hazardous substances
33. Two types of Safe Work Instruments (SWI) have been drafted and are being consulted on:
SWIs that are intended to replace certain provisions of HSNO codes of practice;
SWIs that are intended to continue additional requirements imposed on substances already approved by the EPA
34. A key focus in 2016/17 was strengthening the relationship between WorkSafe and the EPA through the development of a new Memorandum of Understanding (MoU) between the two agencies. The MoU will enable the two agencies to work more closely together to protect environmental and health and safety outcomes across the country.
Activities for 2016/17 Number of Workplace Assessments 35. WorkSafe takes a proactive approach to health and safety assessments. An assessment involves an inspector visiting a workplace to assess how health and safety risks are managed and evaluate worker participation practices, with the aim of achieving sustained compliance through education, engagement and enforcement.
36. WorkSafe focuses the majority of its assessment efforts on priority focus areas. These include manufacturing, agriculture, construction, forestry, and adventure activities. Each assessment is assigned a priority focus area (if applicable) and one or more secondary focus areas. HSNO is one of the secondary focus areas that can be selected. In this report, a HSNO assessment refers to an assessment which had HSNO identified as a secondary focus area.
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The number of HSNO assessments undertaken in 2016/17 is shown by industry below:
HSNO specific assessments Industry
Accommodation and Food Services 28 Administrative and Support Services 6 Agriculture, Forestry and Fishing 1,113 Arts and Recreation Services 27 Construction 149 Education and Training 9 Electricity, Gas, Water and Waste Services 52 Financial and Insurance Services 1 Health Care and Social Assistance 12 Information Media and Telecommunications 1 Manufacturing 699 Mining 0 Other Services 135 Professional, Scientific and Technical Services 13 Public Administration and Safety 13 Rental, Hiring and Real Estate Services 11 Retail Trade 195 Transport, Postal and Warehousing 39 Wholesale Trade 25 Not Elsewhere Included 5 Total 2,533
Number of Workplace Notifications
37. For the purposes of this report, notifications are defined as notifiable event notifications. These notifications include: notification of death (which is different to confirmed workplace fatalities, notification of death includes events that are reported to WorkSafe but may turn out to not be work- related or outside WorkSafe’s jurisdiction), notification of notifiable injury or illness, notification of notifiable incident
38. The table below shows the number of HSNO related notifications received by WorkSafe in 2016/17:
Notifiable Injury Classification Death Notifiable Event Total or Illness
Contact with chemicals 9 1 10
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Escape of gas or steam 2 115 117
Escape of pressurised substance 5 5
Escape, spillage or leakage of the 3 48 51 substance
Gas detection system failure 1 1
Implosion, explosion or fire 1 12 13
Inrush of water, mud, or gas in 1 1 workings in an underground excavation or tunnel
Serious burn 13 13
Serious eye injury 11 11
Unapproved compressed air filler 1 1
Serious infection 1 1
Total 2 39 183 224
39. The Energy Safety team were informed of 41 gas related accidents and incidents in 2016/17. Eighteen of these were considered to meet the threshold of an accident under section 17 of the Gas Act. They also received 33 reports of unsafe gas installations in 2016/17, 12 of which were notifiable under regulation 10 of the Gas (Safety and Measurement) Regulations that met the definition of “immediately dangerous” Inspections of Major Hazard Facilities 40. The Major Hazard Facilities team is responsible for enforcing the Health and Safety at Work (Major Hazard Facilities) Regulations 2016 (MHF Regulations). These Regulations apply to approximately 130 facilities that hold significant quantities of hazardous substances. The MHF Regulations impose additional duties to those that apply under HSW Act.
41. Inspectors visit facilities to confirm compliance and assess whether all reasonable steps are being taken to reduce the risk of a major incident happening. The number of inspections conducted in 2016/17 is shown below:
Number of Site Type Inspections
Bulk Storage 17
Chemical Processing 12
Explosives 3
Gas Storage 7
Geothermal – Power Station 3
Manufacturing 21
Petroleum: Production 3
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Storage/Logistics 8
Total 74
Energy Safety Audits 42. The Energy Safety team administers the Gas Act 1992 and the Electricity Act 1992. The Energy Safety team performs audits of sites which may be reactive in response to complaints or accidents or proactive through identification of possible non-compliance via a risk analysis. The number of audits performed by the Energy Safety team in 2016/17 is shown below:
Number of Site Type Audits
Physical audits of fixed premises 6
Audits of caravan suppliers 4
Desktop audits of gas fitting certification for premises 40
Total 50
Investigations 43. Investigations are typically a response to a notified event or incident. Investigations may be carried out to determine the causes of harm in the workplace, whether action has been taken or needs to be taken to prevent recurrence or where compliance or enforcement action (including prosecutions) may be required. The number of HSNO-related investigations commenced in 2016/17 is shown below:
Number of Classification Investigations
Concern regarding chemicals 2
Concern regarding elevated levels of hydrocarbons 1
Concern regarding gas bottle safety 3
Contact with chemicals 1
Escape of gas or steam 2
Escape, spillage or leakage of the substance 2
Serious eye injury 1
Total 12
Notices Issued 44. HSNO focused notices have been defined as notices from assessments that had HSNO assigned as a secondary focus and all HSNO Compliance Orders from both assessments and investigations. There may be more notices which are HSNO related but WorkSafe were unable to identify these from their data extracts.
