under the HSNO Act 1996

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Roles and

Responsibilities:

Hazardous substances enforcement

under the HSNO Act 1996

DECEMBER 2020

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This document replaces the previous technical guide prepared by the Environmental

Protection Authority (EPA) entitled: HSNO Enforcement Agencies. Roles and responsibilities:

identifying a lead agency following a hazardous substance non-compliance or incident (May

2012).

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Abbreviations

Abbreviation Name in full

2017 reform 2017 Working Safer Reforms

CAA Civil Aviation Authority

CPGS Cosmetic Products Group Standard 2017

CRP Child resistant packaging

EPA Environmental Protection Authority

FENZ Fire and Emergency New Zealand

FENZ Act Fire and Emergency New Zealand Act 2017

HPC Notice Hazardous Substances (Hazardous Property Controls) Notice 2017 HSNO Act Hazardous Substances and New Organisms Act 1996

HSW Act Health and Safety at Work Act 2015

HSW HS Regulations Health and Safety at Work (Hazardous Substances) Regulations 2017

MNZ Maritime New Zealand

MoH Ministry of Health

MPI Ministry for Primary Industry

NZTA Waka Kotahi New Zealand Transport Agency

PHU Public Health Unit

Police New Zealand Police

PPD Para-phenylenediamine

RC Regional Council

RMA Resource Management Act 1991

SPCA Royal New Zealand Society for the Prevention of Cruelty to Animals

TA Territorial Authority

VTA Vertebrate toxic agent

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Introduction

This document is designed for the agencies enforcing the Hazardous Substances and New Organisms Act 1996 (HSNO Act). It explains which agency is responsible under the HSNO Act for enforcing hazardous substance

¹

requirements following an incident or non-

compliance, and helps you work out who is the lead agency, who has a supporting role, and where the responsibilities overlap.

This document outlines the legal framework for HSNO Act and provides scenarios to help you to understand the different roles and enforcement responsibilities.

How the lead agency or agencies should respond to situations is the responsibility of each agency, based on its priorities and policies.

1 Hazardous substance has the same meaning as in the HSNO Act:

Hazardous substance means, unless expressly provided otherwise by regulations or an EPA notice, any substance—

(a) with 1 or more of the following intrinsic properties:

(i) explosiveness (ii) flammability

(iii) a capacity to oxidise (iv) corrosiveness

(v) toxicity (including chronic toxicity)

(vi) ecotoxicity, with or without bioaccumulation; or

(b) which on contact with air or water (other than air or water where the temperature or pressure has been artificially increased or decreased) generates a substance with any 1 or more of the properties specified in paragraph (a).

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Hazardous substance enforcement and the law

This section shows the aspects of hazardous substance management that may require enforcement, and where these legal requirements come from, including some relevant changes to the HSNO Act since 2017.

Changes to New Zealand law

On 1 December 2017, some parts of the HSNO Act relating to hazardous substances were amended (2017 reform), changing the way hazardous substances are managed and controls are enforced across workplaces in New Zealand.



Parts of the regulations under the HSNO Act (workplace controls to protect people) were moved to the Health and Safety at Work (Hazardous Substances) Regulations 2017 (HSW HS Regulations) that sets out the requirements for hazardous substances in the workplace.



Amendments to Section 97 of the HSNO Act, identified the agencies with responsibilities for enforcement of the HSNO Act, including a broader role for the Environmental

Protection Authority (EPA) and a more targeted role for WorkSafe.

What the Hazardous Substances and New Organisms Act 1996 covers

Following the 2017 reform, most of the controls to manage hazardous substances in the workplace moved to the Health and Safety at Work Act 2015 (HSW Act) and Hazardous Substances Regulations (HSW HS Regulations). As a result, the HSNO Act and its associated EPA notices (which have replaced previous HSNO regulations) now cover the following areas:



approval of hazardous substances for use, import or manufacture in New Zealand



rules for classification, labelling, safety data sheets and packaging of hazardous substances



regulation of class 9 (ecotoxic) substances (workplace and non-workplace)



disposal of hazardous substances (workplace and non-workplace)



regulation of all hazardous substances in non-workplaces.

What the Health and Safety at Work Act covers

Under the Health and Safety at Work Act 2015 (HSW Act), WorkSafe, or a designated

agency, enforces the various HSW HS Regulations, including:

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

enforcing the work related rules for the manufacture, use, handling and storage of class 1–8

²

hazardous substances



managing the compliance certification regime



developing safe work instruments to set detailed and technical rules for hazardous substances



providing guidance, information and tools to help organisations understand their obligations.

Designated agencies under section 191 HSW Act can perform those WorkSafe functions and exercise those powers described in the designation instrument. A designated agency takes over WorkSafe’s role for the functions and powers that were designated to it.

As at 30 January 2020, there were two ‘designated agencies’:



Maritime New Zealand (MNZ), responsible for work undertaken on board ships, and ships as workplaces



the Civil Aviation Authority (CAA), responsible for work undertaken to prepare an aircraft for imminent flight, work undertaken on board an aircraft for the purpose of imminent flight or while in operation, and aircraft as workplaces while in operation.

What the Fire and Emergency New Zealand Act 2017 covers

Fire and Emergency New Zealand manages emergencies involving hazardous substances under the Fire and Emergency New Zealand Act 2017 (FENZ Act). The trigger for a

hazardous substance emergency under the FENZ Act is lower than under the HSNO Act. We encourage you to call 111 even if the situation is not yet life threatening.

The FENZ Act gives powers to authorised staff, if there is an emergency involving hazardous substances, to make the situation safe, and activities that relate to this.

In addition, FENZ have the same powers and protections as enforcement officers under the HSNO Act (so they could enter a site or take samples, for example) until an enforcement officer arrives. FENZ, however, cannot investigate or take enforcement action under the HSNO Act, although it can investigate the fire.

2 This includes substances that are explosives; flammable; have a capacity to oxidise; corrosive; or toxic, including chronic toxicity, but excluding ecotoxics, radioactive substances and infectious substances

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Enforcement responsibility

The HSNO Act (section 97) lists the government agencies having hazardous substance enforcement responsibilities under different circumstances.

