The term ‘hazardous activity (or facility)’ is not defined in the HSNO Act, the HSW Act or the RMA. However, the term has commonly been used in district and regional plans to refer to activities that involve the use, storage, manufacturing and disposal of hazardous substances. However, there is wide variation on what is included as a hazardous facility in Plans.
For example, RMA have included the following as hazard activities/facilities:
- Industrial operations such as chemical warehouses, manufacturing plants or bulk storage facilities;
- Engineering businesses;
- Transport operations;
- Food production and processing facilities;
- Manufacturing plants of household appliances, industrial machinery or other products;
- Small workshops;
- Agricultural or horticultural activities;
- Activities associated with oil or gas production or storage; and
- Structures such as pipelines used for the transfer of hazardous substances like gas, oil and fuel.
If councils manage certain aspects of hazardous substances at a hazardous facility and councils plan to use the term ‘hazardous facility (or activity)’, it is important to understand how it is defined and the scope of activities it may capture. Being clear on the definition and scope of the term will help to ensure that a range of other activities involving the use of hazardous substances are not accidentally captured.
Hazardous Substances and New Organisms Act 1996 (HSNO Act)
The HSNO Act is the primary legislation designed to manage hazardous substances across their life cycle (import/manufacture, classification, packaging, transport, storage, use and disposal). The purpose of the HSNO Act as set out in section 4 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 HSNO Act is administered by the Ministry for the Environment, and implemented and enforced by the Environmental Protection Authority (EPA), which regulates the introduction and use of any hazardous substances, and also enforces any hazardous substance controls.
Every hazardous substance must have an approval under the HSNO Act. It is an offence to knowingly use, import or manufacture hazardous substances in contravention of the HSNO Act. The EPA oversees applications made under the HSNO Act to import and manufacture hazardous substances. The EPA assesses the risks to people and the environment of each hazardous substance and decides whether they should be approved for use in New Zealand. The EPA also determines what controls should be in place for approved substances to ensure any risks to people and the environment are mitigated (such as in relation to labelling, packaging, safety data sheets, content of the hazardous substances, ecotoxic and human health controls, and their disposal). The EPA is also an enforcement agency with respect to these controls and is responsible for ensuring that importers and manufacturers comply with them. The controls under the HSNO Act are substance specific and are based on the particular hazardous properties of the substance. The controls apply anywhere, anytime to a given substance classified as hazardous and do not take into account the sensitivity of the receiving environment. T
There are over 100,000 different types of hazardous substances approved for use in New Zealand ranging from explosives, pesticides, industrial chemicals, paints, fertilisers and petroleum products to household cleaners and cosmetics.
A substance is only classed as hazardous for the purposes of the HSNO Act if it meets the threshold for determining whether a substance has any one of the intrinsic hazardous properties. A threshold is the amount or concentration of a substance that is likely to cause an adverse effect on people or the environment. It is a trigger level for an effect that may require controls on the substance to meet the purpose of the HSNO Act. The thresholds for the HSNO Act hazardous properties are set out in Schedules 1 to 6 of the Hazardous Substances (Minimum Degrees of Hazard) Notice 2017. Clause 4 of the Notice states that a substance is not hazardous for the purposes of the HSNO Act unless data indicates it meets the minimum degrees of hazard for at least one of the intrinsic hazardous substance properties specified. The intrinsic properties are given classifications i.e. explosives are designated as Class 1 substances and flammable substances are classes 2 to 4. Details of these classifications can be found here.
Health and Safety at Work Act 2015 (The HSW Act)
The HSW Act gives Worksafe New Zealand the responsibility for establishing workplace controls for hazardous substances, and is the principal enforcement and guidance agency in workplaces. The main purpose of the HSW Act is to provide for a balanced framework to secure the health and safety of workers and workplaces. This legislation is supported by a range of other regulation and guidance. See the Health and Safety at Work Act 2015 for more detail.
WorkSafe’s functions include monitoring and enforcing compliance with work health and safety legislation, and providing guidance, advice and information. WorkSafe enforces controls for environmental hazards and disposal requirements for all hazardous substances in the workplace.
WorkSafe also enforces the Health and Safety at Work (Hazardous Substances) Regulations 2017 (HSW HS Regulations), and the Health and Safety at Work (Major Hazardous Facilities) Regulations 2016 (MHF Regulations) under the HSW Act.
The HSW HS Regulations apply to the ‘downstream’ manufacture, use, handling and storage of hazardous substances in the workplace. WorkSafe’s role also includes providing guidance, managing the compliance certification regime, and developing safe work instruments to set more detailed and technical rules for hazardous substances.
The MHF Regulations which came into force on 4 April 2016, mandate specific duties relating to process safety for existing and potential Major Hazardous Facilities (MHF).
MHF are defined under regulation 19 and 20 of the MHF Regulations as “workplaces that have significant inherent hazards due to the storage and use of large quantities of specified hazardous substances.” Failure to control risks associated with these facilities could result in catastrophic consequences.
For further information relation to Major Hazard Facilities in relation to the MHF Regulations, refer to the Worksafe website. For further information relation to MHF in the resource management context refer to Where land uses are incompatible.
Substances not controlled by the HSNO Act, the HSW Act or associated Regulations:
Food - Food additives are regulated under the HSNO Act before they are incorporated into food. Food is covered by food standards and the Food Act 2014
Medicines - In finished dose form. Medicines are covered by the Medicines Act 1981
Hazardous biological substances - Infectious material includes material containing micro-organisms (unless the micro-organisms are new to New Zealand).
Radioactive substances - radioactive substances are covered by the Radiation Safety Act 2016
Ozone depleting substances - the impact on the ozone layer by ozone depleting substances and their phase out are covered by the Ozone Layer Protection Act 1996. Note that any other hazardous aspects of ozone depleting substances are controlled by the HSNO Act.
Areas where RMA controls are generally not necessary:
Use of 1080 - The aerial application of 1080 is regulated under HSNO and its application is specifically allowed for under the Resource Management (Exemption) Regulations 2017. There is therefore very little value in RMA plans including controls on the use and application of 1080. Further guidance and information regarding these regulations can be found on the MfE website.
Signage - The HSNO Act includes specific requirements for signage, and what specifications this signage should meet. Signage required by other legislation and regulation should be enabled through district plans.
Tank Standards - The HSNO regulations include controls on tanks for every classification of hazardous substance used in New Zealand. These standards are designed to provide an appropriate level of protection in normal circumstances. In most cases, there is little value in RMA plans specifying tank controls.
In some locations with unusual site-specific characteristics, there may be added value in specifying additional controls. An example of this could include additional containment or leak detection measures for substances which are likely to travel extensively and are persistent in the environment (noting that petroleum plumes have been shown to seldom exceed 100m and also break down naturally) and where tanks are located on an unconfined aquifer used for drinking water supplies.
Where these additional controls are considered necessary, the plan should clearly identify what is covered by HSNO, and what the plan requires in addition to HSNO, and what locations these additional controls apply to.
Disposal and waste management of hazardous substances - Disposal of hazardous substances is covered by the disposal regulations under HSNO, which set controls on the disposal of substances based on their HSNO classification. In addition, discharge provisions in regional plans also restrict inappropriate disposal of hazardous substances. Those with roles in the waste disposal process (i.e. waste collectors, landfill operators etc) are ultimately responsible for ensuring waste they accept is disposed of appropriately in accordance with these discharge controls.
Areas regulated under HSNO Act - e.g. explosive substances, flammable substances, oxidising substances, toxic substances, corrosive substances, eco-toxic substances and compressed gases.