45. The table below shows the type of notices WorkSafe issued in 2016/17, where formal enforcement action was taken to address HSNO non-compliance at a site as a result of an assessment or
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investigation. Note WorkSafe has a range of enforcement tools but the table does not capture all of these. Directive letters, for example, are not captured or reflected in the table below:
HSNO HSWA HSWA Industry Compliance Improvement Prohibition Total Order Notice Notice
Accommodation and Food Services 1 1
Administrative and Support Services 3 3
Agriculture, Forestry and Fishing 45 13 3 61
Arts and Recreation Services 1 1
Construction 2 4 1 7
Education and Training
Electricity, Gas, Water and Waste Services 5 1 6
Financial and Insurance Services
Health Care and Social Assistance 1 1
Information Media and Telecommunications
Manufacturing 64 31 6 101
Mining
Other Services 8 2 4 14
Professional, Scientific and Technical Services 1 1
Public Administration and Safety
Rental, Hiring and Real Estate Services
Retail Trade 9 3 1 13
Transport, Postal and Warehousing 10 1 11
Wholesale Trade 1 1
Not Else Where Included 3 3
Total 155 53 17 225
46. The table of notices does not include notices issued by the Major Hazard Facilities or Energy Safety teams. The notices issued by the Major Hazard Facilities team in 2016/17 are shown below:
Site Type Number of Notices
Bulk Storage 1
Chemical Processing 3
Explosives 1
Manufacturing 5
Petroleum: Production 1
Total 11
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47. In the same period the Energy Safety team issued 31 warnings and five infringement notices. It also made four referrals to the Plumbers, Gasfitters and Drainlayers Board. Prosecutions 48. Two WorkSafe prosecutions under the Act that were started in the 2015/16 year are still ongoing.
49. A further two WorkSafe HSNO prosecutions were taken in 2016/17. These prosecutions had a charge date between 1 July 2016 and 30 June 2017. Of these, one prosecution is ongoing and one has been disposed (sentenced).
50. The disposed (sentenced) case related to Kiwi Nails and Spa Limited which was sentenced under sections 109(1)(e)(i) and 114(1) of the Act after the defendant failed to comply with a control on the use of a hazardous substance, namely methyl methacrylate (MMA). MMA is an approved substance under HSNO, subject to the control that it is not used as a component or ingredient in any cosmetic product because of the adverse health effects it can have on those who come into contact with it or who inhale its fumes. MMA was found in the liquid used to create the acrylic finger nail finish. The defendant pleaded guilty and a fine of $13,500 was imposed. Intentions for 2017/18 WorkSafe’s hazardous substances-related intentions for 2017/18 are set out below.
51. WorkSafe will continue to prepare for, implement and embed the HSW HS Regulations. This work will include:
Continued review and development of guidance. A number of guidance products are expected to be complete in October 2017 including an updated Practical Guide, an Interpretive Guide to the changes, Emergency Management Flipchart, and eight quick guides on key areas.
Finalising the two drafted SWIs. At the time of writing, WorkSafe is receiving submissions which will be analysed before the proposed SWIs are finalised and sent to the Minister for Workplace Relations and Safety for consideration.
Data capture to record the number of enforcement actions taken in areas covered by the two SWIs.
Continued delivery of communications including monthly e-newsletters, articles and columns in industry newsletters and an online/radio marketing campaign.
Continued operational policy development, as needed.
Continued training of inspectors.
52. Once the HSW HS Regulations are in force the majority of WorkSafe’s hazardous substances enforcement is expected to be carried out under HSW.
53. WorkSafe intends to continue to deliver its compliance and enforcement activities, including assessments, investigations, inspections and Gas Act audits. WorkSafe will use regulatory
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intelligence to target its resources and maximise its impact. WorkSafe will continue implementation of Healthy Work – WorkSafe’s ten-year Strategic Plan for Work-Related Health. Healthy Work identifies airborne contaminants and hazardous substances, as prioritised risk areas for action between 2016 and 2019.
54. WorkSafe intends to continue to build the competence and capability of its workforce and will increase the number of HSNO Enforcement Officers to 190 by mid-December 2017. It has appointed six hazardous substances inspectors who are working in its Technical Programmes and Support team. The Energy Safety team intends to retain two warranted officers (warranted in Class 2 substances) in 2017/18.
55. WorkSafe also expect to appoint a further eight inspectors trained in HSNO and train 259 inspectors in the HSW HS Regulations.
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Ministry of Health
56. The Ministry of Health (MoH) is responsible for enforcing of the Act “where it is necessary to protect public health”.
57. The MoH undertakes hazardous substances policy and regulatory work with the objective of promoting or maintaining safe and healthy environments to protect people, including at-risk communities, from hazardous substances. It also contracts frontline service delivery, and manages incidents and activities that come under the Act, such as asbestos and contaminated land. EPA’s assessment of agency performance 58. The MoH has delivered a programme of proactive and reactive initiatives to manage public health risks from a wide range of hazardous substance exposures. Given the nature of HSNO enforcement, MoH is generally not the lead agency but rather, provides a supporting role. Where there is risk to public health, MoH has a lead role. Inspection and enforcement activities in 2016/17 59. The MoH contracts District Health Boards (DHBs) to deliver hazardous substances-related frontline services, which are delivered through public health unit staff, who are appointed as HSNO enforcement officers. As at 30 June 2017, there were 61 DHB-based HSNO enforcement officers and one independent contractor who has been appointed as a HSNO enforcement officer.