For efficiency, one agency should lead the response to each incident with support from other agencies that have enforcement responsibilities or relevant expertise. The lead agency decides how they will respond to the incident, based on the incident or non-compliance in question.

Use table 1 to see which areas of enforcement fall under your agency’s legal responsibility.

Some areas of responsibility are shared by more than one agency. In this case, agencies are encouraged to agree on who will lead the enforcement response, and to get help from the other relevant agencies if they hold specialist expertise.

Table 1: Government agencies’ enforcement responsibilities under the HSNO Act

Agency Enforcement responsibility Where and when enforced Type of role

WorkSafe New Zealand

Provisions of the HSNO Act in respect of disposal and ecotoxic controls³ and equivalent conditions in Group Standards

In any workplace other than those covered by designated agencies

Mandatory

All provisions of the HSNO Act

In, on, or about any distribution system, gas installation, or gas appliance

Mandatory

Waka Kotahi New Zealand Transport Agency

In, or on any motor vehicle, road, rail vehicle, or railway line

Discretionary

NZ Police

All provisions of the HSNO Act (after consultation with NZTA)

In, or on any motor vehicle, road, rail vehicle, or railway line

Mandatory

Restrictions and prohibitions relating to the retail sale of fireworks

Retailers of fireworks Mandatory

Civil Aviation Authority

In or on any aircraft, including when the aircraft is a

workplace

Mandatory

3 Such controls can be found under the HSNO Act approval for a hazardous substance.

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Agency Enforcement responsibility Where and when enforced Type of role Discharge of hazardous

substances

From an aircraft, including when the aircraft is a workplace

Mandatory

Maritime New Zealand

In, or on any ship, including when the ship is a workplace

Mandatory

Ministry of Health

Where it is necessary to protect public health

Mandatory

Territorial authorities

In, or on premises in their district that are not covered by a HSNO enforcement agency listed above (for example, residential or public place)

Mandatory

In, or on premises where a HSNO enforcement agency listed above has transferred authority to the territorial authorities under section 98 HSNO Act

Mandatory

In, or on premises where the TA is in or on those premises to enforce the Resource Management Act 1991 (RMA)

Discretionary

Regional councils

In, or on premises in region where the regional council is enforcing RMA provisions

Discretionary

In, or on premises where another agency has transferred authority to the regional council

Discretionary or

mandatory, depending on power transferred

EPA

Provisions of the HSNO Act in respect of classification and content controls (including labelling, packaging and safety data sheets) and equivalent conditions in group standards relating to hazardous

substances

All of New Zealand

Mandatory

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Agency Enforcement responsibility Where and when enforced Type of role Requirement for a hazardous

substance to have an

approval before it is imported or manufactured.

Mandatory

Prohibitions related to persistent organic pollutants and hazardous substances prohibited by regulations

Mandatory

Requirements defined in EPA notices, such as the

information required from importers and manufacturers

Mandatory

Provisions of the HSNO Act in respect of any regulations, EPA controls and equivalent conditions in group standards in workplaces not covered by another HSNO enforcement agency

Mandatory

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Identifying lead agency to deal with incident or non-compliance

When your agency receives notification of a hazardous substance incident or non-

compliance, the first step is to determine whether your agency should take the lead or

whether the responsibility best sits with another agency (as specified in section 97 HSNO

Act). This section identifies agencies with an enforcement role in the incident or non-

compliance and establishes the lead agency.

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Figure 1: Decision-making process to determine HSNO enforcement agency

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Identify lead agency

Identifying a lead agency depends on what the incident or non-compliance is and where it happened.

Once your agency receives a notification of a hazardous substance incident or non- compliance, start by asking the following questions.

Is it an emergency involving hazardous substances?

Fire and Emergency NZ (FENZ) is the lead agency in a hazardous substance emergency

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once they arrive on the scene.

⁵

When the incident is stabilised or ‘rendered safe’,

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FENZ hand over the control of the incident to another agency

⁷

or to the site owner. FENZ is not an enforcement agency under the HSNO Act, but has an enforcement role only during

emergencies.

⁸

Read more information about FENZ capability relating to hazardous substances.⁹

If not an emergency, does it relate to hazardous substances?

The EPA is the lead agency in cases where, hazardous substances:



imported or manufactured without approval or with an incorrect approval assigned to them



imported or manufactured with inadequate packaging, labelling or safety data sheets

¹⁰



are persistent organic pollutants (POPs).

Contact our Hazardous Substances Compliance team on +64 4 916 2426 or email

[email protected] if you have questions relating to compliance.

If neither of the options above apply, identify a lead agency based on the location or place where the incident or non-compliance occurred.

4 A ‘hazardous substance emergency’ is defined in section 6 FENZ Act as:

the release or potential accidental release of any hazardous substance from any building or other premises, or from any container or pipe, or from any means of transport (whether motorised or not)

5 Both the FENZ Act and Part 9 of the HSNO Act cover emergencies involving hazardous substances. The FENZ Act definition requires a lower threshold for response than the HSNO Act, meaning that FENZ will always be required to respond first before other agencies become involved under the HSNO Act.

6 Section 7(a) FENZ Act.

7 See Appendix E-Handovers of the New Zealand Government Coordinated Incident Management System (CIMS) (2020) 3^rd edition.

8 As FENZ staff are deemed enforcement officers under the HSNO Act (section 135) and the FENZ Act (section 39) when responding to emergencies.

9 www.fireandemergency.nz/hazardous-substances/managing-hazardous-substances/

10 WorkSafe is responsible for the enforcement of HSW HS Regulations in the workplace in relation to packaging, labelling and safety data sheets.

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Location or place where the incident or non-compliance occurred

Ship

Maritime New Zealand (MNZ) manages hazardous substance-related issues through its audits; and inspects and investigates to ensure compliance with the HSNO Act, the Maritime Transport Act 1994, the HSW Act, and the International Maritime Dangerous Goods Code and Maritime Rules Part 24A – Carriage of Cargoes – Dangerous Goods.

MNZ is a designated agency under the HSW Act, with a role that includes enforcement related to work on board ships, and ships as workplaces.

