New hazardous substances regulations and the impending changes

The implementation of the Health and Safety at Work Act this year means that the rules and regulations that apply to the storage and transport of hazardous substances are changing. Read on to discover the what, why and how of the impending changes.

The current regime for the regulation of hazardous substances is confusing and overly complicated, with duplication and gaps across a wide range of legal instruments. The consolidation of rules and regulations and eventual simplifying of the requirements is intended to make it easier for businesses and encourage compliance. In this article we provide an overview of the new regulations which will be directly relevant to many in the supply chain.

What’s changing?

From 1 December 2017, the rules and regulations that apply to using hazardous substances at work will transfer from the Hazardous Substances and New Organisms Act 1996 implemented by the Environmental Protection Authority (EPA) to the Health and Safety at Work (Hazardous Substances) Regulations implemented by WorkSafe.

Put simply, WorkSafe will administer and enforce all requirements relevant to the use, handling, storage or manufacture of hazardous substances at work. The EPA will continue to receive applications to use hazardous substances, and to set and implement requirements for classification, labelling, safety data sheets, packaging and the protection of the environment and public health.

In addition to the new regulations, there are two new types of instruments:

Safe work instruments

These will be developed by WorkSafe for approval by the Minister for Workplace Relations and Safety. These will provide specific information and details, particularly details of a technical nature that may change frequently. For example, a number of existing codes of practice and substance-specific requirements will be recorded in safe work instruments.

EPA notices

These will contain most of the hazardous substances rules that the EPA remains responsible for – for example, environmental controls, non-workplace use and rules for importers and manufacturers.

Why the changes?

According to the Cabinet Economic Growth and Infrastructure Committee, approximately 150,000 workplaces use hazardous substances. At the moment, businesses must look to both the Health and Safety at Work Act 2015 and the Hazardous Substances and New Organisms Act 1996.

There are also 15 sets of regulations, nine transfer notices, 210 group standard approvals and around 1500 individual substance approvals which also provide rules and regulations that must be complied with. As well as having to struggle to find a clear answer from the vast array of legal paperwork, businesses must also contend with outdated standards, lack of clarity and regulatory gaps. It is hardly surprising that current compliance levels are low.

Transferring all hazardous substances requirements into one place is intended to simplify the process for businesses, increase compliance and ultimately reduce injury and death. The transfer is part of a wider policy initiative to bring all workplace controls under one regime (the Health and Safety at Work Act) to make it easier across the board for businesses to understand their obligations as to how they manage risk at work.

What are the changes?

The new regulations largely consolidate existing requirements into one place. There have been minor and/or technical changes in order to simplify or clarify the requirements to the extent possible for the short term and to codify existing good practice. A business (or ‘person conducting a business or undertaking’, or PCBU, to use the Health and Safety at Work terminology) is required to prepare and maintain an inventory of all hazardous substances used, handled, manufactured or stored at the workplace and make that inventory available to emergency workers. The new regulations prescribe a minimum set of matters to be included in any information, instruction and training provided to workers that use, handle, manufacture or store hazardous substances.

For example:

  • Information provided must include where hazardous substances are present, location of safety data sheets, and the sections of the safety data sheets that provide information on the hazards, emergency measures, storage and handling

  • Instruction and training must include the physiochemical and health hazards associated with the hazardous substances used, procedures for the safe use, handling or storage, the plant (and PPE) necessary and the actions to be taken in an emergency.

The current requirement to ensure one or more workers are trained and certified as an ‘approved handler’ of the hazardous substances in a workplace was viewed by the ministry as largely a duplication of the new information and training requirements which apply to all workers that use, handle, manufacture or store hazardous substances. The new regulations therefore remove this requirement, except in relation to explosives, vertebrate toxic agents and fumigants that require a controlled substance licence. Changes have also been made to provide clarification or to simplify existing rules. According to the Minister for Workplace Relations and Safety, these changes are not expected to impose additional costs nor require significant changes from business that are already complying with the current rules and regulations.

For example:

  • PCBUs are required to take into account prescribed considerations for the safe management of hazardous substances when carrying out a risk assessment.The new regulations also set out specific circumstances that would trigger a review of any control measures

  • The new regulations allow for the review of emergency plans by Fire and Emergency New Zealand (established on 1 July 2017) and PCBUs must have regard to any recommendation made

  • The new regulations will apply to waste products if it is reasonably likely that the waste product is a substance that meets the classification criteria for substances with explosive, flammable, oxidising, toxic or corrosive properties. However, there will be simplified requirements for the labelling of containers of hazardous waste and the matters to be included in safety data sheets.

As always, the devil is in the detail, so it will be important for the reader to review their processes against the new regulations. Even subtle changes could have an impact.

With the regulations consolidated to encourage compliance and with a new regulator focused on improving workplace health and safety generally, we expect a sharper focus on enforcement of hazardous substance rules than what may have occurred previously.

What’s next?

The transfer and consolidation of requirements relating to hazardous substances and the relatively minor amendments discussed above are the first step in a two-part process. A substantive review of the new regulations will be undertaken to ensure that the requirements are fit for purpose, as simple as possible and successful in reducing the harm associated with hazardous substances.

This ‘second-stage’ review is to commence within two years of the new regulations coming into force.

Chris Dann website

Chris Dann

Partner

E: chris.dann@ah.co.nz

P: +64 3 964 5835

M: +64 27 672 8721

Jordon Hopkins website

Jordan Wright

Solicitor

E: jordan.wright@ah.co.nz

P: +64 3 364 3812

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