60. The MoH estimates that the time spent on hazardous substances-related activities in 2016/17 equated to 16.85 FTEs, which was split between DHB public health unit HSNO enforcement officers (15.5 FTEs) and the MoH (1.3 FTEs). The majority of this FTE was spent on Vertebrate Toxic Agents (VTA) work and other reactive work as it arose.
61. The MoH spent 122 hours per week providing information and advice on HSNO compliance through provision of verbal advice, EPA guidance material and MoH published publications. Enquiries that were forwarded to other agencies on a regular basis included:
WorkSafe New Zealand: Workplace related HSNO injuries or events, workplace asbestos related issues
Territorial Authorities: Methamphetamine contaminated buildings, public nuisance complaints, waste disposal and asbestos
Department of Conservation: Exchange of information related to VTA activity and related topics
Regional Councils: Contaminated land, agrichemical spray drift
Ospri: Public enquiries about operational details of VTA operations
Ministry of Education: Asbestos issues related to early childhood education centres
Ministry of Health, MedSafe: Poisoning associated with the Medicines Act, for example, herbal remedies, ayurvedic medicines confirmed with elevated lead and other heavy metals,
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62. The MoH provides a 24 hours a day, seven days a week emergency management response. Hazardous substances incidents involving MoH for the 2016/17 period are shown in the following table3
Hazardous substance 2016/17 2015/16 2014/15 2013/14 2012/13
Incidents reported 69 61 71 102 47
Incidents attended 24 33 26 56 19
Incidents investigated 51 51 61 102 36
Number of HSNO 0 0 0 0 0 emergencies declared
63. The following Incidents reported, attended and investigated were diverse and included:
Asbestos-related incidents including fires and commercial buildings involving asbestos- containing materials as well as asbestos-containing material found in fill in a council reserve and renovation of council flats containing asbestos
Leakage of chemical drum
Spill of Formaldehyde in private dwelling
Spill of Mercury in private dwelling and at a school
Methamphetamine contamination of a boarding hostel and queries about domestic properties suspected to be former clan-labs referred to territorial authorities.
Natural gas leakage close to a hospital
Sulphur fire in a fertiliser plant
Non-compliant use of VTA’s
64. The following table shows enforcement action that was taken in response to reported incidents:
Actions Taken HSNO Act Health Act Brief Description of Offences
Total number compliance orders issued
Total number written 3 1080 aerial non-compliance VTA
warnings issued permit breaches
Total number verbal
warnings issued
Total number of
prosecutions taken
3 Incidents are recorded as those that caused or had potential risks to public health.
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Any other enforcement
taken (please specify)
65. The MoH has working arrangements in place with the following agencies to enforce the provisions of the Act:
EPA
WorkSafe
Ministry of Business, Innovation and Employment (Trading Standards)
Maritime New Zealand
Ministry of Primary Industries
Fire and Emergency New Zealand
Public Health Units
Department of Conservation
Territorial Local Authorities
66. A summary of activities in 2016/17 is shown in the table below:
Activity Level / nature of activity related to:
Permissions for VTAs Vertebrate A total of 412 permissions were received toxic agents A total of 399 permissions were issued (VTAs) Zero permissions were declined A total of 14 permissions were revoked A total of 24 revoked permissions where a replace permission was issued A total of 292 permissions were audited (191 desk-top audits, 101 field audits) Complaints related to use of VTAs A total of two complaints of non-compliance were received A total of two complaints were investigated
A total of 10 non-compliances were found. The most common non- compliance included baits being laid illegally and on public walkways and private property outside of the inclusion zone, failure to notify a person in the inclusion zone of bait being laid which led to a dog death, and lack of signage around inclusion zone
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Activity Level / nature of activity related to: Six complaints were received and four were investigated, with one being further investigated due to the identification of health risks. These complaints included: Spray drift Two spray drift incidents concerned herbicide spraying close to waterways.
Graphics 229 clearance applications were received materials 207 clearances were issued clearance applications There were no product recalls
Consumer Four complaints were investigated and were: products Toxic effects complaint re: fluoride in children’s toothpaste (other than Gym users concerned about the presence of asbestos in the graphic facility materials) Plumber alleged to have been ill due to exposure to unknown black liquid, referred to WorkSafe for action Cafeteria alleged to have been contaminated with fertilizer, sparking concerns about contamination of food and water No non-compliance or product recalls were reported
Asbestos Other Provided an analysis service and advice for public health staff responding to concerns and queries about non-occupational environments and provided advice and information on safe removal methods; Provided information and advice to the public in response to non- occupational asbestos issues and queries as well as advice to TAs; Responded to asbestos fires and concerns about asbestos-containing material demolitions adjacent to schools, early childhood centres and residential properties; Referred queries and complaints about occupational exposures to asbestos, and asbestos-containing materials in workplaces, to WorkSafe; Worked with WorkSafe and local council to manage the public health risks and communications arising from ACM demolitions and repairs to properties (including large commercial buildings and hospitals); participated with WorkSafe led “Asbestos Liaison Protocol”; Submission on Asbestos Code of Practice. Emergency and incident preparation Supported Fire and Emergency NZ’s implementation of its hazmat response system; Completed the national hazmat response plan following consultation with Fire and Emergency NZ, National Hazmat Coordination Committee, and public health units; Provided advice on managing public health risks during large rural and bush fires when required; Provided advice to Police re health effects of tear gas residues to residents of dwellings after its use in Police raids; Participated in fuel spill exercise at Auckland Airport; participated in hazmat response exercise for possible spray drift or liquid/gas spill.