The regional council may enforce the HSNO Act if it is in or on the premises for enforcing RMA provisions.

Note: ‘Ship’ is defined under the HSNO Act in the same way as under the Maritime Transport Act 1994, to mean:

every description of boat or craft used in navigation, whether or not it has any means of propulsion; and includes—

a. a barge, lighter, or other like vessel:

b. a hovercraft or other thing deriving full or partial support in the atmosphere from the reaction of air against the surface of the water over which it operates:

c. a submarine or other submersible.

Aircraft

The Civil Aviation Authority (CAA) manages the risks associated with hazardous substances in the aviation industry by assessing reported incidents for levels of compliance, as well as undertaking inflight audits and inspections.

The CAA is a designated agency under the HSW Act, with a role including enforcement related to work to prepare an aircraft for imminent flight; work on board an aircraft for the purpose of imminent flight or while in operation; and aircraft as workplaces while in operation.

The regional council may enforce the HSNO Act if it is in or on the premises for enforcing

RMA provisions.

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Any other workplace or a gas distribution system, gas installation

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or gas appliance

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WorkSafe, or a designated agency, will be the lead agency for all incidents and non- compliances in a workplace. WorkSafe regulates workplaces’ health and safety under the HSW Act and Regulations, and under the HSNO Act.

Designated agencies under section 191 HSW Act can perform those WorkSafe functions, and exercise those powers described in the designation instrument. A designated agency takes over WorkSafe’s role for the functions and powers that were designated to it.

As at 30 January 2020, there were two designated agencies: MNZ and CAA. They perform all the functions and exercise all powers of the regulator under the HSW Act in respect of:



work on board ships; and ships as workplaces (MNZ)



work to prepare an aircraft for imminent flight; work on board an aircraft for the purpose of imminent flight or while in operation; and aircraft as workplaces while in operation (CAA).

The regional council may enforce the HSNO Act if it is in or on those premises for enforcing RMA provisions.

Note: ‘workplace’ is defined the same way in the HSNO and HSW Acts

¹³

as:

a. […] a place where work is being carried out, or is customarily carried out, for a business or undertaking; and

b. includes any place where a worker goes, or is likely to be, while at work.

[…] place includes—

a. a vehicle, vessel, aircraft, ship, or other mobile structures

b. any waters and any installation on land, on the bed of any waters, or floating on any waters.

Road or rail network, vehicle or train

NZ Police (after consultation with the NZTA) is the lead agency for an incident or non- compliance that took place on the road network, on the rail network or in a vehicle or train.

NZ Police’s Commercial Vehicle Safety Team provides hazardous substance enforcement on roads by ensuring compliance with the Land Transport Rule: Dangerous Goods 2005.

11 Gas installation is defined in the Gas Act 1992 as “an installation, including a gas appliance (other than a portable gas appliance that is designed to have within it, or attached to it, its own source of gas), that is connected or intended to be connected with any source (including any container) from which gas is supplied;

and includes any associated fittings; but does not include any part of a distribution system”

12 Gas appliance is defined in the Gas Act 1992 as “any appliance that uses, or is designed or intended to use, gas, whether or not it also uses, or is designed or intended to use, any other form of energy”

13 See section 20 HSW Act.

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NZTA may enforce the HSNO Act provisions on any road or railway line, or in or on any motor or rail vehicle.

The regional council may enforce the HSNO Act on any road or railway line, or in or on any motor or rail vehicle, if it is in or on those premises for enforcing RMA provisions.

Note: Compliance with the HSNO Act for packaging, marking, labelling and documentation while a hazardous substance is being transported is generally assured if there is compliance with:



Civil Aviation Rules Part 92 – Carriage of Dangerous Goods



International Maritime Dangerous Goods Code, incorporated by reference by Maritime Transport Rule Part 24A – Carriage of Cargoes – Dangerous Goods



the Land Transport Rule: Dangerous Goods 2005



the New Zealand standard for the transport of dangerous goods on land, NZS 5433:2012 (or later iterations).

Any other place

Territorial authorities (TAs) are responsible for leading hazardous substance enforcement in their district for all incidents or non-compliances taking place in any other place not

mentioned above, such as a public place or a residential home, that is not a workplace.

Public health needs protection

If the incident is likely to affect public health, the Ministry of Health (MoH) generally plays a supporting role (rather than leading enforcement) as it must act “where it is necessary to protect public health”.

¹⁴

The definition of ‘public health’ requires a threshold to be reached before the Ministry of Health (MoH) will act. MoH decides whether the threshold for public health risk has been reached. Before that threshold is reached (in MoH’s view), the lead agency will be the agency identified using the steps described above.

Given the nature of HSNO enforcement, MoH is generally not the lead agency but rather supports other agencies.

¹⁵

14 Section 97 of the HSNO Act.

15 Due to the changes in roles this may change in some scenarios. For example, MoH manages classes 6.2 (infectious substances) and 7 (radioactive substances), which are not regulated under the HSNO Act.

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Steps after identify the lead agency

1. When more than one agency can take enforcement action under the HSNO Act

In some cases, more than one agency will have enforcement powers under the HSNO Act. In such cases, the agencies with enforcement powers must work together to nominate a lead agency and agree on the roles of the other agencies. The agencies must formally advise FENZ if they do not intend to attend the site.

2. Lead agency decides whether to investigate

The lead agency will decide whether to investigate the incident to determine if non- compliance has occurred, and then take appropriate enforcement action.

This decision to investigate, take other actions or take no action at all, will be based on the agency’s internal procedures and will depend on the agency’s priorities.

3. If investigation not proceeding

If a lead agency decides not to investigate or take enforcement action at all, the EPA requests the agency:



to record a formal decision why it will not proceed to investigate or take enforcement action, including the reasons for the decision



to communicate this decision to the EPA and any other lead agencies.

This is to ensure that all relevant HSNO enforcement agencies have the opportunity to consider whether or not to take enforcement action, and coordinate any response with other agencies.

4. Support from other agencies

Other agencies will need to be involved if the lead agency does not have the required

expertise to deal with the matter. For example, in the case of explosives found in a home that is not a workplace, the lead agency would be the TA. The TA might ask for expert advice or involvement from another agency that has expertise in explosives, such as NZ Defence Force or the NZ Police.