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Activity Level / nature of activity related to: Included hazardous substances responses in all border public health emergency response plans; Included emergency responses in hazardous substances foundation and refresher training, implemented internal training on hazmat responses; Discussed hazardous substances issues at civil defence and emergency management committee meetings; Actively participated on local hazmat coordination committees: attended meetings, exercises, and stakeholder groups, call-outs and debriefs; Provided annual training for on-call HPOs on hazmat incident responses. Environmental contamination Worked with councils to improve notification and management of contaminated land; Worked with MfE, Ministry of Education, DPMC on contaminated soil concerns raised by GNS; investigation by PHU did not identify concerns in schools included in study Submitted on contaminated land issues in resource consent applications where applicable; submitted on NES for Contaminated Land; Liaison with WorkSafe, regional council and community regarding resource consent application to use methyl bromide (declined by the Environment Court) Advised on a site risk assessment for an old bowling green being used as community garden; Involved in a risk communication exercise involving elevated levels of arsenic in soil in residential property Liaison with MfE on Contaminated Land National Environmental Standards and proposed review. Methamphetamine laboratories Participated in Standards New Zealand development of standard including high demand from media, public, landlords and agencies for advice on property remediation; Participated in local Methamphetamine Working Groups with council and other agencies; Responded to requests for information e.g. where to get tests done; interpreting results and post clean-up results. Other Advised on hazardous substances and products given as required, e.g. mercury, cosmetic products, use of substances in public places, storage of hazardous substances in the home; Submitted on hazardous substances issues through the DHB Risk Management Committee; Responded to OIA requests, Ministerials, Parliamentary Questions; Commented on HSNO notices, and hazardous property controls
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Inspection and enforcement activities planned for 2017/18 67. MoH and Public Health Units are not anticipating significant changes during 2017/18 and will continue to undertake proactive and reactive work as appropriate. However, continuing fiscal pressures mean that activities will be prioritised according to public health risk. The impact of regulatory changes and other priority activities for health protection staff may also require some re- prioritisation of activities (for example, commercial UV tanning devices, infectious diseases, Havelock North Inquiry).
68. The MoH expect to make the following improvements within fiscal restraint:
the EPA’s employment of enforcement officers may strengthen the overall management of the hazardous substances regime and improve national coordination and responsiveness;
changes to the Act and implementation of the HSW Act may improve liaison with WorkSafe officers at the national and local level; notification of diseases to WorkSafe that the MoH reasonably believes arises from work;
the Fire and Emergency New Zealand Act 2017 has strengthened Fire and Emergency New Zealand’s hazmat response system; the role of public health officer may reduce as a result;
the maintenance (and where necessary re-establishment) of Hazmat Coordination Committees (including the FENZ, WorkSafe and councils) will strengthen local relationships and responses to hazardous substances fires and incidents;
public health units plan to review and/or develop or ongoing review of standard operating procedures with their councils to define roles and responsibilities for asbestos responses;
public health units are planning to undertake or are already undertaking internal audits of processes; are improving/reviewing processes, internal notification systems and procedures; are improving data management, reporting, professional development and management systems; on-going review of SOPs;
public health units have a number of initiatives identified to improved processes and systems for issuing and auditing VTA permissions and to strengthen relationships with other agencies and Maori especially with regard to a major aerial 1080 operations, to review and refine VTA communication strategies and processes, to streamlining the data gathering process for reports, and to address recommendations from the EPA audits.
public health units are planning to contribute to HSNO related policy submissions to influence processes via an upstream approach;
public health units plan to continue their engagement in a range of intersectoral groups such as asbestos working groups, Regulatory Managers meeting and the New Zealand Institute of Environmental Health;
Ongoing awareness raising with GPs of the HSDIRT reporting system will continue to improve hazardous substances injury notifications.
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New Zealand Transport Agency
69. The New Zealand Transport Agency (NZTA) has the power to enforce the Act in or on any motor vehicle, on any road, in or on any rail vehicle, or on any railway line”.
70. Land Transport Rule: Dangerous Goods 2005 is consistent with the transport requirements for the transport of hazardous substances by road or rail, set under the Act. The rule sets out the requirements for the safe transport of dangerous goods on land. NZTA is responsible for developing and maintaining this rule.
71. NZTA does not enforce HSNO directly, but continues to fund New Zealand Police to perform this function through its Commercial Vehicle Safety Team (CVST). EPA’s assessment of agency performance 72. While the New Zealand Transport Agency has the power to enforce the Act “in or on any motor vehicle, on any road, in or on any rail vehicle, or on any railway line”, the NZTA does not enforce HSNO directly and while the CVST of the NZ Police will respond to rail incidents involving hazardous substances, it is entirely reactive. This means that there is no proactive regulation of rail. . New Zealand Police
73. The New Zealand Police (Police) is responsible for the enforcing the Act “in or on any motor vehicle, on any road, in or on any rail vehicle, or on any railway line”. EPA’s assessment of agency performance 74. CVST provides a good level of hazardous substance enforcement on roads through ensuring compliance with the Land Transport Rule: Dangerous Goods 2005.
75. As in previous years, CVST has one warranted enforcement officer, a situation that has existed for a number of years. Police is still looking to increase this number through joint training with WorkSafe.
Incident response 76. Hazardous substance incidents are responded to as part of the whole of Police response capability. Invariably these incidents are attended in conjunction with Fire and Emergency New Zealand. Police provide a 24 hour / 7 day incident response capability but do not collect information specifically on the number of HSNO-related incidents.
77. CVST provide a 24 hour, seven day a week emergency management response to incidents. The incidents attended during 2016/17 were:
Date Incident Action 30/01/2017 Stationary truck and trailer waiting to turn was rear ended by a Chem Written warning Couriers truck and trailer. Various chemicals were spilled on the road
11/06/2017 1,000 litre IBC fell off a north bound truck and trailer. About 400 litres Infringement of acutely toxic substance entered waterway Offence Notice issued to driver
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for insecure dangerous goods
24/04/2017 Ferric Chloride drums spillage Nil
Inspection and enforcement activities in 2016/17 78. CVST do not currently have HSNO warranted officers as the warrants expired in 2003 but will still undertake hazardous substance inspection and enforcement activities. It enforces hazardous substance transport requirements indirectly through enforcement of the Land Transport Rule: Dangerous Goods 2005 which, for the most part, has equivalent provisions to the Act with respect to the transportation of hazardous substances.
79. CVST do not conduct proactive hazardous substance inspection and enforcement of rail vehicles, but will respond to rail incidents involving hazardous substances.
80. CVST spent a total of 48 hours per week on HSNO inspections and enforcement and spent a total of 50 hours per week on the provision of verbal advice
81. A summary of CVST activities for 2016/17 is provided below:
Activity Number Vehicles inspected (under the Dangerous Goods Rule)4 6,777
Infringement notices issued (under the Dangerous Goods Rule) 452
Vehicle inspections were undertaken either randomly or targeted. Random inspections concentrated on ensuring compliance against load security regulations and hazardous substances product being transported. Targeted inspections were undertaken as the result of intelligence products directing staff deployment. The vehicle inspection also included general freight carriers.
82. In addition to CVST activities, Police play an important role in a number of other areas relating to hazardous substances. Police declare HSNO emergencies when required to permit emergency powers to be used to:
Clear methamphetamine labs Utilise New Zealand Defence Force assets to assist Police to remove explosive hazards.
83. A summary for 2016/17 is provided below:
Activity related to: Level / Nature of Activity Methamphetamine labs 21
Bomb response (in conjunction with the New 19 Zealand Defence Force, e.g. dealing with
4 Vehicles selected at random, inspections included looking for load security and product being carried correctly. Includes inspection of general freight carriers. Targeted operations are also conducted through deployment of resources using intelligence or targeting risk areas and risk times.
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unexploded ordinances reported by the public)
84. In 2016/17, CVST was an active member of all Hazardous Substance Technical Liaison Committees (HSTLC) around the country and intends to continue this in 2016/2017. Inspection and enforcement activities planned for 2017/18 85. Staff previously warranted as inspectors under the Health & Safety in Employment Act 1992 have completed training under the HSWA legislation. We are working together with WorkSafe in relation to update training and warranting. To date no further training has been undertaken under the Act. It is expected that this will be resolved during the 2017/18 year. Once staff have been appointed as WorkSafe Inspectors, Police will approach both WorkSafe and EPA to have these staff upskilled and appointed as HS Enforcement Officers
86. CVST inspection activity is expected to be comparable to 2016/17 and will continue to provide a 24 hour, 7 day a week emergency response to incidents.
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Civil Aviation Authority
87. The Civil Aviation Authority (CAA) is responsible for enforcing the Act “in or on aircraft”, which is primarily achieved through its responsibilities under the Civil Aviation Rules.
EPA’s assessment of agency performance
88. EPA consider the CAA to be effectively managing the risks associated with hazardous substances in the aviation industry as a result of all reported incidents being assessed for levels of compliance as well as undertaking inflight audits and inspections. The CAA currently has one HSNO warranted officer, with a further two staff members to be warranted in 2017/18.
Incident response
Hazardous substances incidents recorded in 2016/17:
2016/17 2015/16 2014/15 2013/14 2012/13 2011-12
Incidents reported 5 16 5 7 12 8
Incidents attended 0 0 3 2 0 1
Incidents investigated 0 0 0 0 1 3
Number of HSNO 0 0 0 0 0 0 emergencies declared
89. Reported incidents concerned agrichemical and fertiliser spray drifts. All incidents are assessed by making preliminary enquiries to establish levels of compliance and whether further investigation is necessary. Assessments are based on CAA’s assessment and investigation policy.
90. The HSNO non-compliances (5) related to the non-notification of spray operations. All operators were informed of notification requirements.
Inspection and enforcement activities in 2016/17 91. The CAA undertakes enforcement of the Act through inspections of dangerous goods cargo, audits of agrichemical operators and in-flight inspections and audits.
92. In 2016/17, CAA spent a total of 50 hours on hazardous substances and dangerous goods related activity.
93. A summary of activities in 2016/17 is provided below:
Activity Number Agricultural operator audits / inspections 0
HSNO related assessments and complaint response 5
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In-flight inspections including checks on compliance with the dangerous 10 goods provisions of CAA Rules
Dangerous goods packaging approvals issued (ref. CAA Rules) 75,7565
Dangerous goods training courses reviewed (ref. CAA Rule 141) 1
Dangerous goods inspections carried out ( ref. CAA Rule 92) 10
HSNO non-compliances found 6
Total 75,788
Inspection and enforcement activities planned for 2017/18 94. In 2017/18 the CAA expects to;
Audit or inspect an estimated 30 agricultural operators, which includes HSNO activity
Spend a similar amount of time on hazardous substances and dangerous goods activity as in 2016/2017.