Agencies must be in a position to effectively assess hazardous substance non-compliances

or incidents that happen within their area of responsibility. Where agencies lack certain

specialist skills, they must have contingency plans in place, including entering into formal

agreements (such as memoranda of understanding or operational agreements) with partner

agencies formalising cooperation and support.

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5. Transferring the lead role to another agency

In some cases, the lead role may be transferred to another agency better placed to deal with

the incident. Transfers from one agency to another should be done formally and all parties

involved notified of the transfer.

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Enforcement tools available

Enforcement agencies can use regulatory interventions and powers to promote and enforce compliance under the HSNO Act, as described below. These tools are just examples. Not all of these tools are available to all agencies. There may be other tools available to each agency that are not listed below.

Non-statutory enforcement tools

Advise Advise a person or group about possible hazardous substance concerns and the steps they need to take to address those concerns.

Example: A letter advising of requirements for particular activities together with the penalties or consequences of non-compliance.

Warn Warn when non-compliance or offending has been identified, but limit the enforcement action, such as when other enforcement action cannot be pursued or incident does not warrant significant enforcement action.

Warnings can be informal or formal. The enforcement agency would generally issue a warning following an investigation, and provide a record that may be considered if future compliance issues arise.

Example: A letter summarising the facts surrounding the incident or non- compliance, advising that a non-compliance had occurred and what the penalties of continued or future non-compliance are.

Statutory enforcement tools Conditions,

restrictions, controls or standards

Set conditions, restrictions, controls or standards that a person or group must comply with.

Example: Medical Officers of Health or Health Protection Officers working within PHUs can grant permissions under section 95A HSNO Act that may include conditions (such as signage and exclusion zones) to deal with potential effects of a1080 aerial application on public health.

Investigate, inspect, monitor

Investigations, inspections and monitoring, done separately or together, can operate as compliance tools under the enforcement powers of section 103A HSNO Act.

Example: Under the HSNO Act, the enforcement agency can inspect site, and seek information sought without investigating the site.

Revocation of permissions or licences

Prohibiting a person or group from continuing a regulated activity.

Example: Medical Officers of Health or Health Protection Officers working within PHUs have the power to revoke section 95A permissions with respect to vertebrate toxic agent (VTA) operations.

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Compliance order A compliance order is very similar to an RMA abatement notice.

Compliance orders can require a person to stop or start doing something to comply with the HSNO Act.

Example: Under the HSNO Act, an enforcement officer can serve a compliance order requiring a person to do something to ensure

compliance with the HSNO Act, regulations, or a control imposed under the HSNO Act.

Prosecution Prosecution is initiated by filing charges in the District Court criminal jurisdiction. Depending on the outcome, a prosecution attracts penalties or other court orders, and a recorded conviction.

Enforcement tools outside the HSNO Act Court-based civil

proceedings

Such as seeking damages, injunctions, declarations, civil contempt procedures.

Example: If an enforcement agency knows that a VTA operation will be carried out without approval, it can seek an injunction to stop the operator from going ahead.

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Examples of hazardous substance enforcement

Use the questions in figure 1 to help you identify lead and support agencies.

Example 1: Spray drift from a neighbouring property

Scenario

People in their home notify authorities they are experiencing adverse health effects after a helicopter sprayed a substance over a neighbouring vineyard.

Decision process to identify lead and support agencies

Is it an emergency?

Yes, an ambulance may attend the site to treat any person affected, however, the hazardous substance incident has already taken place. Go to next question.

Does the HSNO Act apply?

Yes, the substance, a fungicide (class 9), is a hazardous substance, and the spray may have been outside a buffer zone (Hazardous Substances (Hazardous Property Controls) Notice 2017 (HPC Notice) clause 51);

there may have been restrictions on applying substances in application plot (HPC Notice clause 50); or there may have been issues with the qualifications for aerial application (HPC Notice clause 62).

HSW Act and HSW HS regulations also apply as the substance has caused adverse health effects on persons, which means the product is also toxic (class 6).

Does it relate to the import or

manufacture of hazardous

substances without approval,

inadequate

packaging, labelling or safety data sheets; or

persistent organic pollutants (POPs)?

No, go to the next question.

Where did the

incident happen? On a ship? No, go to the next question.

On an aircraft?

Yes, the helicopter is an aircraft, so the CAA is a lead agency.

Answer the next questions as well, to identify if there are any other lead agencies.

Go to the next question.

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Example 1: Spray drift from a neighbouring property In a gas distribution

system, gas installation or appliance?

In a workplace?

Yes, the winery is a workplace, so WorkSafe is a lead agency. Here, the CAA is a WorkSafe designated agency, and they can enforce HSNO and HSW HS regulations in this case.

On a road, a rail network, in a vehicle or a train?

In any other place?

Yes, a home, so the TA where the home is located is a support agency and the regional council may be a support agency.

Does it impact public health?

MoH may be involved if any person was exposed and felt unwell, the doctor who looks after them would have to notify a hazard substance injury to the medical officer of health.¹⁶

Conclusion

Lead agency CAA

Support agencies

TA

Regional council – if it is present on the premises to enforce compliance with discharge to air requirements under the RMA

MoH

16 The medical officer of health may investigated and/or report this hazardous substance injury using the hazardous substances surveillance system.

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Example 2: Pesticide causes poisoning at home

Scenario

A person complains his dogs have been poisoned and died. They report their neighbour laid pesticide baits that are available to buy over the counter.

Is it an emergency? No, as it relates to an event that has already happened. Go to next question.

Yes, as it involves pesticides which are hazardous substances approved under the HSNO Act.

inadequate

packaging, labelling or safety data sheets; or POPs?

Where did the

On an aircraft? No, go to the next question.

In a gas distribution system, gas installation or appliance?

In a workplace? No, go to the next question.

In any other place?

Yes, a home. The pesticides were meant to be used in a contained bait station, instead they were laid as loose baits. The Territorial authority where the home is located is the lead agency and the regional council may be a support agency.