95. CAA does not have a quota of aircraft to inspect per annum. It undertakes a risk assessment of aircraft operators and this determines any subsequent action.
96. A further two CAA enforcement officers will be warranted in 2017/18 following completion of the required work supervision phase of their training.
97. HSNO activity will now be integrated alongside the HSW Act as the result of a project that was undertaken in 2015/16 to integrate hazardous substance compliance activity alongside health and safety regulation. It is expected that this integration will result in improved process for the Civil Aviation Authority.
5 Dangerous Goods packaging approvals now account for approvals issued by the Aviation Security Service, previously it has only accounted for those issued by CAA.
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Maritime New Zealand
98. Maritime New Zealand (MNZ) is responsible for enforcing the Act “in or on any ship” and manages risks associated with the transportation of hazardous substances by sea. This is achieved through its responsibilities under Maritime Rule Part 24A and the International Maritime Dangerous Goods Code (IMDG).
99. WorkSafe is responsible for hazardous substance enforcement at ports as a ‘place of work’. EPA’s assessment of agency performance 100. MNZ addresses HSNO through its audit and inspection work conducted through the Maritime Transport (MT) Act. MNZ does not capture specific information on HSNO activities, aside from the number of vessels inspected for legislative compliance against the Act, the IMDG Code and the MT Act as well as the number of warranted HSNO officers on staff. This makes it difficult to determine whether the level of activity involving HSNO has been adequate.
101. The EPA are satisfied that MNZ are enforcing the provisions of the Act when inspecting vessels and are pleased to see that the number of inspections are consistent. Inspection and enforcement activities in 2016/17 102. MNZ primarily undertakes enforcement of the Act requirements by ensuring compliance with the International Maritime Dangerous Goods (IMDG) Code and Maritime Rule Part 24A, with targeted inspections of both foreign and New Zealand registered vessels.
103. The Code and Rule Part 24A are recognised as being the standard for the safe transportation of hazardous substances by sea. Rule Part 24A covers only dangerous goods carried as cargo and does not apply to hazardous substances carried on a ship that form part of the equipment or stores required for its navigation, safety, maintenance or routine operations.
104. As at 30 June 2017, MNZ had two hazardous substance enforcement officers and 28 Maritime Officers, formerly called Maritime Safety Inspectors.
105. MNZ spent approximately 40 hours per week on HSNO, MTA and IMDG specific activities. However, as HSNO and DG issues arise across many different activities, for example, compliance, pollution response, legal, policy, training, the 40 hours is not necessarily specifically assigned to hazardous substances or dangerous goods.
106. This year MNZ undertook intensive HSWA inspection campaigns in the high risk areas of stevedores loading logs on foreign ships and with commercial maritime operators. The issues they identified included the use of crane lifted work platforms loaded with Class 3 substances without appropriate controls (hazardous atmosphere zones and sources of ignition were present, no SDS, incorrect signage, lack of training.)
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107. MNZ also undertook more than 400 HSWA assessments with commercial operators. This included two targeted inspection campaigns with working vessels being boarded at sea in the Marlborough Sounds and the Coromandel. During these inspections, hazardous substances or dangerous goods issues were addressed and education was provided to the operators about the issues that are likely to be covered by the proposed 2017 HSWA and HS regulations. Operators were advised to include a HS inventory in their Maritime Transport Operator Plans (MTOP), and to ensure the appropriate procedures for handling, storage and/or separation distances were implemented.
108. MNZ also participated in “shadowing activities” with enforcement officers from the EPA, the purpose of which is to improve the hazardous substance knowledge of Maritime Officers.
109. MNZ provides a 24 hours / 7 days a week emergency response capability.
110. In its 2015/16 intentions report, MNZ stated that it planned to inspect 690 vessels for HSNO/IMDG/MTA compliance for the 2016/17 year. It exceeded this target, with over that number of vessels being inspected.
111. A summary of HSNO / IMDG activities in 2016/17 is provided below;
Activity Number
Planned maritime operations audits for 2016/176 >400
Foreign vessel inspections7 150
Flag domestic vessel inspections 0
Small domestic vessel inspections >200
Total number of HSNO incidents 7
HSNO non-compliances found 0
HSNO emergencies declared 0
Inspection and enforcement activities planned for 2017/18 112. MNZ plans to inspect 350 vessels for HSNO/IMDG/MTA compliance in 2017/18. Vessels will be selected for audit if, upon entry to MOSS8, they are found to be due for an audit. They will be assessed for compliance against dangerous goods legislation (domestic vessels) and IMDG (international vessels).
113. MNZ are not looking to increase the number of HSNO warranted enforcement officers in 2017/18
6 MNZ audits domestics commercial vessels following a risk-based assessment that priorities the audit frequency 7 Foreign-going vessels were also inspected according to internationally determined targeting factors, which includes IMDG compliance 8 MOSS is the Maritime Operator Safety System – the regulatory framework for the domestic commercial fleet
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Territorial Authorities
114. A territorial authority is defined under the Local Government Act 2002. There are 67 territorial authorities consisting of 12 city councils, 53 districts, Auckland Council, and Chatham Islands Council9.