If there is public access to the property where the baits were laid, then MoH may become involved in identifying and responding to any public health risks.

Conclusion

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Example 2: Pesticide causes poisoning at home Lead agency Territorial authority

Example 3: A person reacts to store-bought make-up

Scenario

There is a complaint from a person suffering from itchy, burning eyes and eyelids after using mascara they bought from a discount store. The label on the mascara does not comply with the Cosmetic Products Group Standard.

Is it an emergency? No, as it relates to an event that has already passed. Go to next question.

Yes, cosmetics are hazardous substances and they are managed under the Cosmetic Products Group Standard (CPGS).

inadequate

Yes, the label does not comply with the Hazardous Substances (Labelling Notice) 2017. This is a requirement of the CPGS. The EPA is the lead enforcement agency. The ingredients in the mascara may also be non- compliant. The importer, manufacturer or supplier must meet the requirements of the CPGS.

MoH may be involved as the person felt unwell. The doctor who looks after the complainant would have had to notify a hazard substance injury to the medical officer of health.¹⁷

Conclusion

Lead agency EPA – as the enforcement agency for labelling and product content controls.

Support agency

MoH

Trading Standards may help if there is a product recall. (Note that Trading Standards is not a HSNO enforcement agency)

17 The medical officer of health may investigated and/or report this hazardous substance injury using the hazardous substances surveillance system.

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Example 4: Inadequate child resistant packaging on a cleaning product

Scenario

A member of the public complains about inadequate child resistant packaging (CRP) on a cleaning product they bought from their local supermarket.

Is it an emergency? No, as no hazardous substance was released as part of this incident.

Yes, as cleaning products are managed under the HSNO Act under the Cleaning Products Group Standard.

inadequate

Yes, as the packaging may not comply with the Hazardous Substances (Packaging Notice) 2017, which contains provisions on CRP. Suppliers, importers and manufacturers have an obligation to meet CRP

requirements.

Does it impact

public health? Yes, MoH may enforce the HSNO Act if the incident impacted the public.

Conclusion

Lead agency EPA – as the enforcement agency for packaging controls.

Support agency

MoH may become involved if there is a risk to public health.

Trading Standards may help if there is a product recall.

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Example 5: Inadequate labelling and packaging on flammable paint sold online

Scenario There is a complaint about flammable paint being sold on the internet that does not have appropriate labelling and packaging.

Is it an emergency? No, as no hazardous substance was released or potentially accidentally released as part of this incident.

Yes, as the importation, manufacturing and supply of flammable paint are managed under the HSNO Act, as part of the Surface Coatings and Colourants Group Standard.

inadequate

Yes, as the paint has non-compliant labelling and packaging. The supplier must meet HSNO Act requirements, including when the items are sold online. The supplier may also be the importer, in which case it must comply with HSNO Act requirements for importers.

Does it impact

public health? No.

Conclusion

Lead agency EPA – as the enforcement agency for labelling and packaging controls.

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Example 6: A leaky 9 kg LPG cylinder causes a fire

Scenario

FENZ is called to a home where a leaking 9 kg LPG cylinder caused a fire. The fire seems to have been caused by the overfilling of the cylinder.

The cylinder was also badly corroded. The cylinder was filled recently at the local service station.

Is it an emergency? Yes, and FENZ have already been advised.

No – filling of LPG cylinders at a service station is regulated under HSW HS Regulations and enforced by WorkSafe.

Conclusion

Lead agency

FENZ (emergency response) WorkSafe

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Example 7: Pesticide marketed without HSNO Act approval

Scenario There is a complaint from a pesticide company about a competitor marketing a product that does not have HSNO Act approval.

Is it an emergency? No, as no hazardous substance was released or potentially accidentally released as part of this incident.

Does the HSNO Act

apply? Yes, pesticide approvals are managed under the HSNO Act.

inadequate

Yes, as the pesticide in question potentially does not have HSNO Act approval.

Does it impact

Conclusion

Lead agency EPA – as enforcer of HSNO Act requirements imposed on suppliers, importers or manufacturers.

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Example 8: Lack of signage where cyanide bait was laid out

Scenario

There is a complaint about the lack of adequate signage in a commercial forest block where cyanide bait was laid. The public can access the forest along a walking track. Cyanide is a VTA. A permission to apply the VTA was issued by the public health HSNO enforcement officer (PHU under MoH), specifying the number, type and location of signage required.

Is it an emergency? No, as it does not relate to a release or potential accidental release of hazardous substances. Go to next question.

Yes – VTAs are approved under the HSNO Act. Before applying VTAs, a permission must be obtained under the HSNO Act. The EPA delegated the power to issue VTA permission to PHUs which operated under the MoH.

inadequate

Where did the

In a workplace?

Yes, as the commercial forest is a workplace, WorkSafe is the lead agency, as the

requirement for signage was not complied with in a workplace.

Yes, as there is public access to the property.

MoH through the relevant PHU is a lead agency also because the application of VTA required a permission from the PHU, and there was

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Example 8: Lack of signage where cyanide bait was laid out

non-compliance with the signage requirements imposed under that permission. MoH appoints HSNO enforcement officers within PHUs to undertake HSNO enforcement work.

Conclusion

Lead agencies MoH and WorkSafe

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Example 9: No application made for laying out cyanide bait

Scenario

There is a complaint about the lack of adequate signage in a commercial forest block where cyanide bait was laid. The public can access the forest along a walking track. A VTA permission was required to be obtained from the PHU, but no application was made.

Yes – VTAs are approved under the HSNO Act. Before applying VTAs, a permission must be obtained under the HSNO Act. The EPA delegated the power to issue VTA permission to PHUs which operated under the MoH.

Signage requirements are covered separately by regulation 13.19 of HSW HS regulations and enforced by WorkSafe (breach of signage requirement is not discussed further in this scenario).

inadequate

Where did the

In a workplace?

Yes, as the commercial forest is a workplace, WorkSafe is a lead agency, as the requirement for signage and the restrictions on accessing the area were not complied with in a workplace.

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Example 9: No application made for laying out cyanide bait Does it impact

public health?

Yes, as there is public access to the property and there may be an impact on human health.

Conclusion

Lead agencies

WorkSafe

MoH (human health impacts)

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Example 10: VTA applied – no permission required

Scenario

There is a complaint about the lack of adequate signage in a commercial forest block where VTA was laid. No VTA permission was required because of the type of VTA used. Therefore, the PHU did not issue a permission for this operation.

No – although VTAs are approved under the HSNO Act, in this case the complaint is about lack of signage. As a permission under s95A HSNO Act was not required, there was no signage requirement imposed on this operation under the HSNO Act. Regulation 13.19 of the HSW HS Regulations, which is enforced by WorkSafe, covers signage requirements that are independent of a s95A HSNO Act permission.

Because this is a breach under a different Act, the breach of signage requirements is not discussed further in this scenario.

Conclusion

Lead agencies WorkSafe

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Example 11: The police find explosives at a house

Scenario During a police search of a house, blasting explosives stored inside a locked cabinet are found.

Is it an emergency? Yes, as there is a potential for accidental release.

apply? Yes, blasting explosives are managed under the HSNO Act.

inadequate

Where did the

In any other place?

Yes, a home. The potential breach is that blasting explosives, which are Class 1 (explosives), cannot be stored at a residential property.

Does it impact

Conclusion

Lead agency

FENZ (emergency response) TA

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Example 11: The police find explosives at a house

Support agency NZ Defence Force and/or the police have expertise in the area of explosives and can be asked to help.

Additional information

WorkSafe may have further interest in how the person accessed the explosives which are exclusively used for commercial purposes. These explosives are tracked substances, with suppliers and importers required to hold records of supply lines. Suppliers may also only supply certain explosives to holders of a controlled substance licence. Breaches of the legislation may go well beyond the domestic property.

NZ Police may investigate issues relating to security concerns.

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Example 12: Person is applying temporary tattoos at a festival

Scenario

There is a complaint about a woman at a festival who is applying temporary tattoos using black henna, which is suspected of containing para-phenylenediamine (PPD). Note: Presume they are applying the tattoos for commercial gain.

Is it an emergency? No, as it does not involve accidental or potential accidental release of a hazardous substance.

Yes, black henna may contain PPD which is a hazardous substance managed under the Cosmetic Products Group Standard (CPGS) issued under the HSNO Act

inadequate

Yes, as may not meet the CPGS specifications. Under the CPGS, PPD use is restricted in temporary black henna tattoos.

While this happened in a workplace, WorkSafe is not a HSNO

enforcement agency because this does not raise issues of disposal or ecotoxic controls. The PPD used in the tattoo ink raises concerns about compliance with a group standard which is a matter that falls within the EPA’s HSNO enforcement responsibility.

Yes, MoH may become involved as tattoos were applied to more than one person.

Conclusion

Lead agency EPA – as enforcer of HSNO Act requirements for product content Support agency MoH (public health)

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Example 13: Hazardous substances in plastic toys

Scenario

A member of the public has seen articles in the media and on the internet that phthalates in toys have been banned in other countries, and is concerned that the plastic toys their children have might be a risk to their health.

Is it an emergency? No, as it does not involve accidental or potential accidental release of a hazardous substance.

No – toys are not regarded as hazardous substances as they are a manufactured product, and therefore they are not covered by the HSNO Act. Refer the person to Consumer Affairs at the Ministry of Business, Innovation and Employment.

Conclusion

Lead agency Consumer Affairs within MBIE Supporting agency MoH (advice on public health risks)

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Example 14: A person is storing petrol in their garage

Scenario A home owner is found storing 100 litres of petrol in their garage, with no HSNO certificate.

Is it an emergency?

No, as there is no release of the hazardous substance.

FENZ may attend if they are notified that the containers are in an unsafe condition or there are fumes in the garage.

Yes, the substance involved (petrol) is managed under the HSNO Act under the HPC Notice.

inadequate

Where did the

In any other place?

Yes, a home. The potential breach is that the quantity of petrol exceeds the limit stated in Clauses 17 and Schedule 3 of the HPC Notice, which is 50 litres.

Does it impact

Conclusion

Lead agency

FENZ (emergency response) Territorial authority

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Example 15: LPG cylinders are installed at home without a gas certificate

Scenario

There is a report of a home with a homemade gas installation consisting of three LPG cylinders (45 kg each). The three cylinders are

interconnected to a regulator that is connected to a cooker using a rubber hose. The rubber hose enters the kitchen through an open window.

Is it an emergency? Yes, FENZ will attend as there is potential for accidental release of hazardous substances and a likelihood for injury and property damage.

apply? Yes, the gas installation is managed under the HSNO Act.

inadequate

Where did the

Yes, WorkSafe has the responsibility to check the gas installation for compliance with the Gas Act 1992.

The gas supplier must also comply with the HSW Act when supplying LPG cylinders.

In any other place?

Yes, a home. The potential breach is that this installation does not comply with the HPC Notice that requires a compliance plaque for gas installations between 100–300 kg.

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Example 15: LPG cylinders are installed at home without a gas certificate Does it impact

public health?

No.

Conclusion

Lead agency

FENZ (emergency response)

Territorial authority (cylinders only) – as the incident happened in a residential property

WorkSafe (gas installation and connections, except cylinders)

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Example 16: Explosives accident

Scenario

An explosive substance (Class 1) was used to eradicate starlings on a rural residential property, leaving thousands of birds either dead or maimed.

Is it an emergency? Yes, as there has been a report of an explosion.

apply? Yes, explosives are managed under the HSNO Act.

inadequate

Where did the

In any other place?

Yes, a home. Explosives, which are Class 1 hazardous substances, are not permitted to be stored at a residential property. Some types of explosives are only allowed to be stored and used within a workplace.

Does it impact

public health? No.

Conclusion

Lead agencies FENZ (emergency response)

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Example 16: Explosives accident

Territorial authority – as the explosives were stored and used in a residential property.

Support agencies NZ Defence Force and/or the police have expertise in the area of explosives and can be asked to help.