115. Territorial Authorities (TAs) are responsible for enforcing the Act in or on any premises situated in their district that are not already the responsibility of another enforcement agency. In effect this means TAs have enforcement responsibility for the Act in public and non-work places.
116. The HSNO Act also provides that TAs may enforce HSNO provisions in or on any premises which are the responsibility of another enforcement agency, where the TA is in or on the premises for the purposes of enforcing the provisions of the RMA 1991.
117. In compiling this report, EPA surveyed all 67 TAs. Responses were received from 60 TAs, the same number as last year. The seven TAs which did not respond were; Far North District Council, Gore District Council, Hurunui District Council, Kaikoura District Council, Matamata-Piako District Council, Otorohanga District Council, and Selwyn District Council. EPA’s assessment of territorial authorities’ performance 118. Following on from the ‘engagement” pilot workshop with TAs from the Northland Region in November 2016, the EPA ran a series of “Territorial Authority Workshops” across the country in early 2017 which were well attended. The purpose of these workshops were to understand the issues being experienced by TAs when enforcing hazardous substances legislation. The EPA has collated the information from these workshops and plan to progress a programme of work to increase TA performance regarding their s 97 enforcement.
119. The overall results from the 2016/17 survey confirm a wide variation in the degree to which TAs are engaged in hazardous substance enforcement activity. The TAs that are most involved tend to be city councils which are able to retain a core number of warranted HSNO enforcement officers who have the HSNO knowledge and experience to enable them to carry out enforcement activities. Smaller TAs have more limited resources so staff have to cover a number of functions and appear to find maintaining currency of skills and knowledge a challenge, particularly as they don’t have a lot of incidents.
120. TAs have a broad definition of responsibility under HSNO and, as such, building and maintaining the necessary level of knowledge and expertise is a challenge.
121. There remains however, wide variability in the status of local Hazmat Coordination Committees, from there not being one, to an absence of knowledge of one existing. Fire and Emergency New Zealand chairs these and therefore, has a pivotal role in the establishment and operation of these
9 Statistics New Zealand website; http://www.stats.govt.nz/methods/classifications-and-standards/classification-related-stats-standards/territorial- authority/definition.aspx
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committees. There are gaps across the country where Hazmat Coordination Committee participation is lacking.
122. A wide variety of issues were raised by TAs this year. Two issues that have been previously raised relate to the test certifiers’ database, the reliability of the data it holds and the time taken to extract data from it, as well as the availability of training in the management and enforcement of hazardous substances. Some councils believed that EPA needed to take more of a lead in HSNO through providing training and having readily accessible information about hazardous substances. One council considered that HSNO was a highly technical specialist area, for which there was little to be gained through training when there was no substantial activity. Inspection and enforcement activities in 2016/17
123. Collated data from the 60 TAs that responded to the survey shows:
A total of 29 councils had HSNO-warranted enforcement officers on their staff during 2016/17, a slight decrease from the 31 reported in the 2015/2016 year A total of 31 councils had no enforcement officers on their staff, with 18 of these TAs advising that they contracted out HSNO enforcement functions to a third party A total of 13 councils did not have HSNO-enforcement capability, either on staff or contracted out, a slight increase from 12 the previous year. Of those with no enforcement capability, seven indicated they plan to rectify this in 2017/18. These councils were; Carterton District Council, Christchurch City Council, Kaipara District Council, Rotorua District Council, Waitaki District Council, Wanganui District Council, and Westland District Council. This figure represents a decrease from the 10 councils who indicated they would rectify this for the 2016/17 reporting year. However, it should be noted that Carterton District Council, Christchurch City Council, Kaipara District Council, Rotorua District Council, and Westland District Council reported the same intention last year. A total of six councils indicated that they did not have enforcement officers on staff, did not contract out their enforcement capability and did not intend to increase the number of HSNO officers on staff. They were; Chatham Islands Council, Kapiti Coast, Manawatu District Council, Opotiki District Council, Rangitikei District Council and Tararua District Council. This figure represents an increase of four councils.
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Of those TAs that responded to the survey, 22 reported spending more than an hour per week on HSNO activities, (9 City Councils; 13 District Councils)
The total number of incidents was 96 with 78 of these being attended and 58 investigated. The majority of these incidents involved chemical spills, pollution incident response, LPG gas bottle leaks and fires, and traffic accidents involving hazardous substances. The figures represent a substantial decrease from the previous year, when TAs attended 279 incidents involving hazardous substances and investigated 171 of them.
A total of nine City Councils and 16 District Councils, attended and investigated these incidents, bringing the total to 25 TAs.
TAs that had engaged in HSNO compliance and enforcement activities advised that the majority was through RMA activities.
A total of 43 TAs had 24 hour/seven day a week emergency response arrangements and 4 had eight hour/five day a week arrangements. 13 had no emergency response arrangements.
No emergencies were declared under the Act in 2016/17.
A total of nine TAs made up of (four city councils and five district councils) reported carrying out 149 compliance inspections and investigations, signaling a 17 percent increase from the previous year, when 127 compliance inspections and investigations were undertaken. The majority of the work was undertaken by the Dunedin City Council and Tauranga City Council.
Of the 149 inspections and investigations undertaken, 25 resulted in verbal warnings being issued.
A total of 25 TAs (eight City Councils and 17 District Councils) reported being involved in their local Hazmat Coordination Committee. These figures represent no change from 2015/16. Of the 25, only 16 actually attended meetings, with 15 reporting that they found them useful for networking, information sharing and establishing relationships between agencies. One council reported that their local Committee was not working for them.
Only 11 TAs reported having reviewed their District Plans’ hazardous substances provisions in 2016/17. Inspection and enforcement activities planned for 2017/18 124. A total of 20 TAs stated they intend to increase the number of warranted HSNO enforcement officers in 2017/18.
125. A total of 49 TAs intend to have either a 24 hour/seven day a week or eight hours/five days a week emergency response capability. This means that of the 60 TAs responding to the survey, 11 have not indicated an intention to maintain an emergency response capability.
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126. A total of 17 TAs intend to review the hazardous substances provisions in their District Plans in the next reporting period, an increase from last year.
127. A total of 43 TAs plan to be involved with Hazmat Coordination Committee, with 10 of these being City Councils.
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Regional Councils
128. Although they may exercise powers under the Act, regional councils do not have overall responsibility for ensuring that the presence of hazardous substances is enforced in particular premises. Regional councils may enforce the Act if the regional council “is in or on premises for the purposes of enforcing provisions of the Resource Management (RMA) Act 1991” or “the function, power, or duty is transferred to the regional council in accordance with section 98” (of the Act). “Those premises” are specified in the Act and include all the premises covered by central government agencies with Act enforcement responsibilities.
129. In practice regional councils’ oversight of hazardous substances, including investigations and enforcement actions, is undertaken under the RMA 1991.
130. All 11 regional councils were surveyed to inform this report. Completed surveys were received from 10 regional councils; West Coast Regional Council did not return their survey, this is consistent with the 2015/16 reporting year. EPA’s assessment of regional councils’ performance 131. It was pleasing to see a 45 percent increase in the number of incidents being reported and a 50 percent increase in the number of incidents being attended. Regional councils have much to offer the HSNO regime from a compliance perspective given their depth of knowledge and experience in regulatory affairs. EPA would like Regional Councils to see the enforcement of HSNO legislation as enhancing or complementing their RMA responsibilities. Regional councils could play a significant role in HSNO enforcement as they have considerable expertise in environmental matters. Inspection and enforcement activities in 2016/17 132. The collated data of the 10 regional councils that responded to the survey showed that
Only Taranaki Regional Council have HSNO warranted enforcement officers on staff, the same as the previous reporting year.
The remaining nine regional councils who did not have enforcement officers on staff, did not plan to contract out their HSNO enforcement function
A total of three regional councils reviewed the HSNO provisions in their regional plans
All have 24 hours per day, seven days a week emergency management response
The most frequent and routine HSNO-related activities undertaken by regional councils are incident response and investigation, compliance monitoring of sites containing hazardous substances, provision of technical advice on hazardous substances use and storage under the RMA as well as contaminated sites management and investigating spray drift complaints
The total number of incidents reported was 1065, signaling a 45 percent increase from 2015/16, with 520 of these incidents being attended. Incident response most commonly relates to agrichemical spray drifts, illegal discharge of contaminants to the environment,
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Report on enforcement of the Hazardous Substances and New Organisms Act 1996
chemical spills, burning incidents involving hazardous substances and vertebrate pest operations.
A total of eight regional councils reported non-compliance having occurred, with these being:
A truck crash on SH36 carrying hazardous substances
A leak of hazardous chemicals at an industrial precinct in Mount Maunganui
Dumping of asbestos containing material at a public site
Methyl Bromide recapture not being achieved following fumigation
Separate incidents of paint, concrete and acid being washed into storm water drain
Vehicle related oil/fuel/diesel discharge to water and/or land,
Marine related oil/fuel/diesel discharge to water and/or land
Aviation fuel spill to surface water, overspray from aerial agrichemical application
There were no emergencies declared
A total of seven regional councils reported being involved with their local Hazmat Coordination Committee and attending regular meetings.
The issues of most importance to regional councils relate too:
o Storage of hazardous substances, such as methyl bromide and phosphine which are extremely toxic but are stored with minimal security in place o Storage and use of chemicals associated with refrigeration, such as LPG and ammonia, as it appears controls are not being enforced o Uncertainly as to which piece of legislation applies in a given situation which results in a disjointed approach when multiple agencies are involved o A desire for national training by the EPA and WorkSafe to ensure the currency of HSNO knowledge is maintained Inspection and enforcement activities planned for 2017/18 133. Environment Southland, and Greater Wellington Regional Council intend to review the hazardous substances provisions of their regional plans in 2017/18.
134. All but the Hawkes Bay Regional Council and Waikato Regional Council intend to be involved in Hazmat Coordination Committee in their regions.
135. Environment Canterbury expects to make changes to their hazardous substances incident reporting system as well as provide training to increase the knowledge of their hazardous substances officer’s. The other nine regional councils have indicated that they will not be making any changes to their HSNO related activities.
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136. All regional councils intend to have 24 hours per day, seven days a week emergency management response
137. Greater Wellington Regional Council expect their proposed natural resources plan will become operational, which is expected to affect the nature or level of hazardous substance activities undertaken.
138. Bay of Plenty Regional Council, Greater Wellington Regional Council and Taranaki Regional Council all intend to partner with their local district councils to improve the delivery of hazardous substances services in their local areas.
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