Additional information

WorkSafe may have further interest in how the person gained access to the explosives which are almost exclusively used for commercial purposes. These explosives are tracked substances, with suppliers and importers required to hold records of supply lines. Suppliers may also only supply certain explosives to holders of a controlled substance licence.

Breaches of the legislation (including HSW Act) may go well beyond the domestic property.

MPI or the SPCA may investigate the impact of explosives use on the birds.

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Example 17: Weed killer is sprayed onto a neighbour’s lawn

Scenario

A complaint received from a member of the public after their neighbour hand sprayed weed killer on the lawn. The complainant advised the spray drift killed some of their plants.

Is it an emergency? No, as it relates to an event that has already happened. Go to next question.

No – while weed killers are approved under the HSNO Act, there is no specific breach of any HSNO Act controls in this case.

Matters relevant to spray drift are regulated under the RMA and fall within the jurisdiction of the TA or the RC. In this case, the TA or the RC will handle the matter under the RMA.

Conclusion

Lead agencies Territorial authority or Regional council

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Example 18: Spray use killing bees

Scenario A bee owner notified authorities they noticed dead bees after his neighbours sprayed their kiwifruit orchard on a neighbouring property.

Is it an emergency? No, as it relates to an event that has already happened. Go to next question.

Yes, the substance, a pesticide, is a hazardous substance toxic to the environment (ecotoxic); there may have been restrictions on applying the substance while bees were foraging (HPC Notice clause 58).

inadequate

Where did the

In a workplace?

Yes, the kiwifruit orchard is a workplace, so WorkSafe is a lead enforcement agency for the ecotoxic controls.

In any other place?

Yes, the home of the bee owner (the

complainant), so the Territorial authority where the home is located is a support agency.

Does it impact

public health? No, MoH is not involved as there was no human exposure.

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Example 18: Spray use killing bees

Conclusion

Lead agencies WorkSafe

Support agency Territorial authority – with respect to the bee owner’s home.

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Example 19: Leaky container on a boat

Scenario

The master of a foreign-flagged commercial ship having docked in a NZ port reports that a shipping container carried on board is leaking a suspicious substance.

Is it an emergency? Yes, FENZ will attend and manage all aspects of this, but may require MNZ staff to help.

apply? Yes, the substance is a hazardous substance.

inadequate

Where did the

incident happen? On a ship?

Yes, MNZ staff may be required to help FENZ during the emergency response phase, and once the incident is deemed safe by FENZ they will hand it over to MNZ.

In a workplace?

Yes, the ship is a workplace, so MNZ, as a designated agency for WorkSafe under the HSW Act, is a lead enforcement agency.

In any other place? No.

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Example 19: Leaky container on a boat Does it impact

public health? No, the Ministry of Health is concerned with human health issues.

Conclusion

Lead agency

FENZ (emergency response) MNZ

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Example 20: Leaky LPG container on a ferry

Scenario

The smell of LPG on the vehicle deck of a roll-on roll-off (Ro-Ro) ferry alerted the crew to the potential danger on board. The leak clearly came from one of eight 25,000 litre intermodal ISO tank containers on rail wagons, staff could not locate the exact source of the leak.

Is it an emergency? Yes, FENZ will attend once the ferry is in port. FENZ may require MNZ staff to help.

apply? Yes, the substance is a hazardous substance.

inadequate

Where did the

incident happen? On a ship?

Yes, MNZ is one of the enforcement agencies involved.

In a workplace?

Yes, the ship is a workplace, so MNZ, as a designated agency for WorkSafe under the HSW Act, is a lead enforcement agency.

Yes, as it is on a train - NZTA Rail Safety team opened an investigation.

In any other place?

As the ferry will berth in a port, the Port

Authority must ensure the safe management of the ship.

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Example 20: Leaky LPG container on a ferry Does it impact

public health? No, the Ministry of Health is concerned with human health issues.

Conclusion

Lead agency

FENZ (emergency response once in port) MNZ (ferry)

NZTA (rail)

Support agencies

These are support agencies with respect to non-HSNO Act matters:

 Port Authority (safe management of ship once in port)

 NZ Police (establishing safe are around rail yards)

 WorkSafe (investigated incident)

The owner of the LPG tank was notified, and was able to provide technical advice and assistance with the LPG tanks.

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Example 21: Leaky container of acid at railway freight depot

Scenario

At a railway freight depot, a 20-litre container of strong acid (Class 8 – Corrosives) has been found crushed and punctured as a result of rough handling during loading onto a truck from a railway wagon.

In addition to the acid, a substantial quantity of food items were also loaded onto the same truck for delivery (to save journey time).

Is it an emergency? Yes, and FENZ have already been advised.

apply? Yes, the substance, is a hazardous substance Class 8 acid Does it relate to the

import or manufacture of hazardous

inadequate

Where did the

In a workplace? Yes, the railway freight loading depot is a workplace.

Yes, incident occurred at a railway freight loading depot and involved a truck.

In any other place? No, go to the next question.

No, MoH may become involved in identifying and responding to public health risks from potential contamination of food items; however, unlikely to have wider public health implications as no public access to items (due to location and delivery status).

Conclusion

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Example 21: Leaky container of acid at railway freight depot

Lead agencies

New Zealand Police – Dangerous Goods Enforcement Officers

responsible for investigating into the incident, including exercising powers under sections 129, 130 and 131 of the Land Transport Act 1998 to inspect vehicle and premises in relation to dangerous goods.

Support agency

FENZ – responding to emergency and making location safe.

WorkSafe – consulted as incident occurred in a workplace (consistent with MOU between WorkSafe and Police regarding CVST inspectorate

functions under the HSW Act).

MoH – consulted on appropriate actions in relation to possible contamination of food items.

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Acknowledgement

The EPA acknowledges and thanks the following organisations for providing their feedback on this document:



Ministry of Health Manatū Hauora



Waka Kotahi New Zealand Transport Agency



Maritime New Zealand | Nō te rere moana Aotearoa



New Zealand Police Nga Pirihimana O Aotearoa



Fire and Emergency NZ Whakaratonga Iwi



Civil Aviation Authority of New Zealand | Te Mana Rererangi Tūmatanui o Aotearoa



WorkSafe New Zealand Mahi Haumaru Aotearoa



Selwyn District Council Te Kaunihera ā-Rohe o Waikirikiri



Dunedin City Council Kaunihera ā rohe o Ōtepoti



under the HSNO Act 1996

Roles and

Responsibilities:

Hazardous substances enforcement

under the HSNO Act 1996

This document replaces the previous technical guide prepared by the Environmental

Protection Authority (EPA) entitled: HSNO Enforcement Agencies. Roles and responsibilities:

2012).

Contents

Abbreviations

Introduction

This document is designed for the agencies enforcing the Hazardous Substances and New Organisms Act 1996 (HSNO Act). It explains which agency is responsible under the HSNO Act for enforcing hazardous substance

requirements following an incident or non-

compliance, and helps you work out who is the lead agency, who has a supporting role, and where the responsibilities overlap.

This document outlines the legal framework for HSNO Act and provides scenarios to help you to understand the different roles and enforcement responsibilities.

How the lead agency or agencies should respond to situations is the responsibility of each agency, based on its priorities and policies.

Hazardous substance enforcement and the law

This section shows the aspects of hazardous substance management that may require enforcement, and where these legal requirements come from, including some relevant changes to the HSNO Act since 2017.

Changes to New Zealand law

On 1 December 2017, some parts of the HSNO Act relating to hazardous substances were amended (2017 reform), changing the way hazardous substances are managed and controls are enforced across workplaces in New Zealand.

Parts of the regulations under the HSNO Act (workplace controls to protect people) were moved to the Health and Safety at Work (Hazardous Substances) Regulations 2017 (HSW HS Regulations) that sets out the requirements for hazardous substances in the workplace.

Amendments to Section 97 of the HSNO Act, identified the agencies with responsibilities for enforcement of the HSNO Act, including a broader role for the Environmental

Protection Authority (EPA) and a more targeted role for WorkSafe.

What the Hazardous Substances and New Organisms Act 1996 covers

approval of hazardous substances for use, import or manufacture in New Zealand

rules for classification, labelling, safety data sheets and packaging of hazardous substances

regulation of class 9 (ecotoxic) substances (workplace and non-workplace)

disposal of hazardous substances (workplace and non-workplace)

regulation of all hazardous substances in non-workplaces.

What the Health and Safety at Work Act covers

Under the Health and Safety at Work Act 2015 (HSW Act), WorkSafe, or a designated

agency, enforces the various HSW HS Regulations, including:

enforcing the work related rules for the manufacture, use, handling and storage of class 1–8

hazardous substances

managing the compliance certification regime

developing safe work instruments to set detailed and technical rules for hazardous substances

providing guidance, information and tools to help organisations understand their obligations.

Designated agencies under section 191 HSW Act can perform those WorkSafe functions and exercise those powers described in the designation instrument. A designated agency takes over WorkSafe’s role for the functions and powers that were designated to it.

As at 30 January 2020, there were two ‘designated agencies’:

Maritime New Zealand (MNZ), responsible for work undertaken on board ships, and ships as workplaces

the Civil Aviation Authority (CAA), responsible for work undertaken to prepare an aircraft for imminent flight, work undertaken on board an aircraft for the purpose of imminent flight or while in operation, and aircraft as workplaces while in operation.

What the Fire and Emergency New Zealand Act 2017 covers

Fire and Emergency New Zealand manages emergencies involving hazardous substances under the Fire and Emergency New Zealand Act 2017 (FENZ Act). The trigger for a

hazardous substance emergency under the FENZ Act is lower than under the HSNO Act. We encourage you to call 111 even if the situation is not yet life threatening.

The FENZ Act gives powers to authorised staff, if there is an emergency involving hazardous substances, to make the situation safe, and activities that relate to this.

Enforcement responsibility

The HSNO Act (section 97) lists the government agencies having hazardous substance enforcement responsibilities under different circumstances.

For efficiency, one agency should lead the response to each incident with support from other agencies that have enforcement responsibilities or relevant expertise. The lead agency decides how they will respond to the incident, based on the incident or non-compliance in question.

Use table 1 to see which areas of enforcement fall under your agency’s legal responsibility.

Some areas of responsibility are shared by more than one agency. In this case, agencies are encouraged to agree on who will lead the enforcement response, and to get help from the other relevant agencies if they hold specialist expertise.

Identifying lead agency to deal with incident or non-compliance

When your agency receives notification of a hazardous substance incident or non-

compliance, the first step is to determine whether your agency should take the lead or

whether the responsibility best sits with another agency (as specified in section 97 HSNO

Act). This section identifies agencies with an enforcement role in the incident or non-

compliance and establishes the lead agency.

Identify lead agency

Identifying a lead agency depends on what the incident or non-compliance is and where it happened.

Once your agency receives a notification of a hazardous substance incident or non- compliance, start by asking the following questions.

Is it an emergency involving hazardous substances?

Fire and Emergency NZ (FENZ) is the lead agency in a hazardous substance emergency

once they arrive on the scene.

When the incident is stabilised or ‘rendered safe’,

FENZ hand over the control of the incident to another agency

or to the site owner. FENZ is not an enforcement agency under the HSNO Act, but has an enforcement role only during

emergencies.

If not an emergency, does it relate to hazardous substances?

The EPA is the lead agency in cases where, hazardous substances:

imported or manufactured without approval or with an incorrect approval assigned to them

imported or manufactured with inadequate packaging, labelling or safety data sheets

are persistent organic pollutants (POPs).

Contact our Hazardous Substances Compliance team on +64 4 916 2426 or email

If neither of the options above apply, identify a lead agency based on the location or place where the incident or non-compliance occurred.

Location or place where the incident or non-compliance occurred

Ship

MNZ is a designated agency under the HSW Act, with a role that includes enforcement related to work on board ships, and ships as workplaces.

The regional council may enforce the HSNO Act if it is in or on the premises for enforcing RMA provisions.

Note: ‘Ship’ is defined under the HSNO Act in the same way as under the Maritime Transport Act 1994, to mean:

every description of boat or craft used in navigation, whether or not it has any means of propulsion; and includes—

a. a barge, lighter, or other like vessel: