exposure draft for the hazardous substances (hazardous ... · 1. the epa proposes to issue a...

Exposure Draft for the Hazardous Substances (Hazardous Property Controls) Notice Consultation document March 2017

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Disclaimer

The contents of this proposal do not reflect final Environmental Protection Authority (EPA) policy or, to the

extent they may relate to Government decisions yet to be made, final Government policy. Words and details

that form part of the proposal do not necessarily reflect settled terminology and may change in the process of

drafting the final EPA Notice. This document does not alter the laws of New Zealand and the EPA does not

accept any responsibility or liability to any person, whether in contract, equity or tort, or any other legal

principle, for any direct or indirect losses or damage arising from reliance on the contents of this document.

How to provide feedback

We would like to hear what you think about the proposals in this document. Please submit your comments

no later than 5:00 pm, 19 April 2017.

You can download a submission form from the EPA website here.

Please email completed forms to [email protected]

The proposals contained in this document reflect the submission feedback received on the first consultation

document that outlined proposals to be included in the Hazardous Substances (Hazardous Property

Controls) Notice. The first consultation document was released in October 2016 with submissions closing in

late November 2016.

http://www.epa.govt.nz/Publications/Submission%20form%20consultation%20on%20HPC%20notice%20exposure%20March%202017.docx

mailto:[email protected]

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Table of Contents

1. Executive summary ............................................................................................................ 5

2. Background ......................................................................................................................... 7

2.1 Introduction ............................................................................................................................................ 7

2.2 Existing arrangements and linkages to Health and Safety Reform ....................................................... 7

2.3 EPA notices ........................................................................................................................................... 8

2.4 Timing of HPC Notice and transitional period ....................................................................................... 9

3. HPC Notice proposals ...................................................................................................... 11

3.1 Scope of this consultation document................................................................................................... 11

3.2 International best practice ................................................................................................................... 13

3.3 Benefits and costs of the HPC Notice ................................................................................................. 13

3.4 Conclusion ........................................................................................................................................... 13

3.5 Part 1 – Ecotoxic controls .................................................................................................................... 14

3.5.1 Qualification requirements for users of highly ecotoxic pesticides in certain situations ........... 14

3.5.2 Requirement to keep a record when applying ecotoxic substances and information to be included

in that record ............................................................................................................................. 29

3.5.3 Requirements for equipment used to handle ecotoxic substances in workplaces ................... 33

3.5.4 Application of default environmental exposure limits (EELs) to substances ............................ 35

3.5.5 Prohibition on use of ecotoxic substance in excess of environmental exposure limits ............. 36

3.5.6 Use of substances ecotoxic to terrestrial invertebrates ............................................................ 38

3.5.7 Use of substances ecotoxic to terrestrial vertebrates ............................................................... 41

3.5.8 Consolidation of controls to better manage off-target effects from hazardous substances ...... 44

3.5.9 Prohibition on application of certain class 9.1 substances directly into or onto water .............. 49

3.5.10 Controls to manage risks from storage and use of ecotoxic substances in workplaces........... 53

3.6 Part 2 – Controls relating to hazardous substances in non-workplaces ............................................. 56

3.6.1 Restriction on supply and use of certain highly hazardous substances to non-workplaces ..... 56

3.6.2 Controls on hazardous substances used or stored in non-workplaces .................................... 61

3.6.3 Controls on stationary container systems for domestic oil burning installations ....................... 68

3.6.4 Compliance checking or certification of non-workplaces storing greater than 100kg of LPG .. 73

3.7 Part 3 – Tank wagons and transportable containers used for ecotoxic substances, and the filling of

compressed air cylinders by the public ............................................................................................... 77

3.7.1 Regulation of tank wagons and transportable containers containing class 9 substances ........ 77

3.7.2 Filling of SCUBA cylinders in non-workplaces .......................................................................... 79

3.8 Part 4 – Proposed changes to the Labelling Notice ............................................................................ 81

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4. Responding to this document ......................................................................................... 86

Proposals and submission form .................................................................................................................... 86

Posting and release of information ................................................................................................................ 86

Privacy ........................................................................................................................................................... 86

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1. Executive summary

1. The EPA proposes to issue a Hazardous Substances (Hazardous Property Controls) Notice [the HPC

Notice] that will set requirements for managing risks to people in non-workplaces, and risks to the

environment; including risks arising from workplaces activities, from hazardous substances.

2. The HPC Notice will consolidate, update and replace regulations and controls currently in HSNO

regulations, group standards, transfer notices and individual substance approvals (both Part 5 and

transferred approvals).

3. The HPC Notice is made under the EPA’s powers to make EPA notices under the Hazardous

Substances and New Organisms Act 1996 (the HSNO Act). EPA notices are legally binding and will

replace a number of the regulations made under the Act. It is intended that the HPC Notice will come

into force in December 2017 to coincide with the new Health and Safety at Work (HSW) Hazardous

Substances Regulations coming into force.

4. The HSNO Act’s notice-making provisions specifically provide for public input into the making and

issuing of EPA notices. The EPA is seeking public feedback on the proposals set out in this document

to help inform the development of the HPC Notice.

5. The HPC Notice has been developed by the EPA with input from the Ministry for the Environment

(MfE), Ministry of Business, Innovation and Employment (MBIE), WorkSafe, Ministry of Health (MoH)

and the Ministry for Primary Industries (MPI).

6. A previous consultation document containing proposals for the HPC Notice was released for public

consultation on 11 October 2016. The submission period closed on 21 November 2016. That document

presented 14 proposals, with a number of specific questions asked for each proposal. A total of 57

submissions were received across all proposals, many of which influenced changes to our original

proposals.

7. This document outlines the proposals previously consulted on, summarises key submitter feedback,

provides our responses to that feedback, and outlines changes made to the earlier proposals. An

exposure draft of the HPC Notice is also provided for your consideration (refer Appendix 1).

8. Part 1 of this document discusses controls on ecotoxic (toxic to the environment) substances. Most of

these controls relate to the workplace use of pesticides, but there are also some generic controls to

prevent adverse environmental effects from the use and storage of ecotoxic substances generally.

9. Part 2 discusses controls on the availability, storage and use of hazardous substances in non-

workplaces, i.e. places other than workplaces to which the HSW Act applies. These controls will protect

the general public from exposure to hazardous substances and will also ensure there are no gaps

created between the HSW and HSNO regimes.

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10. Part 3 discusses two matters that were not included in the original October 2016 consultation

document. These areas relate to tank wagons and transportable container requirements for ecotoxic

substances, and the filling of SCUBA cylinders by members of the public.

11. Part 4 discusses proposed changes to the Labelling Notice, arising out of new requirements on

pesticide use specified in the HPC Notice.

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2. Background

2.1 Introduction

12. In October 2016, the EPA called for submissions on proposals to protect the general public and the

environment from hazardous substances. The submission period ran for six weeks, from

11 October 2016 to 21 November 2016. The consultation covered proposals for ecotoxic substances

and proposals around the availability, storage and use of hazardous substances in non-workplaces, for

example homes.

13. We received 57 submissions on a range of issues. This document provides our responses to key

submitter feedback, and outlines changes made to various proposals as a result. An exposure draft of

the HPC Notice in attached in Appendix 1.

2.2 Existing arrangements and linkages to Health and Safety Reform

14. The purpose of the Hazardous Substances and New Organisms (HSNO) Act is to protect the

environment, and the health and safety of people and communities, by preventing or managing the

adverse effects of hazardous substances and new organisms. For hazardous substances, this is

currently achieved through the use of regulations, transfer notices, group standards and bespoke

controls on individual substance approvals.

15. As a result of the health and safety reforms, many of the requirements that relate to the use of

hazardous substances in the workplace will transfer from the HSNO regime to the new Health and

Safety at Work (HSW) legislative framework.

16. The new HSW Act came into force in April 2016 and a number of regulations made under this Act are

also already in force. However, the HSW (Hazardous Substance) Regulations (HSW HS Regulations)

will commence on a later date, at this stage proposed for December 2017. It is intended that the

Hazardous Property Controls Notice will come into force at the same time as these regulations.

17. Management of the risks of hazardous substances to people in non-workplaces and to the environment

will remain under HSNO, with the HPC Notice being the primary repository for these controls. Controls

on importers and manufactures at the top of the supply chain (for example labelling, safety data sheets

and packaging) will also remain in HSNO, as will controls for the disposal of hazardous substances.

The EPA will also retain responsibility for classifying and approving hazardous substances.

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2.3 EPA notices

18. EPA notices are legally binding instruments, issued by the EPA Board. These notices are a new way

for the EPA to set rules under the HSNO Act, and will allow the EPA to consolidate and update

requirements currently spread across regulations, transfer notices, individual approvals and group

standards.

19. EPA notices are able to be updated more readily than regulations, which will allow us to align

requirements internationally with our major trading partners more easily. It is also intended that EPA

notices will simplify requirements to improve users understanding, which will in turn aid compliance.

20. Before issuing an EPA notice, the EPA must, under section 76C of the HSNO Act:

publicly notify its intention to issue the notice

give interested persons a reasonable time to make submissions on the proposal, and

consult any persons, representative groups within the hazardous substances industry or

elsewhere, government departments, WorkSafe New Zealand, and Crown entities that the EPA

considers appropriate.

21. Additionally, also under section 76C of the HSNO Act, the EPA must consider and give any weight that

it considers appropriate, to the following:

the benefits and costs of implementing measures for which the notice is being proposed

international best practice in respect of hazardous substances management, and

any other matters that the EPA considers appropriate in the circumstances.

22. Any resulting EPA notice must be publicly notified with a statement describing the consultation that

took place before the notice was made. Public notification includes publication in the New Zealand

Gazette.

23. The full list of EPA notices intended to be in place by December 2017 is listed below.

Minimum Degrees of Hazard

Classification

Labelling

Safety data sheets

Packaging

Disposal

Hazardous Property Controls

Forms and Information

Importers and Manufacturers Information (already in force)

Enforcement Officer Qualifications (already in force).

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2.4 Timing of HPC Notice and transitional period

24. It is intended that the HPC Notice will come into force in December 2017 to coincide with the HSW HS

Regulations coming into force. For the purposes of this consultation document, the actual date this

occurs will be referred to as the “commencement date”.

25. Any new substance approvals issued under Part 5 of the HSNO Act after the commencement date will

include (or cross-refer to) the relevant controls from the HPC Notice. These controls will have

immediate legal effect for those substances, subject to any transitional provisions.

26. A new set of group standards replacing the existing set will be re-issued by the commencement date.

Therefore, substances covered under a group standard will also need to comply with the HPC Notice

as soon as the notice is in force, again subject to any transitional provisions.

27. For existing approvals for individual substances, people will need to comply with the approval’s current

controls until the approval is reissued. However, there are two important exceptions:

HSNO workplace controls that have been replaced by the new HSW HS Regulations will no longer

apply. People will therefore need to comply with the HSW HS Regulations immediately after the

commencement date.

Where new controls have been included in the HPC Notice to cover a regulatory gap that would

have otherwise arisen as a result of the split of controls between HSNO and the HSW legislation,

existing approvals will need to comply with these “gap filling” controls as soon as the notice is in

force. In general, these new controls are relevant to either ecotoxic substances, or to the storage

and use of hazardous substances in non-workplaces, and are listed in Table 1.

28. The legal mechanism for commencement of these “gap-filling” controls is a transitional regulation,

which will be subject to a separate consultation process.

Table 1: Proposed “gap filling” controls to address risks arising from regulatory spilt

Control Section in Discussion Document

Qualification requirements for users of highly ecotoxic

pesticides in certain situations (note there will be

transitional provisions around this control)

Section 3.5.1

Controls to manage risks from ecotoxic substances in

workplaces Section 3.5.10

Restriction on supply and use of certain highly hazardous

substances to non-workplaces Section 3.6.1

Controls on hazardous substances used or stored in non-

workplaces Section 3.6.2

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Control Section in Discussion Document

Controls on stationary container systems for domestic oil

burning installations Section 3.6.3

Certification of non-workplaces storing greater than 100 kg

of LPG Section 3.6.4

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3. HPC Notice proposals

3.1 Scope of this consultation document

29. This consultation document is primarily focussed on the HPC Notice, which contains controls to

manage risks to the environment, and to people in non-workplaces, from the use of hazardous

substances. However, Part 4 of the document contains proposals for new controls to be included in the

Labelling Notice, as consultation on that notice has now closed. These new labelling controls are

relevant only to pesticides and have arisen as a consequence of controls that are intended to be

placed on pesticides in the HPC Notice.

30. Where relevant, this document outlines the HPC proposals previously consulted on, summarises key

submitter feedback, provides our responses to that feedback particularly where the EPA has modified

its position, and provides the revised proposals in an exposure draft of the HPC Notice (refer

Appendix 1).

31. It should be noted that this document presents only a summary of key submissions. A more in-depth

analysis of all submissions received on the October 2016 consultation document will be published at a

later date.

32. Part 1 of this document discusses controls on ecotoxic (toxic to the environment) substances. Most of

these controls relate to the workplace use of pesticides, but there are also some generic controls to

prevent adverse environmental effects from the use and storage of ecotoxic substances generally.

33. Part 2 discusses controls on the availability, storage and use of hazardous substances in non-

workplaces, i.e. places other than workplaces to which the HSW Act applies. These controls will protect

the general public from exposure to hazardous substances and will also ensure there are no gaps

created between the HSW and HSNO regimes.

34. Part 3 discusses two matters that were not included in the October 2016 consultation document. These

areas relate to the requirements for tank wagons and transportable containers for ecotoxic substances,

and the filling of SCUBA cylinders by members of the public. A summary of international best practice

in relation to these proposals is also included, along with an analysis of benefits and costs.

35. Part 4 contains proposals for new controls to include in the Labelling Notice. These new labelling

controls are relevant only to pesticides and have arisen as a consequence of controls placed on

pesticides in the HPC Notice. A summary of international best practice in relation to these proposals is

also included, along with an analysis of benefits and costs.

36. A more detailed breakdown of the contents of this document is provided below:

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Part 1 - Proposals for controls on ecotoxic (class 9) substances

Qualification requirements for users of highly ecotoxic pesticides in certain situations.

The requirement to keep a record when applying ecotoxic substances.

Requirements for equipment used to handle ecotoxic substances in the workplace.

Proposal to not apply default environmental exposure limits (EELs) to substances.

Prohibition on the use of ecotoxic substance in excess of environmental exposure limits.

Use of substances ecotoxic to terrestrial invertebrates.

Use of substances ecotoxic to terrestrial vertebrates.

Consolidation of controls to better manage off-target effects from hazardous substances.

Prohibition on application of certain class 9.1 substances directly into or onto water.

Controls to manage risks from storage of ecotoxic substances in workplaces.

Part 2 – Controls relating to hazardous substances in non-workplaces

Restriction on the supply and use of certain highly hazardous substances in non-workplaces.

Controls on hazardous substances used or stored in non-workplaces.

Controls on stationary container systems for domestic oil burning installations.

Compliance checking or certification of non-workplaces storing greater than 100 kg of LPG.

Part 3 – Matters not discussed in the October 2016 consultation document

Regulation of tank wagon and transportable containers containing or carrying class 9 substances.

Filling of SCUBA cylinders in non-workplaces.

Part 4 – Proposed requirements for labelling statements in the Labelling Notice consequential to new

requirements proposed in the HPC Notice

Generic label statement for class 9 pesticides for users to take all reasonable steps to avoid

significant adverse effects to the environment.

For certain class 9.1 substances, a label statement advising not to apply into or onto water.

For class 9.3 treated seeds, label statements advising of specific actions to be taken to avoid

adverse effects to non-target vertebrates

For class 9.3 pesticide granules, a label statement advising of specific actions to be taken to avoid

adverse effects to non-target vertebrates.

For class 9.3 vertebrate baits, a label statement advising of the appropriate application method that

must be used (or not used).

For class 9.4 substances, label statements advising not apply the substance when bees are

foraging or when plants are in flower or part flower.

Label statements that advise of the need to comply with application restrictions (rates, frequency,

or interval) and buffer zone distances set by the Authority.

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3.2 International best practice

37. Section 76C of the HSNO Act requires the EPA to have regard to best international practice and

standards for the safe management of hazardous substances when making EPA notices. An analysis

of the relevant best international practice for each proposal, as well as an overall assessment, was

undertaken in depth in the first consultation document for the HPC Notice (refer to section 5.2 of the

October 2016 consultation document).

38. For this second consultation document, the EPA has not included any further information on

international best practice for the proposals that have already been presented and submitted upon.

However, an analysis of the international best practice for the matters discussed in Parts three and four

of this document has been carried out as no previous analysis was carried out for these proposals.

3.3 Benefits and costs of the HPC Notice

39. Section 76C of the HSNO Act requires the EPA to have regard to the benefits and costs of

implementing the measures for which an EPA notice is being proposed. The EPA is then required to

give any weight that it considers appropriate to these benefits and costs, along with any other matters

considered appropriate in the circumstances.

40. An in-depth analysis on the benefits and costs for each proposal was undertaken in the first

consultation document released for public consultation on 11 October 2016 (refer to section 5.3). We

are not proposing to update this analysis for this document, as the EPA does not consider that the

benefits and costs of the specific proposals have significantly changed.

41. However, an analysis of the benefits and costs for the matters discussed in Parts three and four of this

document has been carried out as no previous analysis was carried out for these proposals.

3.4 Conclusion

42. We consider that the benefits of the proposals described in this document outweigh the costs. The

HPC Notice will set national requirements to manage risks to people in non-workplaces, and risks to

the environment, from hazardous substances. A major benefit is that it will consolidate, update and

replace regulations and controls that are currently located in a number of different regulatory

instrument, including regulations, group standards, transfer notices and individual substance approvals.

In addition, many of these proposals are required to continue regulatory measures for hazardous

substances that are already in place, due to the split of controls between health and safety legislation

and HSNO. A failure to provide for these measures in EPA notices would result in a risk of harm to

people outside the workplace and to the environment. The requirements specified in the notice are in

line with international best practice.

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3.5 Part 1 – Ecotoxic controls

3.5.1 Qualification requirements for users of highly ecotoxic pesticides in

certain situations

Background

43. When the new HSW HS Regulations come into force (at this stage, December 2017) the existing test

certification system will move out of the HSNO legislative framework and be managed under those new

regulations. As the HSW legislation does not have a mandate to set controls on ecotoxic substances,

the existing approved handler control for class 9 substances will no longer be available.

44. A replacement qualification control therefore needs to be included in the HSNO legislative framework

(via the HPC Notice) to continue to ensure that users of certain highly ecotoxic substances are

appropriately trained and qualified to prevent or minimise harm to the environment.

45. The class 9 approved handler control is typically only added to certain highly ecotoxic pesticides, only

during the use phase of the substance’s lifecycle, and only when the substance is applied in a wide

dispersive manner, used by a commercial contractor, or applied into, onto or over water.

46. The following exceptions to the approved handler control are currently provided for.

(a) A person other than an approved handler may apply the substance if the approved handler is

present at the place where the person is applying the substance, has provided guidance to the

person in respect of the application of the substance, and is available at all times to provide

assistance (regulation 9(2) of the Class 6, 8 & 9 Controls Regulations).

(b) The approved handler control does not apply to the substance after it has been applied or laid if

the substance is applied at a rate below its specified maximum application rate (regulation

47(1)(b) Class 6, 8 & 9 Controls Regulations).

47. The October 2016 consultation document proposed a set of qualifications to replace the class 9

approved handler control. The current exception to the approved handler requirement described in

paragraph 46(a) above was proposed to be carried over into the Notice. It was proposed to not carry

over the exception described in paragraph 46(b) above on the basis that the relevant notice clause will

be drafted in such a way to make it clear that the qualification requirement is only applicable while the

substance is being applied and only for certain application methods.

HPC proposal 1

Include controls in the HPC Notice that define the qualifications required by users of highly

ecotoxic pesticides, and require a qualified person to be present when those substances are being

handled.

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48. The proposal also included a “grandfathering” provision that allowed people with a current class 9

approved handler certificate to be considered a “qualified person” under the new requirements until

their certificate expired.

October 2016 proposal

49. The proposed wording in the October 2016 consultation document for this issue was:

Qualifications needed for certain uses of ecotoxic agrichemicals

(1) This clause applies to a class 9.1A, 9.2A, 9.3A or 9.4A substance that is an agrichemical.

(2) A person must not apply the substance using an application method listed in column 1 of Table 2,

unless the person holds at least one qualification in column 2, and one qualification in column 3 that

is listed against the relevant application method (a qualified person).

(3) However, a person other than a qualified person may apply the substance if a qualified person for the

relevant application method:

(a) is present at the place where the person is applying the substance; and

(b) has provided guidance to the person in respect of the application of the substance; and

(c) is available at all times to provide assistance, if necessary, to the person while the substance is

being applied by the person.

(4) A qualified person must be able to provide evidence of their qualifications upon request by an

enforcement officer.

(5) An approved handler must be treated as a qualified person until the expiry of their approved handler

test certificate.

(6) In this clause, approved handler means a person who holds a test certificate, issued under s 82 of

the Act, that:

(a) was in force immediately before the commencement of this notice; and

(b) certifies that the person has met the requirements of the Hazardous Substances and New

Organisms (Personnel Qualifications) Regulations 2001 in relation to an approved handler for a

class 9 substance

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Table 2: Qualifications required for particular application methods

Column 1 (Application method) Column 2 (Qualification A) Column 3 (Qualification B)

Aerial application to land National Certificate in Aerial

Agrichemical Application

NA

Ground-based application to land,

using mechanical equipment other

than handheld equipment

National Certificate in Agrichemical

Application

OR

GROWSAFE® Registered Chemical

Applicator certificate

OR

Rural Contractors New Zealand’s

Registered Chemical Applicator

Accreditation

NA

GROWSAFE® Introductory certificate

OR

Unit Standard 21563 Demonstrate

knowledge of the HSNO Act, and NZS

8409:2004 for the use of agrichemicals

Unit Standard 23620 Prepare to

apply, and apply, agrichemicals to

control pests in crops or pasture



control brush weeds


apply, and apply, agrichemicals for

total vegetation control

Unit Standard 6236 Operate a boom

or band sprayer for agrichemical

application



crops by band spraying

Ground-based application to land,

using motorised or powered

handheld equipment;

(a) with a tank capacity of greater

than 30 litres; or

(b) within 30 m of a water body.


OR




Unit Standard 6237 Operate a

handgun sprayer for agrichemical

application

Unit Standard 6238 Operate a

knapsack motorised mist blower for

agrichemical application

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Column 1 (Application method) Column 2 (Qualification A) Column 3 (Qualification B)

Application onto, into or over water GROWSAFE® Introductory certificate

OR






control aquatic weeds

Any application by a commercial

contractor not covered in rows

above


or




NA

Key submitter feedback and EPA response

50. The intent of the proposal to impose qualification requirements on users of highly ecotoxic substances

to replace the current approved handler control was well supported by submitters. However, there were

a number of concerns raised by submitters, with the majority covered under the following common

issues.

Disagreement with the proposal that pilots must obtain a National Certificate in Aerial Agrichemical

Application. Many submitters considered we should require pilots to have a Pilots Chemical Rating

which has a practical component as well as theoretical, and is currently compulsory under CAA

rules.

Concern that the proposal did not include specific qualification requirements for operators

undertaking urban pest management activities.

Concern that the proposal did not include specific qualification requirements for use of VTAs or

fumigants in the rural environment.

Concern about requiring GROWSAFE® certification as this is a particular branded enterprise.

Concern over adopting the unit standard approach, and/or concern over the relevance of some of

the specific unit standards referred to in the table. Also, concern that unit standards did not have

an ongoing requirement for renewal, so once someone had obtained a unit standard, there would

be no process to confirm or assess that person’s continued competency.

Concern that we had set the qualification bar too high for a number of use scenarios.

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51. Our response to these concerns is provided below.

Key submitter feedback EPA Response

Qualification for pilots

Several submitters considered that our proposal to

require pilots to obtain a National Certificate in Aerial

Agrichemical Application was too onerous, and that we

should only require the pilot to obtain a Pilots Chemical

Rating, as is the current HSNO requirement for pilots

aerially applying pesticides.

The EPA have considered these comments and discussed

this matter with the Civil Aviation Authority. On balance, we

agree that the Pilot Chemical Rating (under Part 61 of the

Civil Aviation Rules) is an acceptable level of qualification to

require of pilots. We note that this is the current HSNO

requirement for aerial application of pesticides, so the

revised proposal maintains the status quo.

We have amended the proposal accordingly.

Ensuring qualifications are relevant to skill level

Several submitters considered that the qualification

requirements for pesticides for (rural) contractors should

be set at a higher level than other types of users such

as farmers or orchardists who typically only apply

pesticides on their own land, using the same equipment,

the same type of substances and the same type of use

situation.

Contractors on the other hand, work on multiple

properties, spray more frequently and are often brought

in to undertake more complicated spray tasks.

Contractors need to be proficient in a range of

application methods using a variety of different spray

equipment, and have a greater knowledge and

understanding of different land and crop types in order

to identify and manage environmental risk.

The EPA agrees that contractors need to be more highly

trained and experienced than other commercial users such

as farmers or orchardists, given contractors require

knowledge and experience with a much wider range of use

situations.

We have therefore amended the proposal to reflect this.

Urban pest management

Several submitters were concerned that the proposed

list of use scenarios and associated qualifications did

not cover substances used in urban pest management

(UPM). These submitters pointed out that many

substances used in the UPM industry would not trigger

approved handler requirements under the new HSW

Regulations, and they were concerned about falling

competency levels in this area.

Most submitters recommended people in this industry

should be subject to qualification requirements. Some

submitters considered the National Certificate in Urban

Pest Management would be a relevant qualification, but

others considered it was too onerous for a national

We note that the primary risk from these types of substances

is to human health, which is addressed via the new HSW HS

Regulations. However, we acknowledge submitter concerns

that many UPM substances will not trigger the HSW

approved handler control.

We also note that there is potential for adverse

environmental effects arising from UPM activities, which

remains the responsibility of the EPA to prevent.

Consequently, we have looked into what would be

appropriate qualifications to include for UPM operators and

have now included a proposal for qualifications in this area

that we would like to receive further feedback on (refer to

discussion on UPM qualifications below).

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minimum standard (both in terms of cost and time

required to gain the qualification). Other submitters

suggested that we could specify individual unit

standards rather than requiring the full National

Certificate.

Rural pest management

A few submitters were concerned that we had not

included qualifications for rural pest management

operations using VTAs or fumigants.

We have considered the need to specify qualifications under

HSNO for this type of work. However, we consider that the

risks to the environment will be sufficiently managed by other

HSNO controls such as those listed below and therefore

propose that a specific class 9 qualification control is not

required.

Almost all of the substances used in rural pest

management will be class 6 substances and will

therefore be subject to training requirements under

HSW. Additionally many VTAs and all fumigants will

trigger the HSW approved handler requirement, which

will ensure a higher level of competency for users in this

area.

Many VTAs trigger the requirement to obtain a

permission from the Department of Conservation or the

Ministry of Health, which contain additional controls to

manage site-specific risks.

There are substance-specific controls on all VTAs that

place restrictions on methods of application (e.g.

restricting use to contained bait stations only) to ensure

protection of non-target vertebrates.

Fumigants have a large number of very specific controls

to ensure they are used in a manner that prevents the

substance escaping from the application area.

Unit Standards

Some submitters raised the following issues with

adopting the unit standard approach:

Unit standards would incur substantial compliance

costs for current operators and such a high level of

qualification was unnecessary for some users, for

example farmers.

We acknowledge that there are some difficulties with the unit

standard approach. Some are currently out-of-date and the

process to amend them can be slow. Additionally, the “one

size fits all” approach means that some standards are

possibly set at a higher level than is needed for certain

users. However, we also acknowledge that they provide for

national consistency in knowledge and training and are

attained by people working towards a higher qualification,

such as a National Certificate.

We therefore propose that the HPC Notice provide the

option for people to progress down the unit standard route if

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Many of the specified unit standards were a

significant increase over current approved handler

requirements1.

There is no ability to ensure continuing knowledge

and competence of the unit standard holder as once

gained, a unit standard never requires renewal or

updating.

There were also concerns over the appropriateness of

some of the specific unit standards referred to.

they wish. Other options, such as GROWSAFE® will also be

provided as an alternative for most use scenarios.

GROWSAFE®

There were concerns raised about including

GROWSAFE® certification as one of the qualification

options given this is an independent enterprise.

GROWSAFE® is the brand of the New Zealand

Agrichemical Education Trust, a non-profit organisation that

promotes the safe, responsible and effective use of

agrichemicals. It has been involved in certifying users of

agrichemicals for almost 25 years. It is well established in

the industry and we are not aware of any similar certification

system or organisation.

GROWSAFE® now has a larger number of certificates

available that cover a wide range of experience / knowledge

levels for different types of users. Our new proposal utilises

this larger range of available certificates.

In terms of quality, GROWSAFE® accredits specialist

trainers to deliver courses and regularly reviews and

appraises those trainers to ensure ongoing quality.

Most of the GROWSAFE® certificates have a 5 year expiry

period, after which time there is a renewal process to assess

and confirm people’s on-going competency.

We therefore consider it is appropriate that the HPC Notice

provides for GROWSAFE® certification as an acceptable

qualification where relevant. Providing for GROWSAFE®

certification as a means of compliance will also avoid people

needing to gain additional qualifications on top of their

GROWSAFE® certificate, which a large number of people in

the agrichemical industry already have. This will help reduce

compliance costs.

1 Currently the majority of class 9 agrichemical approved handler certificates are issued on the basis of the user having a GROWSAFE certificate.

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Presence of qualified person on site

There was a view that the qualified person should not

need to be present when the substance was being

applied, as long as they were available, i.e. able to be

contacted.

The EPA agree that for ecotoxic substances, it is not

necessary that the qualified person be on site as long as

they are available all times to provide assistance and have

provided guidance to the person in respect of the application

of the substance.

We therefore propose to delete the requirement that the

qualified person must be present at the place where the

person is applying the substance.

Revised notice proposal

52. We propose to make the following changes to the original proposal.

Replace the term “agrichemical” with “pesticide”, with a definition of “pesticide” included in the

notice. We also propose that this control will apply to class 9.1A, 9.2A, 9.3A and 9.4A plant growth

regulators. Our proposed definition of pesticide is:

pesticide—

(a) means a class 9 substance used for pest management to eradicate, modify or control organisms—

(i) in agricultural, horticultural, or forestry activities (including in a domestic context); or

(ii) in any place that may be lawfully accessed by the public (with or without payment of a charge); but

(b) does not include—

(i) veterinary medicines, fertilisers, anti-fouling paints, timber treatment chemicals, and antisapstain

chemicals; or

(ii) disinfectants or cleaning products other than when used for the treatment of micro-organisms on

horticultural crops.

Replace the proposed qualification requirement for pilots to obtain a National Certificate in Aerial

Agrichemical Application, to obtain a Pilot Chemical Rating. We have also included a requirement

that people operating UAVs (unmanned aerial vehicles) that apply pesticides must be similarly

qualified (refer question 7 below).

Require a higher level qualification for contractors compared to other types of pesticide users such

as farmers (refer question 8 below).

Remove the requirement that the qualified person must be present at the place where the person

is applying the substance. For management of class 9 hazards, we consider it is sufficient that the

qualified person is available all times to provide assistance to the person applying the substance,

and has provided guidance to the person in respect of the application of the substance at place

where the substance is being applied (refer question 9 below).

We propose not including qualification requirements for rural pest management activities (refer to

question 6 below).

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Urban Pest Management

53. The October 2016 consultation document did not propose specific qualifications for urban pest

management (UPM) operators, rather we asked for feedback on whether such qualifications should be

included in the HPC Notice, and specifically whether people thought the National Certificate in Urban

Pest Management would be an appropriate qualification.

54. We received several submissions on this issue as detailed in the table above. A number of submitters

made reference to the National Certificate in Urban Pest Management as a potential qualification. The

EPA notes that this certificate (which is a Level 2 certificate) has now been replaced with the New

Zealand Certificate in Pest Operations (Level 3) (Urban Pest Control). Careerforce, the relevant ITO,

advised that the old certificate, although listed as a level 2, actually contained 30 level 3 credits, and

consisted of 66 credits compared to 40 credits in the new certificate. Careerforce also advised that the

new certificate reflects the level of the skills and knowledge needed by the workforce as identified by

the industry during the consultation.

55. In addition to considering submitters views, the EPA also talked directly with other stakeholders in the

UPM industry, including Careerforce, the Pest Management Association of New Zealand (PMANZ) and

several training providers in this field, both in New Zealand and in Australia.

56. We also talked to test certifiers who currently issue approved handler test certificates to UPM operators

to gain some insight into what criteria they use as a basis for issuing approved handler certificates.

Some test certifiers recognise industry training programs such as the one developed by PestNetwork.

Others have developed their own training course based on their own knowledge and experience in this

field. It is noted that the current approved handler courses for UPM operators cover off risks to both

people and the environment, whereas any future qualifications required under HSNO will be focussed

on protecting the environment.

57. Based on submitter feedback, and on conversations held with other stakeholders, we don’t consider we

are yet in a position to make a firm decision on exactly what qualifications to set for UPM operators.

Instead, we will use this second consultation as an opportunity to present a number of options, and

request feedback on several specific questions asked in relation to each of the options presented. Note

that we have included an option for UPM operators to obtain three core units from the Australian Pest

Management Qualification “CPP30911 Certificate III in Pest Management (refer Option C in the table

below).

58. The five options we are proposing are outlined in the table below. It is likely that the final notice will

include multiple options. Included in the table are issues we have identified for each option. One issue

that is relevant across most of the options is the concern that there is no ability to ensure continuing

knowledge and competence, as once gained, most of the qualifications (or partial qualifications) do not

require renewal or updating.

59. We would like to obtain your feedback on the appropriateness of each of these options, and specifically

ask that you respond to the various questions asked in the question boxes below. In reviewing these

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options, please remember that the focus of these should be to ensure protection of the environment.

Responsibility for setting controls to manage risks to people (both workers and bystanders) is with the

new HSW HS legislation.

60. Careerforce has identified that they can support either the New Zealand unit standard option (which is

a partial qualification) or the New Zealand Certificate option. They are keen to work with us and other

industry stakeholders to find a solution that results in a workforce that is safe, productive, recognised

and valued. They identified impacts on cost and access of the options available and have offered to

provide some guidance on these once your feedback has been received.

61. As mentioned below under the section heading “Control to take immediate effect”, the notice will

include a “grandfathering” provision for people who have a current approved handler certificate for

class 9 agrichemicals. Such people will be considered a “qualified person” until their current approved

handler certificate expires.

Option Issue

Option A

Require UPM operators to obtain New Zealand

Certificate in Pest Operations (Level 3) (Urban Pest

Control)

The EPA notes that some submitters had a view that

the (old) National Certificate was set at too high a level

for the EPA to adopt as a national minimum

requirement, and that this certificate is a higher level

qualification than the current approved handler

certificate.

However, the EPA also notes that the October 2016

consultation was during a period of transition from the

National Certificate to the New Zealand Certificate, and

the impact of this may not have been realised by

submitters.

We would like to gain a better understanding of any

issues with the new New Zealand Certificate, in

particular are the competencies in the qualification fit for

purpose and if not what, why not, or are the issues

related to accessibility or cost. The relevant ITO

(Careerforce) will work with us and other industry

stakeholders to address identified issues.

Refer Question 1 below.

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Option Issue

Option B

Require UPM operators to obtain three unit standards

from the New Zealand Certificate in Pest Operations

(Level 3) (Urban Pest Control). The relevant unit

standards are:

Unit standard 28786 Demonstrate knowledge of

the purpose and impacts of urban pest

management

Unit standard 28787 Demonstrate knowledge of

the legislative framework and regulatory controls

governing the urban pest management industry

Either Unit standard 28791 Apply pest

management services in the urban pest

management industry

OR

Unit standard 28790 Identify pests, assess pest

activity and recommend integrated pest

management or a standard treatment.

The EPA is aware that these unit standards which

make up 20 credits of the New Zealand Certificate are

not currently able to be attained as a standalone

programme.

Nevertheless, we want to gauge whether people think it

is more appropriate to achieve a partial qualification

rather than the full New Zealand Certificate as the

national minimum standard.


Option C

Require that UPM operators obtain the following three

core units from the Australian Pest Management

Qualification “CPP30911 Certificate III in Pest

Management”. These are the three units currently

required to obtain a UPM Licence in Australia.

CPPMT3005A Modify environment to manage

pests

CPPMT3006A Apply pesticides to manage pests

CPPMT30018B Maintain equipment and chemical

storage areas

Prior to confirming this as a viable option, there will

need to be an equivalency test carried out to determine

if these three units can be recognised within the New

Zealand framework.

It would also need to be confirmed that this option

would be (widely) accessible to people in NZ.


Option D

Attendance at an industry-approved course for UPM

operators.

This option may be problematic as there would need to

be some way of having assurance that the course was

of a suitable quality, fit-for-purpose and the assessment

or other outcomes of the course met the agreed

standards.


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Option Issue

Option E

Not require any (HSNO) qualifications for UPM

operators (acknowledging that operators will need to

comply with the general duties for training etc required

under the HSW legislation)

Most submitters supported the HPC Notice including

qualification requirements for UPM operators to replace

the class 9 approved handler control in order to ensure

continued management of risks in this area.


Control to take immediate effect

62. This control is necessary to “plug” a regulatory gap that would have otherwise arisen as a result of the

split of controls between HSNO and the HSW legislation. In order to ensure new pesticide operators

are subject to qualification requirements, this provision needs to apply immediately to all relevant

existing approvals on commencement of the HPC Notice. However, the notice will include a

“grandfathering” provision for people who have a current approved handler certificate for class 9

agrichemicals. Such people will be considered a “qualified person” until their current approved handler

certificate expires.

63. The legal mechanism for allowing this provision to apply to existing approvals immediately upon

commencement of the HPC Notice is via a transitional regulation, which will be subject to a separate

consultation process.

Question 1 Qualifications for UPM operators, Option A

Question 1(a). Do you consider the new New Zealand Certificate is too high a qualification to

require for the HSNO minimum requirement? Please provide your reasons.

Question 1(b). What content in the new New Zealand Certificate do you consider is not required?

Please provide your reasons.

Question 1(c). What do you consider are the barriers to operators achieving the new New Zealand

certificate? Please provide your reasons.

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Question 2 Qualifications for UPM operators, Option B

Question 2(a). Do you think it more appropriate to have operators achieve a partial qualification

(i.e. selected unit standards) rather than the full New Zealand Certificate for the HSNO minimum

requirement? Please provide your reasons.

Question 2(b). Do you have any thoughts on which of the following unit standards would be more

appropriate to require UPM operators to obtain (taking account of the focus for environmental

protection)? Please provide your reasons.

Unit standard 28791 Apply pest management services in the urban pest management industry

OR

Unit standard 28790 Identify pests, assess pest activity and recommend integrated pest

management or a standard treatment.

Question 3 Qualifications for UPM operators, Option C

If you have any experience or knowledge about the three Australian units listed, please comment

on whether you consider:

• they are an appropriate alternative partial qualification for UPM operators in NZ

• they are set at a similar level than the NZ unit standards we are proposing

• they cover off management of risks to the environment

• other Australian units are more relevant

• there would be any cost or access issues

Question 4 Qualifications for UPM operators, Option D

Question 4. Do you have any comments on this option? If yes, please provide a detailed

response.

Question 5 Qualifications for UPM operators, Option E

Question 5(a). Do you feel that the risks to the environment from UPM activities are not sufficiently

high enough to warrant us requiring a (HSNO) qualification for UPM operators? Please provide

your reasons.

Question 5(b). If you think a qualification is needed, do you have any thoughts what this

qualification could be, other than those discussed above. If so, please provide a detailed response.

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Question 6 Qualifications for rural pest operators

We propose not including a qualification requirement for people undertaking rural pest

management operations for the reasons outlined in the table above. Do you agree with this

approach?

If not, please provide information on specific qualifications you consider would be relevant for

people in rural pest management, bearing in mind that the focus of these qualifications should be

on management of risks to the environment, rather than people (as these will be covered under

the HSW legislation).

Question 7 Propose different qualifications for pilots

Question 7(a). Do you agree with our revised proposal to require pilots spraying pesticides to have

a current Pilot Chemical Rating under Part 61 of the Civil Aviation Rules, rather than a National

Certificate in Aerial Agrichemical Application as proposed in our October 2016 consultation

document? Please provide your reasons.

Question 7(b). Do you agree that people operating unmanned aerial vehicles whilst applying

pesticides should need to have a Pilot Chemical Rating under Part 61 of the Civil Aviation Rules?


Refer to clause 49 of the notice exposure draft, attached as Appendix 1.

Question 8 Propose different qualifications for different users

Question 8(a). Do you agree with our revised proposal to require contractors to have a higher level

qualification than other types of pesticide users for example, farmers? Please provide your

reasons if you disagree.

Question 8(b). Do you agree with the range of qualifications proposed for the different types of

users? Please provide your reasons if you disagree, and provide alternative options.

Refer to clauses 50 and 51 of the notice exposure draft, attached as Appendix 1.

Question 9 Qualified person not required to be present at application site

Do you agree with our revised proposal to not require a qualified person to be present at the place

where the substance is being applied as long as a qualified person is available all times to provide

assistance, and has provided guidance to the person in respect of the application of the

substance?

Refer to clauses 50(2) and 51(2) of the notice exposure draft, attached as Appendix 1.

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Question 10 Definition of “pesticide”

Do you have any concerns with the definition of “pesticide” and what substances are covered by

this definition? If yes, please provide your reasons.


Question 11 Definition of “contractor”

Do you have any concerns with the definition of “contractor”? If yes, please provide your reasons.


Question 12 Definition of “qualified contractor”

Do you have any concerns with the definition of “qualified contractor”? If yes, please provide your

reasons.


Question 13 Definition of “qualified person”

Do you have any concerns with the definition of “qualified person”? If yes, please provide your

reasons.


Question 14 Wording of clauses in notice

Do you have any issues with the specific wording of the proposed clauses for these controls?

If yes, please provide your reasons.

Refer to clauses 46 – 52 of the notice exposure draft, attached as Appendix 1.

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3.5.2 Requirement to keep a record when applying ecotoxic substances and

information to be included in that record

Background

64. Regulation 5 of the Classes 6, 8 & 9 Controls Regulations requires a record be kept when class 6, 8

and 9 substances are used for the purposes of causing biocidal action in situations that may result in

the public, or the environment, being exposed to the substance. Regulation 6 specifies the type of

information that is required to be kept in the record. These controls are primarily relevant to

agrichemical use.

65. The October 2016 consultation document proposed to transfer regulations 5(2) and 6 with minor

modifications, into the HPC Notice. Regulation 5(1) requires a record to be kept when class 6 and 8

substances are used for the purposes of causing biocidal action and will be transferred to the HSW HS

Regulations. As such, one of the considerations was the extent to which the wording in the HPC Notice

was consistent with the HSW HS Regulations.



Requirement to keep a record of application of class 9 agrichemicals in a workplace

(1) This clause applies to a class 9.1A, 9.2A, 9.3A or 9.4A substance that is an agrichemical.

(2) A PCBU with management or control of the substance must ensure that a written record is kept of

each application of the substance if 3 kg or more of the substance is applied within 24 hours in a

place where the substance is likely to enter air or water and leave the application area.

(3) Subclause (2) does not apply to a veterinary medicine that is, or is to be, administered to or

dispensed for an animal.

Compare: SR 2001/117 r5(2), SR [HSW HS Regs] r13.4

Matters to be included in the record

(1) A record required to be kept under clause [Requirement to keep a record of application of class 9

agrichemicals] must include the following information:

(a) the name and HSNO approval number of the substance:

(b) the date and time of each application or discharge of the substance:

(c) the classification or classifications of the substance:

(d) the amount of the substance applied or discharged:

(e) the location where the substance was applied or discharged:

(f) if the substance is applied to or discharged in the air, a description of the wind speed and

direction when the substance was applied or discharged:

(g) the name of the user of the substance and the users address.

HPC proposal 2

Amend and transfer regulations 5(2) and 6 of the Classes 6, 8 & 9 Controls Regulations into the

HPC Notice.

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(h) other measures taken to ensure there are no significant adverse effects beyond the boundary of

the application area:

(i) in relation to aircraft carrying out aerial application of a substance, electronic data files that

indicate locations of where the substance has been dispensed and aircraft secondary positional

information (for example, geographic information system original shape files, based on Global

Navigation Satellite System data).

(2) A record must be kept for not less than 3 years after the date on which the substance that the record

relates to is applied or discharged.

Compare SR 2001/117 r6, SR [HSW Regs] r13.5.


67. The majority of submitters supported the proposal to transfer regulations 5(2) and 6 of the Classes 6, 8 &

9 Controls Regulations, with minor modifications, into the HPC Notice. They noted that this proposal

would permit chemical usage to be tracked, facilitate compliance investigations, and encourage

responsible behaviour and awareness of the risks associated with substance application.

68. Where submitters had concerns, these are summarised in the table below, along with our responses.


When records should be kept

Some submitters considered records should be kept for

all agrichemical applications and this requirement should

not be limited to applications above 3kg.

Some submitters also considered this requirement

should not be qualified by whether the substance was

only “likely” to enter air or water and leave the

application area”, and that records should be kept

regardless of any “likelihood” for off-target drift.

The intention of this provision is to ensure that records are

kept when a substance is used in a way that may result in

the environment being exposed to significant amounts of

an ecotoxic substance.

The EPA therefore considers it is appropriate to retain the

3 kg threshold, and the current use of the term “likely”.

Control to apply to workplace use only

Most submitters expressed support that the proposed

regulation apply only to substances used in the

workplace. In particular, they noted that enforcement of

this requirement in non-workplaces would be difficult and

that non-workplace compliance is likely to be low.

However, some submitters raised concerns about the

risks posed to the environment by non-workplace use of

> 3 kg quantities of ecotoxic substances.

The EPA has considered these submissions and has

decided that it is appropriate to retain the proposed

restriction to workplaces. This will ensure consistency with

the HSW HS regulations and with the intent of this

provision. Further, the EPA considers it would be unusual

for non-workplace use to exceed 3 kg and agrees with

submitter comments on the difficulties surrounding

enforcement in such cases.

Home users will be informed of measures they must take

for the safe use of the substance through instructions on

the product label.

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Range of substances covered

There was mixed response from submitters on the range

of substances that would be captured by this provision.

Some submitters considered this requirement should

apply to all ecotoxic substances that were used in a

manner that could cause harm to the environment, not

just agrichemicals as proposed, e.g. vertebrate toxic

agents, fumigants, fertilisers, veterinary medicines, and

substances used for industrial purposes such as roading,

drilling and construction.

It is noted that the equivalent regulation in the HSW HS

regulations covers substances intended for “biocidal

action”. However, there was concern by some submitters

that this term would inadvertently capture substances

such as antifouling paints and queried whether this was

intended.

We want this control to apply to the same range of

substances as it currently does in the HSNO regulations,

i.e. primarily agrichemicals, VTAs and fumigants, but not

substances such as timber treatment chemicals,

antifouling paints.

We have therefore re-worded the control and introduced

the term “pesticide”. A definition of this term is provided to

clarify exactly what types of substances are covered by

this provision, and those that are excluded.

It is noted that the EPA will retain the ability to add, vary,

or delete this provision, under section 77 of the HSNO

Act, on a case by case basis as part of the approvals

process.

We acknowledge that this wording is not consistent with

the proposed wording in the equivalent HSW HS

regulation that uses the term “biocidal action”. However, it

is consistent with a number of other clauses in the HPC

Notice and, more importantly, adds clarity to what types of

substances are captured by this provision.

Matters to be included in the record

Some submitters questioned the need to include the

HSNO approval number and HSNO classification in the

record, and were of the view that recording such

information was burdensome, costly, and unnecessary.

These submitters considered that recording the product

name would suffice.

The EPA has considered these submissions and also

took into account the equivalent record-keeping

requirement for class 6 and 8 substances in the draft

HSW HS regulations.

The current requirement is that the HSNO classification

be included in the record (refer regulation 6(1)(c) of the 6,

8 and 9 Controls Regulations). However, we agree with

submitters that this is unnecessary and propose to no

longer require this.

In place of the HSNO classification, we propose requiring

that the HSNO approval number be recorded. This is a

lesser burden for the user than the current regulatory

requirement to record the entire classification, and should

be easy for the user to locate (the approval number is

required to be on the SDS, which the user must have, and

is sometimes on the product label). Inclusion of the HSNO

approval number in the record will be important from a

compliance / enforcement perspective as it can be difficult

for an enforcement officer to determine the HSNO

approval number from the trade name.

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Consistency with HSW HS regulations

Some submitters raised concerns about consistency of

the requirement in the HPC Notice with the equivalent

requirement in the HSW HS Regulations.

The EPA acknowledges the need for consistency and

tried to maintain this wherever possible. However, there

are some areas where we have proposed slightly different

wording from the HSW regulations and consider these

differences are justified as the focus of the HSNO control

is on environmental protection, while the focus of the

HSW HS regulations is on protection of workers.


69. Key changes to the original proposal:

replace the term “agrichemical” and include a definition of “pesticide” in the notice. A proposed

definition of “pesticide” is provided in the previous section (paragraph 52). If you would like to

comment on this definition, please do so under Question 10 in that section.

removal of the requirement to include the HSNO classification in the record

70. Refer to clause 56 of the notice exposure draft for the specific wording of the revised clause (attached

as Appendix 1).

Question 15 Wording of clause in notice

Do you have any issues with the specific wording of the proposed clause for this control?



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3.5.3 Requirements for equipment used to handle ecotoxic substances in

workplaces

Background

71. Regulation 7 of the Classes 6, 8 & 9 Controls Regulations specifies that equipment used to contain and

dispense class 6, 8 and 9 substances must be of a certain standard, and appropriately maintained.

72. The October 2016 consultation document proposed to transfer this regulation into the HPC Notice, but

amend it to make it relevant to only class 9 substances. This regulation will also be carried across into

the HSW HS Regulation for class 6 and 8 substances so there was a need to consider the extent to

which the notice provision was consistent with the HSW regulations.



Equipment used to handle class 9 substances in the workplace

(1) This clause applies to a PCBU who directs the carrying out of work using a class 9 substance.

(2) The PCBU must ensure that equipment used to handle the substance—

(a) retains the substance, without leakage, at all of the temperatures and pressures at which the

equipment is used; and

(b) dispenses or applies the substance, without leakage, at a rate and in a manner that the

equipment is designed for.

(3) The PCBU must ensure that the equipment is accompanied by documentation about the use and

maintenance of the equipment to enable the equipment to be used and maintained in a manner that

complies with subclause (2).

(4) The PCBU must ensure that the documentation provided under subclause (3) is—

(a) readily available to any worker handling the substance; and

(b) readily understandable by any fully trained worker required to access it.

(5) This regulation does not apply to a solid veterinary medicine (including a cream, capsule, or implant)

when it is being administered to or dispensed for an animal, unless the substance is a—

(a) a powder, granule, or other finely divided material; or

(b) dissolved before being administered to an animal.

Compare: SR 2001/117 r 7(1), (2).

HPC proposal 3

Amend regulation 7 of the Classes 6, 8 & 9 Controls Regulations to be relevant to the workplace

use of class 9 ecotoxic substances only and transfer amended regulation into the HPC Notice.

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74. The majority of submitters supported the proposed control on equipment used when handling ecotoxic

substances. Similarly, there was overall support for maintaining consistency between the equipment

control in the HPC Notice, and the one in HSW HS Regulations with submitters noting this would

reduce confusion, facilitate compliance, and avoid duplication.

75. There were a few isolated concerns from submitters as noted in the table below.


Some submitters considered that these requirements

should include urban pest management activities.

The EPA agrees, and notes that urban pest

management activities will be captured under this

provision.

Concerns were raised about the risks that may occur

during home-use of ecotoxic substances if incorrect

or inappropriate equipment was used, given that

there may be significant quantities of substances

involved.

The EPA considers that the appropriate means of

ensuring home users are informed about safe use of

ecotoxic substances is through labelling

requirements. It is further noted that it would be

difficult to enforce such requirements in domestic

settings.

Some submitters considered the notice should

include a provision to require equipment to be

cleaned in a way that ensures residue is not spilt into

the environment, or equipment contamination does

not occur between applications of different

substances.

The EPA has considered this proposal but notes the

intent of this provision is to ensure that equipment is

fit-for-purpose and does not leak. As such,

requirements for cleaning of equipment are beyond

the scope of the current proposal. This is also the

approach taken with the equivalent clause in the

HSW HS Regulations.


76. The clause has been re-worded to more directly cross-refer to the equivalent provision in the HSW HS

Regulations. Refer to clause 55 of the notice exposure draft (attached as Appendix 1).





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3.5.4 Application of default environmental exposure limits (EELs) to

substances

Background

77. Regulation 32 of the Classes 6, 8 & 9 Controls Regulations requires default environment exposure

limits (EELs) to be set in certain circumstances.


78. The October 2016 consultation document proposed to not transfer existing regulation 32 into the HPC

Notice, i.e. to not include a requirement to set default EELs. The reasons for this were discussed in the

consultation document and are as follows.

Where ecotoxicological data for a substance exists that indicates it poses an environmental risk, it

is considered more scientifically robust to calculate a substance-specific EEL based on an

assessment of this data, than to assign an arbitrary default EEL value.

If no ecotoxicological data is available, there is no scientific basis upon which to set the default

EELs, as there is no evidence to show that the substance poses an environmental risk.

Limited information could be found to justify why the specific default EEL values listed in the

regulations were selected.


79. The proposal to not carry across the default EEL provision into the HPC Notice was well supported by

submitters, with none opposing this proposal.


80. This control will not be carried across into the HPC Notice.

HPC proposal 4

That existing regulation 32 of the Classes 6, 8 & 9 Controls Regulations that sets default EEL

values is not carried over into the HPC Notice.

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3.5.5 Prohibition on use of ecotoxic substance in excess of environmental

exposure limits

Background

81. The Classes 6, 8 & 9 Controls Regulations include a number of regulations relating to EELs to ensure

ecotoxic substances are not used in ways that lead to adverse environmental effects. These include:

prohibition on the use of ecotoxic substances that result in a breach of any EEL (regulation 45)

where an EEL has been set for surface water, the EELs apply after reasonable mixing (regulation

44)

provision to exempt EELs from applying in an application area (regulation 47(1)(a)).

82. The October 2016 consultation document proposed to carry over the requirements specified in these

three regulations into the HPC Notice.



Prohibition on use of ecotoxic substance in excess of environmental exposure limit

(1) A person must not use a class 9 substance in a manner that allows the concentration of the

substance to exceed the environmental exposure limit set for the substance in the environmental

medium concerned.

(2) However, where there is an environmental exposure limit for a substance in surface water, a person

must not use the substance in a manner that allows the substance to exceed the limit within receiving

waters after reasonable mixing.

(3) Subclauses (1) and (2) only apply to environmental media beyond the application area.

(4) This clause does not apply where the Authority has set the relevant environmental exposure limit for

guidance only.


84. Most submitters who provided comment on this issue supported the proposal. There were a few

concerns from isolated submitters as outlined below.

HPC proposal 5

Transfer existing regulations 44, 45 and 47(1) from the Classes 6, 8 & 9 Controls Regulations

2001 into the HPC Notice.

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One submitter pointed out difficulties around the

setting of EELs, while others raised concerns around

the enforcement and monitoring of EELs.

Another submitter noted there would be training costs

for the relevant enforcement agency.

The EPA acknowledges there are difficulties in the setting,

monitoring and enforcing of EELs. Nevertheless, the EPA

considers that EELs are a useful regulatory tool, especially

with the added flexibility around the setting of EELs provided

by section 77B of the Act.

However, we have decided not to carry across the default

EEL values into the HPC Notice for the reasons discussed

in section 3.5.4 of this document.


85. A minor change to the proposed clause has been made to clarify the meaning of this control. Refer to

clause 36 of the notice exposure draft for the specific wording of the revised clause (attached as

Appendix 1).





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3.5.6 Use of substances ecotoxic to terrestrial invertebrates

Background

86. Regulation 49 of the Classes 6, 8 & 9 Controls Regulations sets controls on the use of substances that

are ecotoxic to terrestrial invertebrates in order to protect bees.

87. The October 2016 consultation document proposed to carry across the intent of this provision, but to

modify the wording to more broadly protect invertebrate pollinators, not just bees.



Use of substances ecotoxic to terrestrial invertebrates

(1) This clause applies to a class 9.4 substance when it is in a form that invertebrate pollinators are likely

to be exposed to it during, or subsequent to, its application to a plant.

(2) A person must not apply the substance in an application plot in which —

a) invertebrate pollinators are foraging; or

b) plants are in flower or part flower.

(3) Subclause (2) does not apply if either:

(a) the application plot is indoors, and invertebrate pollinators would not reasonably be expected to

forage on the plants in the plot; or

(b) both of the following apply:

(i) the substance is applied after dusk and before dawn; and

(ii) any spray residue would reasonably be expected to have dried before dawn.

Non-contact periods for substances ecotoxic to terrestrial Invertebrates

(1) This clause applies to a class 9.4 substance where the Authority has specified a non-contact period

as an additional control on the approval for the substance.

(2) In addition to clause x [Use of substances ecotoxic to terrestrial invertebrates], a person must not

apply the substance in an application plot in which, subsequent to the application of the substance,

plants are likely to flower at a time within the non-contact period.

HPC proposal 6

Amend and transfer existing regulation 49 from the Classes 6, 8 & 9 Controls Regulations into the

HPC Notice.

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89. All submitters who responded to this issue agreed with the intent of this provision, i.e. that controls

should be imposed on users spraying ecotoxic substances to prevent or minimise adverse effects to

invertebrate pollinators, especially bees. However, there were some concerns around the scope of the

control, and the specific wording proposed. These concerns, and our responses to them, are

summarised in the table below.


Wording too restrictive

A number of submitters indicated that this control could

be a problem if the pest that needed to be managed

was itself a pollinator (e.g. butterflies, white fly).

The EPA acknowledges the need to control certain pest

pollinators and has changed the wording to refer to

protecting “non-target pollinators”.

Wording too broad

Several submitters noted that the wording of the

proposed control was too broad as it did not allow

substances to be applied when plants were in flower,

and not all flowering plants are attractive to pollinators

(e.g. grasses and cereals).

The EPA agrees, and has amended the clause to include

the wording “likely to be visited by non-target invertebrate

pollinators”.

This will allow plants in flower that are not attractive to

invertebrate pollinators to be treated with the substance

(unless bees are foraging in the application plot).

Protection of night pollinators

Some submitters were concerned that the wording of

the proposed control does not protect night-time

pollinators.

Submitters also noted that if application could only

occur between dusk and dawn, pesticide applicators

might need to work long hours at night.

The EPA acknowledges the concerns around the protection

of night pollinators and has amended the clause

accordingly.

Application of class 9.4 substances is now prohibited at any

time when plants are in flower or part flower, and likely to be

visited by non-target pollinators.

Clause should exclude solids

Some submitters indicated that not all physical forms

of substances result in exposure to pollinators, e.g.

granules, and such substances should be excluded.

The EPA considers that solid substances can still be

harmful to non-target invertebrate pollinators either when

these are dissolved prior to application, or when the

substance is systemically transferred in the plant (e.g. soil

granules). Solid substances will therefore not be excluded

from the clause by default. However, if the substance is in a

form that invertebrate pollinators are not likely to be

exposed to either during, or after it is applied to a plant, the

clause does not apply and the substance can be used.

Clarification that “plants” includes weeds

Some submitters requested that the EPA clarify that

the term “plants” also include weeds.

The EPA has amended the clause to clarify that “plants”

include trees and weeds.

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Exclusion for biosecurity activities

MPI requested that the notice provides them with an

exemption from complying with this control when

undertaking biosecurity response activities.

The EPA acknowledges that in a biosecurity response

situation, it may be appropriate to exempt substances from

complying with the prescribed controls. However, we

consider that this is a matter that is outside the scope of the

HSNO reform work, and should be addressed outside the

HPC consultation process.


90. A number of changes were made to the wording of various sub-clauses in this provision to address

submitter concerns and provide more clarity. These changes include:

clause now refers to protecting “non-target pollinators”

clause amended to “likely to be visited be non-target invertebrate pollinators”

clause amended to clarify that “plants” includes trees and weeds

clause amended to protect night pollinators

91. Refer to clause 45 of the notice exposure draft for the specific wording of the revised clause (attached

as Appendix 1).





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3.5.7 Use of substances ecotoxic to terrestrial vertebrates

Background

92. The Classes 6, 8 & 9 Controls Regulations include a number of regulations to protect non-target

terrestrial vertebrates from harm when using the following types of hazardous substances:

seeds treated with a hazardous substance (regulation 50)

pesticides in granular form (regulation 50)

vertebrate baits (regulation 51).

93. The October 2016 consultation document included proposals to modify the existing regulations to

better manage the risks to non-target terrestrial vertebrates. Controls that are routinely added to

substance approvals under section 77A of the HSNO Act were included where relevant.



General duty on persons using substances ecotoxic to terrestrial vertebrates

A person using a class 9.3 substance must take all reasonable steps to ensure that no adverse effect to

non-target terrestrial vertebrates arises from the use of the substance.

Additional controls for class 9.3 substances on seeds

(1) A person using a class 9.3 substance to coat a seed must ensure the substance, once coated on the

seed, appears blue or green in colour.

(2) A person using a class 9.3 substance when it is coated on a seed must ensure the substance:

(a) appears blue or green in colour:

(b) is not accessible to birds:

(c) if sown, is completely covered with soil.

Additional controls for class 9.3 substances in granular form

A person using a class 9.3 substance in granular form must take all reasonable steps to ensure that:

(a) the granules are completely covered with soil once applied; and

(b) birds are actively deterred from foraging on an application plot during any period when the granules

are not completely covered with soil.

HPC proposal 7

Include provisions in the HPC Notice to set controls on the use of substances ecotoxic to terrestrial

vertebrates to protect non-target vertebrates.

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Additional controls for class 9.3 substances used as vertebrate bait

(1) This clause applies to a class 9.3 substance where the Authority has specified one or more of the

following matters (bait specifications) as additional controls on the approval for the substance:

(a) colour:

(b) bait size:

(c) degree of palatability:

(d) methods of release:

(e) repellents or attractants to be used with the substance.

(2) Where it is reasonable to expect the substance may be used outdoors as bait, or part of bait, for

vertebrate species, a person importing or manufacturing the substance must ensure that the

substance meets the bait specifications described in subclause (1)(a) - (c).

(3) A person must not use the substance outdoors as bait, or part of bait, for vertebrate species, unless it

is used in accordance with each of the bait specifications.


95. All submitters who responded to this issue agreed with the intent of this provision – that controls should

be imposed on ecotoxic substances to prevent or minimise adverse effects to non-target terrestrial

vertebrates. However, there were a number of concerns with some of the specific requirements

proposed, as summarised in the table below.


Colour of treated seeds

There was a general consensus that treated

seeds should be dyed a distinguishable colour to

make them less attractive to non-target

vertebrates, especially birds. However, many

submitters were opposed to the specific

requirement that treated seeds be dyed blue or

green.

The EPA agrees to revise the proposed control to require

treated seeds to be coloured in any distinguishable colour,

rather than only blue or green.

We retain the ability to vary this control via section 77 of the

HSNO Act for specific substances to stipulate a specific

seed colour if a risk assessment deems this is necessary.

We consider that birds will be adequately protected by the

requirement that the sown seed must be either covered

with soil, or some other method used to deter or prevent

birds from foraging on the sown seeds.

Requirement to cover treated seeds / granules

Some submitters were concerned that the

proposed wording to completely cover treated

seeds and granules with soil after sowing was

unrealistic with some application methods, e.g.

broadcast application.

The intent of these provisions is to limit exposure of

terrestrial vertebrates, such as birds. However, the EPA

acknowledges that for some uses, it is unrealistic to

completely cover treated seeds or granules, for example

when aerially applied. We therefore propose to revise the

wording for the relevant provisions to allow other methods

to be used to deter or prevent birds from foraging on the

sown granules or seeds. Other minor changes to the

wording were made to clarify the purpose of the clause.

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General concerns

One submitter suggested that the control should

only protect native non-target terrestrial

vertebrates.

This same submitter also noted that even when all

reasonable steps are taken, non-target effects can

still occur and that the conservation goal should

be to protect populations rather than individuals.

The EPA considers that there are non-target organisms

other than native species that should be protected, for

example, companion animals or introduced non-pest

species. Therefore, the EPA does not agree to limit the

clause to native species.

The EPA recognises that the conservation goal of wild

species is at a population level, rather than the individual

level. However, it cannot be expected that for each baiting

operation, the population dynamic of all potential non-target

species be monitored.

The EPA acknowledges that even when all reasonable

steps are taken, non-target effects can still occur. The

clause does not prevent the use of the substance in this

case as long as “all reasonable steps” are taken.


96. A number of changes were made to the wording of various sub-clauses in this provision to address

submitter concerns and provide more clarity. The key changes include:

treated seeds are now required to be coloured in (any) distinguishable colour, rather than only blue

or green

rather than requiring treated seeds and granular pesticides to be completely covered with soil after

sowing, other methods can be used to deter or prevent birds from foraging on the sown granules or

seeds.

97. Refer to clauses 40 – 44 of the notice exposure draft for the specific wording of the controls covered by

this section (attached as Appendix 1).




Refer to clauses 40 – 44 of the notice exposure draft, attached as Appendix 1.

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3.5.8 Consolidation of controls to better manage off-target effects from

hazardous substances

Background

98. The current controls to manage spray drift are located in a number of places. The Classes 6, 8 and 9

Controls Regulations include a number of provisions to prevent spray drift, such as the need to set

application rates (regulation 48). Many other spray drift controls are set under section 77A of the HSNO

Act on a case-by-case basis when the substance is approved.

99. The controls applied under section 77A often vary from substance to substance as they are based on

the outcome of a risk assessment process that is specific to that substance. Examples of controls to

minimise the impact of spray drift include the application of buffer zones, restrictions on application

rates, frequencies and intervals, application methods and equipment, including minimum droplet size

specification, and the use of label statements.

100. In the October 2016 consultation document, we proposed that the HPC Notice included provisions

relating to spray drift prevention. These provisions acknowledge that the EPA routinely sets controls to

manage spray drift on substance approvals under section 77A.


101. The proposed wording in the October 2016 consultation document was:

Measures to manage off-target effects of hazardous substance

Proposed Control 1 – General duty on persons applying class 9 substances

General duty

A person applying a class 9 substance must take all reasonable steps to ensure that the application of the

substance does not cause any significant adverse effects to the environment beyond the application area.

Proposed Control 2 – Maximum application rates, frequencies and intervals

Restrictions on the application of a class 9 substance

(1) This clause applies where the Authority has imposed one or more of the following matters for a

specified application method, as additional controls on the approval:

(a) a maximum application rate:

(b) a maximum application frequency:

(c) a minimum application interval.

(2) A person must not apply a substance using the specified application method in an application plot-

(a) at a rate greater than the maximum application rate; or

HPC proposal 8

Consolidate existing controls applicable to managing the off-target effects resulting from the

application of hazardous substances, such as effects from spray drift.

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(b) more frequently than the maximum application frequency; or

(c) at any time subsequent to a previous application of the substance, that is within the minimum

application interval.

Compare SR 2001/117 r48

Proposed Control 3 – Requirements for buffer zones

Requirement to establish a buffer zone

(1) This clause applies where the Authority has imposed a buffer zone from an identified sensitive area,

as an additional control on the approval for the substance that applies when a particular application

method is used.

(2) A person using the application method must not apply the substance within the buffer zone.

Definitions applicable to proposed control

Buffer zone means a horizontal distance between an identified sensitive area and the edge of the area

where the substance is being applied.

Identified sensitive area means a place that may be significantly adversely affected by the application of

the substance, as specified by the Authority in relation to a control for a substance, and may include

(without limitation) the following:

(a) places where members of the public are likely to be present and are unable to readily evacuate, for

example, a school, playground, early childhood centre, prison, hospital, or long-term care facility:

(b) water bodies, including public water supply catchments and intakes:

(c) sensitive habitats, such as wetlands, indigenous vegetation habitat areas, or reserves:

(d) public roads, public places, and amenity areas.


102. There was general support from submitters for the proposed controls relating to spray drift prevention.

However, a number of submitters had concerns, many of which related to the detail around the setting

of application rates and buffer zones. We acknowledge these concerns, but point out that these

controls are set via section 77A at the time the substance is approved on the basis of a quantitative risk

assessment. The detail of these controls therefore resides in the substance approval, not the HPC

Notice. The HPC Notice merely requires compliance with the various spray drift prevention methods

prescribed in the substance approval. Consequently, we have not provided a detailed response to

submissions of this nature in this document, as it is beyond the scope of the HPC Notice.

103. Submitter feedback on key issues are summarised in the table below, along with the EPA response.



There was general consensus that spray drift

management controls should apply across the board to

all ecotoxic substances, not just to agrichemicals.

The relevant clauses are worded to include all class 9

substances.

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Notification of aerial application

One submitter considered that the HPC Notice should

include a control to notify neighbours when pesticides

are aerially applied.

The EPA notes that a few substances such as 1080

baits have a notification requirement control (set via

section 77A). However, it is not a control that is

widely set so is outside the scope of the current “lift

and shift” mandate of this HPC Notice.

Definition of buffer zone

One submitter noted that our definition of buffer zone is

inconsistent with the definition included in the exposure

draft of the HSW HS Regulations (Regulation 14.2)

The EPA notes that the HSW definition for buffer

zones in regulation 14.2 relates specifically to

fumigants. Our definition covers spraying of

pesticides in an agricultural or horticultural context so

it is appropriate to have different definitions.

However, following further consideration of this

definition, we have made some changes to it (refer

clause 38 of the notice).

Operators should be qualified

Two submitters considered that agrichemicals should

only be applied by qualified individuals who have the

skills to implement measures to prevent spray drift, e.g.

use of appropriate application methods, and calculation

of suitable buffer zones.

The EPA agrees with this view, and are proposing to

implement qualification requirements for users of

highly ecotoxic pesticides (refer section 3.5.1 of this

document).

Controls should be on the label

The comment was made that the label should advise

users of any application restrictions (e.g. restricted to

ground application only, buffer zones etc).

We are proposing that pesticide labels contain

additional statements to advise users of how to apply

a substance safely (refer to Part 4 of this document).

Notice should not be prescriptive

The majority of submitters considered that the notice

should not contain prescriptive standards to manage

spray drift, and that best-practice guidelines should be

available in guidance material.

However, one submitter considered that all information

should be located in one place and considered the

notice should include prescriptive requirements based

on best practice.

The EPA agrees that guidance material is the best

place to have prescriptive measures to aid

compliance.

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Other methods to prevent spray drift

One submitter commented that there were other spray

drift management options not included in the notice for

example, shelterbelts and spraying in favourable wind

conditions (e.g. wind speed and direction).

The EPA agrees that there are many things users

can do to prevent or mitigate spray drift. This was the

reason we included a generic performance-based

requirement that requires people to take all

reasonable steps to ensure the substance does not

cause significant adverse environmental effects

beyond the application area (refer clause 35 in the

notice). Use of shelterbelts and consideration of wind

conditions are means of meeting the requirements of

this clause.

Concerns with general duty

Two submitters felt that the inclusion of a general duty

(proposed control 1) may be difficult to enforce,

especially in non-workplaces.

This point is acknowledged. However, it was

considered necessary to include this requirement as

it offers enforcement agencies an additional option for

enforcement action in cases where there is no clear

breach of any other controls.

Exception requested for biosecurity activities

MPI requested that the notice provides them with an

exemption from complying with this control when

undertaking biosecurity response activities.

The EPA acknowledges that in a biosecurity

response situation, it may be appropriate to exempt

substances from complying with the prescribed

controls. However, we consider that this is a matter

that is outside the scope of the HSNO reform work,

and should be addressed outside the HPC

consultation process


104. Key changes to the original proposal include:

minor changes to the wording and formatting of these clauses

changes to some of the definitions to increase clarity

105. Refer to clauses 37 and 38 of the notice exposure draft for the specific wording of the revised clauses

(attached as Appendix 1).

Question 20 Definition of buffer zone distance

We have replaced the definition of “buffer zone” with “buffer zone distance”. Do you agree with the

proposed definition of “buffer zone distance”? Please provide your reasons.


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Question 21 Definition of sensitive area

We have replaced the definition of “identified sensitive area” with “sensitive area”. Do you agree

with the proposed definition of “sensitive area”? Please provide your reasons.


Question 22 Definition of application plot

We have made a slight amendment to the definition of “application plot”. Do you have any issues

with the new definition? Please provide your reasons.





Refer to clauses 37 and 38 of the notice exposure draft, attached as Appendix 1.

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3.5.9 Prohibition on application of certain class 9.1 substances directly into or

onto water

Background

106. There is currently no default control in existing HSNO regulations that prohibits the application of

hazardous substances directly to water.

107. To address this risk, the EPA has added a control (under section 77A of the HSNO Act) to most

pesticide approvals to prohibit their application directly onto, into or over water. The EPA considers this

control is necessary in order to prevent harm to the aquatic environment from the use of highly ecotoxic

pesticides.

108. The October 2016 consultation document proposed to include this control directly in the HPC Notice

rather than continuing to add it under section 77A to individual substance approvals. Having the control

in the notice rather than substance approvals will improve transparency, efficiency and consistency.

109. It is noted that this control is currently not added to fertilisers, veterinary medicines, VTAs and most

fumigants2. We intend to maintain the status quo for these types of hazardous substances. It is also

noted that the EPA retains the ability to add or delete this control from individual substances via section

77A where the specific use of the substance may require application into or onto water, e.g. aquatic

herbicides.



Prohibition on application of class 9.1 pesticides directly onto, into or over water

A class 9.1 pesticide must not be applied directly into, onto or over water.


111. While the majority of submitters supported this proposal, there were some concerns, primarily around

inclusion of the term “over” water, and the scope of pesticides covered by this provision. These

concerns, and other relevant feedback, are summarised in the table below, along with the EPA

response.

2 This control was added to Ripper (HSR100349).

HPC proposal 9

Include a control into the HPC Notice that prohibits the application of class 9.1 pesticides directly

onto, into or over water.

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Concern with “over” water

Several submitters expressed concerns with the term

“over” water. As the definition of water includes

underground water, this control would therefore

effectively prohibit application of pesticides onto any

land where groundwater is present, for example

underground aquifers.

The EPA notes submitters concerns with the word

“over” water. The EPA has removed this word from

the proposed control.


Some submitters wanted clarity about what types of

pesticides were covered by this control, for example

whether it covered only pesticides used in horticulture

or agriculture, or it covered substances more widely,

such as timber treatment chemicals, antifouling paints

vertebrate toxic agents or fumigants.

One submitter considered this control should be

applied to all ecotoxic substances, not just pesticides.

The EPA consider this control should apply to the

same range of substances as it currently does, i.e.

pesticides used in horticulture or agriculture, as well

as pesticides used in public places, such as verges

and public parks. It is not currently applied to

substances such as timber treatment chemicals,

antifouling paints, VTAs or fumigants and this position

will be maintained.

A definition of “pesticide” has now been included in

the notice that clarifies exactly what use patterns and

substance types are covered under this term. An

additional sub-clause has been added to this

particular control to specifically exempt it from

applying to VTAs and fumigants.

Note that we are now proposing to amend this

provision to also make it relevant to plant growth

regulators. We note that this control has not been

applied consistently to all plant growth regulators to

date, but we consider the risks of these substances

are such that they should not be permitted to be

directly applied onto or into water.

Continue to set control under section 77A

One submitter was concerned that the control would

inadvertently capture substances not currently

captured (e.g. VTAs) and therefore considered that

this control should continue to be applied via section

77A of the Act during the approvals process rather

than applying this control across the board.

The EPA considers it is appropriate to include this

control in the HPC Notice rather than adding it under

section 77A given its widespread application to

pesticides. However, it is noted that we still retain the

ability to delete or vary this control on a case by case

basis if it is appropriate to do so, for example, for

aquatic herbicides.

As noted above, a definition of “pesticide” has now

been included in the notice that clarifies exactly what

use patterns and substance types are covered under

this term. An additional sub-clause has been added

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to this particular control to specifically exempt it from

applying to VTAs and fumigants

Should this control exclude consumer products?

A submitter considered this control should specifically

exclude class 9.1 pesticides that are consumer

products.

The EPA notes the submitter’s concerns and points

out that certain home-use products such as fly

sprays, will not be captured by this control. However,

some home-use garden products may be captured if

they are used in a manner that falls within the

definition of “pesticide” now included in the notice.

Control to be provided on label

The proposal to require the pesticide label to include

a statement “do not apply into or onto water” where

relevant was well supported by submitters, with no-

one opposing this proposal.

The EPA propose to include a control in the Labelling

Notice to this effect (refer to Part 4 of this document).


112. Key changes to the original proposal include:

amending the clause to delete the words “or over”

amending the clause to clarify that it covers plant growth regulators

inclusion of a proposed definition of “pesticide” in the notice to clarify what substances are covered

and what substances are excluded. As the definition of “pesticide” includes VTAs and fumigants,

an additional clause was added to this particular control to exempt these two groups of substances

from being covered. Please refer to section 3.5.1 (paragraph 52) for the proposed definition of

“pesticide”. If you would like to comment on this definition, please do so under Question 10 in that

section.

113. Refer to clause 39 of the notice exposure draft for the specific wording of the revised clause, (attached

as Appendix 1).

Question 24 Range of substances covered

Do you have any concerns with the range of substances captured by this provision, i.e. that plant

growth regulators are included, but VTAs and fumigants are excluded?

[VTAs are excluded on the basis that it would effectively prohibit all aerial applications of these

substances in rural environments, especially remote locations, given it would be essentially

impossible to avoid every single water body with absolute certainty.

The control is considered not relevant to fumigants which are gaseous in form and typically used in

space or soil fumigations].

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3.5.10 Controls to manage risks from storage and use of ecotoxic substances

in workplaces

Background

114. The controls on hazardous substances that manage risks to workers will be transferred out of HSNO

and into the new HSW regime. However, controls to manage risks to the environment from the use of

ecotoxic substances will remain in the HSNO regime even when the use occurs in a workplace.

115. Consequently, there is a need for the HSNO regime to include a suite of controls to manage risks from

ecotoxic substances that are used or stored in workplaces. The HPC Notice will be the repository for

these controls.

116. The October 2016 consultation document did not provide proposed wording for these controls but

signalled the intent that the HPC Notice would include these requirements by cross reference to

relevant provisions in the HSW HS Regulations. The range of controls to be covered includes:

application of the current threshold quantities for ecotoxic substance for secondary containment

application of the current threshold quantities for ecotoxic substance for emergency response

plans

application of the current threshold quantities for ecotoxic substance for signage

application of the relevant controls on stationary tanks that hold substances that trigger only class

9.1 classifications and no other hazards


117. The majority of submitters supported the proposal that the HPC Notice include controls to manage

risks from ecotoxic substances in workplaces. However, there were a few concerns expressed by

HPC proposal 10

It is proposed to carry over existing controls relating to the management of ecotoxic substances in

the workplace into the HPC Notice.

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some submitters, notably on the need to maintain consistency with the HSW regime, and issues

around monitoring and enforcement.


Two submitters were concerned that following the

split of controls between HSNO and HSW,

businesses holding substances with multiple hazard

classifications, including ecotoxicity would find

compliance more difficult as they would need to

comply with multiple pieces of legislation, i.e. the

HSNO Act and the HSW Act.

They emphasised the need for consistency between

the controls set on class 9 substances in the HPC

Notice, and the controls set on the other hazard

classes in the HSW HS Regulations.

The need for clear and concise guidance

documentation was also raised.

The EPA agree with the need for consistency

between the HPC Notice and the HSW HS

Regulations, and will try to maintain this as much as

possible.

Similarly we agree that good clear guidance material

will be critical to aiding people’s understanding of the

changes, and their (new) compliance requirements.

One submitter queried how the test certification for a

process vessel (currently required > 1000L) and tank

(> 5000L) will work if the EPA has no test certifiers.

The EPA can use (new) section 82(a) of the HSNO

Act to directly engage a WorkSafe compliance

certifier to issue a certificate under HSNO. The

certifier will be working as an independent contractor

and will certify against criteria specified in the HPC

Notice.

One submitter noted that no requirements had been

proposed for tank wagons and transportable

containers holding ecotoxic substances (equivalent

requirements for other hazard classes will be

included in the HSW HS Regulations).

Refer to the discussion in Part 3 of this document.

Notice proposal

118. The HPC Notice sets requirements for the following matters relating to the storage of class 9

substances in workplaces. These requirements have been drafted to directly cross-refer to relevant

provisions in the HSW HS Regulations.

secondary containment (refer clause 30 of the notice)

emergency response plans (refer clause 31 of the notice)

signage (refer clause 32 of the notice)

stationary container systems that hold substances with class 9.1 classifications. Note this is a slight

amendment over what was indicated in the October 2016 consultation document as we now

propose that this provision is not limited to substances with class 9.1 hazard only. It will also cover

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substances that have other hazard classifications in addition to the 9.1 hazard. However note that

this will not duplicate or conflict with any requirements under HSW (refer clause 28 of the notice)

separation of tanks containing class 9 hazardous substances (refer clause 29 of the notice).

119. In addition to these controls, we also propose that the HPC Notice place duties on PCBUs in relation to

labelling and provision of safety data sheets for class 9 substances. These controls are necessary

because the HSW regime does not have a mandate to protect the environment, and therefore the HSW

HS Regulations do not place any duties on PCBUs in relation to class 9 substances. The duties

specified in the HPC Notice will be most relevant if a substance does not belong to any hazard class

other than class 9, and would therefore not be covered by the HSW HS Regulations at all.

120. Specifically, the HPC Notice will include a provision that requires the PCBU to ensure that safety data

sheets for class 9 substances are available to workers (refer clause 54 of the notice). Note that the

HSW HS regulations provide an equivalent duty on PCBUs to ensure that safety data sheets for

substances of all other classifications are available to workers.

121. The HPC notice will also include a provision that requires the PCBU to ensure that class 9 substances

are subject the same requirements regarding appropriate labelling that other hazardous substance are

in a workplace (refer clause 27 of the notice).


122. These controls have been included to “plug” a regulatory gap that would have otherwise arisen as a

result of the split of controls between HSNO and the HSW legislation. The specific reason for this “gap”

is that the new HSW HS Regulations will not include controls to manage risks to the environment, even

if those risks arise from workplace activities. Therefore, in order to ensure continued management of

risks around class 9 substances, the controls discussed in this section need to apply immediately to all

relevant existing approvals on commencement of the HPC Notice. The mechanism for achieving this is

via a transitional regulation, which will be subject to a separate consultation process.




Refer to clauses 25 – 32 and clause 54 of the notice exposure draft, attached as Appendix 1.

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3.6 Part 2 – Controls relating to hazardous substances in non-workplaces

3.6.1 Restriction on supply and use of certain highly hazardous substances to

non-workplaces

Background

123. There are currently two types of controls in the HSNO regime that prevent the general public getting

access to highly hazardous substances: tracking controls and approved handler controls. The intent of

both these controls is to ensure that highly hazardous substances are only able to be accessed by an

appropriately experienced and trained person.

124. Both the tracking and approved handler controls are to be transferred out of HSNO and into the HSW

HS Regulations, which are relevant to workplaces only. It is therefore necessary to include equivalent

controls in the HPC Notice to ensure continued protection of people in non-workplaces.

125. The October 2016 consultation document proposed that the HPC Notice include controls to ensure that

the most highly hazardous substances were not able to be accessed by people outside of a workplace,

such as members of the public.

126. The consultation document did not provide proposed wording for these controls, but rather signalled

the intent that the HPC Notice would include the following requirements.

Place a duty on suppliers to only supply certain highly hazardous substances to workplaces. A

table listing those hazard classifications was included in the consultation document.

Where the substance is supplied to a workplace, require the person supplying the substance to get

written confirmation from the PCBU with management or control of that workplace that they are

prepared to accept responsibility for the substance.

Place a duty on people to not use certain highly hazardous substances outside of a workplace.

HPC proposal 11

Include controls in the HPC Notice that:

place a duty on suppliers to only supply certain highly hazardous substances to

workplaces; and

where the substance is supplied to a workplace, require the person supplying the

substance to get written confirmation from the PCBU with management or control of that

workplace that they are prepared to accept responsibility for the substance. The person

supplying the substance is required to keep that written confirmation for 12 months, and

the record will need to contain certain information; and

place a duty on people to not use certain highly hazardous substances outside of a

workplace.

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127. The consultation document proposed a list of hazard classifications that would not be permitted for

supply to, or use in, a non-workplace (Table 3).

128. It was also proposed that any organophosphate or carbamate pesticide should be similarly restricted.

Table 3: List of hazard classifications restricted to workplace use only

Class 1 (explosives) (with exceptions as listed below)

Class 3.1A (flammable liquids) (excluding petrol)

Class 3.2A (liquid desensitised explosives)

Class 4.1.2A and 4.1.2B (self-reactive substances and mixtures)

Class 4.1.3A (solid desensitised explosives)

Class 4.2A (pyrophoric substances)

Class 4.3A (substances that in contact with water, emit flammable gases)

Class 5.1.1A (oxidising substances)

Class 5.2A and 5.2B (organic peroxides)

Class 6.1A, 6.1B and 6.1C (acutely toxic)

Class 6.7A (known human carcinogen)

Class 8.2A (highly corrosive to skin)

Exceptions to class 1 substance

safety ammunition, including pre-primed cartridges and primers, of class 1.4S

airbag initiators and seatbelt pretensioners of class 1.4G or 1.4S

cable cutters of class 1.4S (UN 0070)

power device cartridges of class 1.4S (UN 0323)

signal tubes or shock tubes of class 1.4S (UN 0349)

cassette degradation devices of class 1.4S (UN 0432)

fireworks in hazard classifications 13G, 1.4G, and 1.4S that are controlled under the

Hazardous Substances (Fireworks) Regulations 2001

emergency flares and signalling devices in hazard classifications 1.3G, 1.4G, and 1.4S

model rocket motors of hazard classifications 1.4G and 1.4S

propellants of hazard classifications 1.3C (UN 0161 and 0499)

gunpowder of hazard classification 1.1D (UN 0027)

igniting fuses of hazard classification 1.4G (UN 17)

igniters of hazard classification 1.4S (UN 0454)

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129. There were some concerns with this proposal, primarily relating to the specific classifications /

substances included, or not included on the list. Some submitters considered that certain classifications

/ substances should be removed from the proposed list as they could potentially be used in a non-

workplace. Conversely, there was a view that other classifications / substances were too hazardous to

be used outside of a workplace and should be added to the list.

130. Our responses to these concerns are provided below.


General comments

Several submitters were concerned that the list of

classifications was too restrictive, and we should

remove certain classifications from the list, e.g. 6.1C,

3.1A as some substances with these classifications

were likely to be used in non-workplaces.

Other submitters suggested we should consider

permitting the use of certain highly hazardous

substances in non-workplaces in specific

circumstances, or in small quantities.

The EPA acknowledges that there may be cases

where specific substances with these classifications

should be permitted to be sold / used in non-

workplaces. An example of this is cement and

cement products that are classified as 6.7A.

In such cases, we will delete this control from

applying to the relevant substance as provided under

section 77.

Organophosphate or carbamate pesticides

Some submitters were concerned with the blanket

prohibition on the supply and use of

organophosphate or carbamate pesticides, especially

as there was no concentration threshold provided. It

was pointed out that there are some home-use

products currently available that contain very low

levels of these pesticides and these should continue

to be made available for use outside of workplaces.

The EPA acknowledges these concerns and agree

that rather than applying a blanket prohibition on

these substances, we would set a supply/use

restriction control on specific organophosphate or

carbamate pesticides in the relevant substance

approvals (under section 77). This is where this

control currently sits.

Petrol / aviation / racing gasoline of class 3.1A

A number of submitters pointed out the need to

exempt other gasoline from this restriction, not just

petrol.

The EPA agree, and have exempted 3.1A aviation

and racing gasoline as well as petrol from this

restricted list.

Explosives

A number of submitters considered that ammunition

products (propellant powder, gunpowder, primers or

safety ammunition) should not be restricted to

workplaces. They further considered that primers and

safety ammunition should not have any restriction on

quantities or volume stored in non-workplaces.

The proposals permit these types of products to be

stored and used in non-workplaces (ammunition,

gunpowder etc. is listed in the exceptions at the end

of the table).

However, the HPC Notice will include controls on the

storage of these, and other, hazardous substances in

non-workplaces. In particular if they are held above

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certain quantities, people will, in the main, need to

comply with the storage and use requirements

required by the relevant HSW HS Regulations (refer

discussion in section 5.52 below). An exception to

this is that we will not require people holding greater

than 15 kg of gunpowder to obtain a controlled

substance licence – we consider that the firearms

licence will be adequate.

Additional classifications added to this list

Several submitters considered that there were other

hazard classifications that should not be available to

the general public. These include some class 1

explosives, and substances of class 3.2, 4.1.2, 4.1.3,

4.2 and 4.3.

The EPA acknowledges these concerns and

proposes to add a number of additional hazard

classifications to the list of substances restricted to

workplace use only. The specific classifications that

were added are of a nature, type and hazard that the

EPA considers should not be used in non-workplaces

(refer to bulleted list in paragraph 134 below)


131. Taking into account submitter comments, and upon further consideration of the issues, we have made

some changes to the list of substances / classifications restricted to workplace use only. These

changes are discussed below.

Removal of organophosphate or carbamate pesticides from the supply restriction control in the

HPC Notice. As noted above, we have decided to not include a control in the HPC Notice that

places a blanket prohibition on the supply and use of organophosphate or carbamate pesticides to

non-workplaces. This decision was made on the basis that these are wide chemical classes,

particularly carbamates, and that this would capture a large number of products without good

reason. For example, there are some home-use products that contain these substances in very low

levels such that they are considered appropriate for use in non-workplaces. Instead, a control

prohibiting supply or use in non-workplaces will be set on specific organophosphate or carbamate

pesticides in the relevant substance approvals.

We have exempted aviation and racing gasoline as well as petrol from being restricted to

workplaces only, as these types of substances are currently available in non-workplaces.

We propose to add the following classifications to the list for restriction to workplace use only. The

reason for this is that substances with these classifications are of a nature, type and hazard that

they should not be used in non-workplaces.

o airbag initiators and seatbelt pretensioners of class 1.4G or 1.4S

o cable cutters of class 1.4S (UN 0070)

o power device cartridges of class 1.4S (UN 0323)

o signal tubes or shock tubes of class 1.4S (UN 0349)

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o cassette degradation devices of class 1.4S (UN 0432)

o 3.2B / C (liquid desensitised explosives)

o 4.1.2 C / D / E / F (self-reactive substances)

o 4.1.3B / C (solid desensitised explosives)

o 4.2B (spontaneously combustible)

o 4.3B / C (dangerous when wet)

132. Refer to clause 12 of the notice exposure draft for the revised table and wording of this clause



133. This control has been included to “plug” a regulatory gap that would have otherwise arisen as a result

of the split of controls between HSNO and the HSW legislation. In order to ensure continued

management of risks in non-workplaces, this new control needs to apply immediately to all relevant

existing approvals on commencement of the HPC Notice. The mechanism for achieving this is via a

transitional regulation, which will be subject to a separate consultation process.

Question 27 Range of substances covered

Do you agree with the changes we have made to the classifications proposed to be restricted to

workplaces only? Please provide your reasons.






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3.6.2 Controls on hazardous substances used or stored in non-workplaces

Background

134. The current HSNO regulations contain a range of controls to manage risks from the use and storage of

hazardous substances. In many cases, a hierarchy of controls exists that is based on the quantity of

hazardous substances present. For example, when certain substances are stored above a certain

threshold quantity, the location where the substances are held needs to have a location test certificate.

135. The bulk of these controls are to be transferred out of the HSNO regime to the HSW HS Regulations,

which are relevant to workplaces only. Included in this transfer is the test certification regime.

136. Responsibility to manage risks relating to storage and use of hazardous substances in non-workplaces

will remain in HSNO. Note that a non-workplace is any place other than a workplace to which the HSW

Act applies. Controls on non-workplaces will therefore ensure continued protection of members of the

public from exposure to hazardous substances, and will also ensure there are no gaps created

between the HSW and HSNO regimes.

137. The October 2016 consultation document contained discussion on what level and nature of controls

needed to be included in the HPC Notice to ensure the safe management of hazardous substances in

non-workplaces. The consultation document did not provide proposed wording for these controls, but

rather signalled the intent that the HPC Notice would include the following requirements:

include generic controls on the storage and use of hazardous substances in non- workplaces, for

example, store flammables away from ignition sources, store incompatible substances separately,

keep explosives locked up

propose threshold quantities for certain high hazard substances in non-workplaces, where storage

above these levels would incur additional compliance requirements consistent with those required

in workplaces under the new HSW HS Regulations.

138. The consultation document proposed a list of hazard classifications / substances and associated

threshold quantities (refer Table 4 below). Where substances were held above these threshold

quantities in a non-workplace, people at that place will need to comply with the relevant controls on the

storage and use of that substance as prescribed in the HSW HS Regulations (with a few exceptions as

outlined in the HPC Notice).

HPC proposal 12

That the HPC Notice includes generic controls on the storage of hazardous substances in non-

workplaces, for example, keep explosives locked up, store flammables away from ignition sources,

store incompatible substances separately; and place restrictions on the quantities of certain

hazardous substances that can be used or stored in non-workplaces. If these threshold quantities

are exceeded, the Notice will require the homeowner (or equivalent) to comply with the relevant

HSW HS Regulations as if they were a PCBU, and the place is a workplace.

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139. Table 3 above contains a list of those classifications prohibited for supply or use in non-workplaces. If a

classification is not listed in Table 3 or Table 4, then no additional controls are imposed, regardless of

quantity.

Table 4: Threshold quantities of hazardous substances held in non-workplaces that trigger additional

compliance requirements

Hazard Classification Maximum Quantity

Certain Class 1 substances

safety ammunition, including pre-primed cartridges and primers, of class

1.4S

To be determined

airbag initiators and seatbelt pretensioners of class 1.4G or 1.4S 25 kg

cable cutters of class 1.4S (UN 0070) 25 kg

power device cartridges of class 1.4S (UN 0323) 25 kg

signal tubes or shock tubes of class 1.4S (UN 0349) 25 kg

cassette degradation devices of class 1.4S (UN 0432) 25 kg

fireworks in hazard classifications 13G, 1.4G & 1.4S that are controlled

under the Hazardous Substances (Fireworks) Regulations 2001 To be determined

emergency flares and signalling devices in hazard classifications 1.3G,

1.4G & 1.4S 100 kg

model rocket motors of hazard classifications 1.4G and 1.4S 100 kg

propellants of hazard classifications 1.3C (UN 0161 and 0499) 15 kg

gunpowder of hazard classification 1.1D (UN 0027) 15 kg

igniting fuses of hazard classification 1.4G (UN 0317) 25 kg

igniters of hazard classification 1.4S (UN 0454) 25 kg

2.1.1A (refer Table 5 for LPG) 100 kg (or 100 m3 where not a

permanent gas)

2.1.2A To be determined

Petrol 50 L

3.1B 50 L

3.1C 250 L (excluding in oil burning

installation)

3.2B and 3.2C 1 kg or L

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Hazard Classification Maximum Quantity

4.1.1A 1 kg

4.1.2C and D Nil

4.1.2E and F Nil

4.1.3B and 4.1.3C 1 kg

4.2B and 4.2C 25 kg

4.3B and 4.3C 25 kg

5.1.1B 50 kg or L

5.1.1C 100 kg or L

5.1.2A 50 kg or m3

5.2C, 5.2D, (5.2E, or 5.2F) 10 kg or L

Table 5: Maximum Quantities of LPG permitted to be held in non-workplaces

Location Maximum quantity of LPG and size of cylinders

Outdoors Refer section on storage of LPG in quantities greater

100 kg

Indoors:

Residential properties comprising:

a detached house or single storey attached dwelling

multi-storey attached dwellings, up to and including 3

storeys

multi-storey attached dwellings of over 3 storeys.

20 kg per dwelling, maximum cylinder size 10 kg.



Areas of regular habitation (excluding dwellings,

factories or warehouses) within buildings with a roof

and three or more walls that are not attached to

residential or other occupancies; e.g. hotels, bars,

restaurants, public buildings, places of worship, shops,

offices and laboratories.

10 kg per 10 square metres of the indoor floor area, up

to a maximum total quantity of 100 kg.

Maximum cylinder size 10 kg.

Areas of regular habitation (excluding dwellings,

factories or warehouses) within buildings with a roof

and three or more walls that are attached to residential

or other occupancies; e.g. hotels, bars, restaurants,

20 kg per premises.

Maximum cylinder size 10 kg.

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Location Maximum quantity of LPG and size of cylinders

public buildings, places of worship, shops, offices and

laboratories.


140. The key concerns with this proposal were that:

for non-workplaces, the label should be the primary means of compliance for hazardous substance

controls

certain classifications / substances should be removed from Table 4 and restricted to workplace

use only as they are too hazardous to be used in non-workplaces

some classifications / substances should be added to Table 4 and subject to HSW controls when

present in a non-workplace above specified threshold quantities.

141. Our responses to these concerns are provided below.


Use of label for compliance

Some submitters pointed out that not many other overseas

regulatory regimes have controls on hazardous substances

in non-workplaces in regulation. The label is the primary

means for relaying compliance information to consumers.

The EPA has considered this feedback and

agrees. We now propose to include a control in

the HPC Notice that requires people to comply

with the relevant precautionary statements on the

product label.

Remove certain classifications from Table 4 and limit to

workplace use only

Some submitters considered that several of the

classifications listed in Table 4 should not be permitted to be

present in homes on the basis they were either too

hazardous, or extremely unlikely to be used in domestic

situations.


agrees. A number of classifications were removed

from Table 4 and transferred to the list of

classifications that are restricted to workplace use

only.

Add certain classifications to Table 4 and impose

threshold limits for additional compliance requirements

Some submitters considered that we should add a number of

other classifications to Table 4 and set appropriate threshold

quantities above which additional controls should be required

if they were present in non-workplaces.


agrees. We have amended Table 4 to add a

number of additional hazard classifications which

will trigger additional requirements under the HSW

HS Regulations when present above certain

quantities.

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142. Taking into account submitter comments, and upon further consideration of the issues, we propose to

make the following changes to our earlier proposals.

143. Rather than including generic controls on the storage and use of hazardous substances in non-

workplaces directly in the HPC Notice, the notice will include a control that requires people in non-

workplaces to comply with the relevant label controls for the storage and use of hazardous substances.

These will be the relevant precautionary provisions for safe storage and use of substances as

prescribed in the proposed Hazardous Substances (Labelling) Notice.

144. Remove the following substances / classifications from Table 4 and transfer them to the list of

substance / classifications that are restricted workplace use only. The reason for this change is that

substances with these classifications are of a nature, type and hazard such that they should not be

available in non-workplaces. In addition, in some cases (e.g. 3.2B, 3.2C, 4.1.2A, 4.1.2E, 4.1.2F) there

are currently no approved substances with these classifications in New Zealand.

airbag initiators and seatbelt pretensioners of class 1.4G or 1.4S

cable cutters of class 1.4S (UN 0070)

power device cartridges of class 1.4S (UN 0323)

signal tubes or shock tubes of class 1.4S (UN 0349)

cassette degradation devices of class 1.4S (UN 0432)

3.2B / C (liquid desensitised explosives)

4.1.2 C / D / E / F (self-reactive substances)

4.1.3B / C (solid desensitised explosives)

4.2B (spontaneously combustible)

4.3B / C (dangerous when wet).

145. Add the classifications listed in Table 6 to the list in Table 4 so that they will be subject to HSW controls

if present in a non-workplace above specified threshold quantities. The reason for adding these

classifications is provided in the table below. Note that class 9 substances stored in large quantities in

non-workplaces will be covered under clause 33 of the notice.

Table 6: List of additional classification that will trigger increased compliance requirements if present

above certain threshold quantities

Classification Proposed threshold quantity above which compliance with HSW is required

3.1D 10,000 L (threshold quantity for secondary containment)

Note that the threshold quantity for diesel is 1,000 L based on its 9.1B classification

4.1.1B 100 kg (threshold quantity for establishing a hazardous substance location)

6.1D, 6.5A, 6.5B 1,000 kg or L (threshold quantity for secondary containment)

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Classification Proposed threshold quantity above which compliance with HSW is required

6.6A, 6.7B, 6.8A, 6.9A 10,000 kg or L (threshold quantity for secondary containment)

8.2B 1,000 kg or L (threshold quantity for secondary containment)

8.2C, 8.3A 10,000 kg or L (threshold quantity for secondary containment)

Class 9 Refer to clause 33 of the notice exposure draft

146. As noted above, the intention is to ensure that the risks of the substance are managed to the same

level as in a workplace. In terms of the legal mechanism for achieving this, we have proposed two

options and seek your feedback on which of these options you consider is preferable (refer Question

36 below).

Option 1 is a performance-based requirement, which requires substances to be managed to a level

of safety equivalent to that which would be achieved by a PCBU managing the substance in a

workplace in accordance with the HSW regime (refer clause 16 of the exposure draft).

Option 2 is a more prescriptive requirement, which applies the HSW regulations, with certain

prescribed modifications to ensure that they are fit for purpose for regulation under the HSNO Act

(refer clause 17 of the exposure draft).

147. However, neither option will require people holding greater than15 kg of gunpowder in a non-workplace

to obtain a controlled substance licence - a firearms licence will be considered acceptable.

148. Both options also include a requirement to obtain a certificate (where appropriate) to certify that the

relevant standard has been met. This includes certification of both locations and competency of people

in charge of substances.

149. Refer to clauses 13 – 17 of the notice exposure draft for the proposed wording of the controls

discussed in this section. The revised table is provided under clause 17 (refer Appendix 1).




management of risks around the use of hazardous substances in non-workplaces, this new control

needs to apply immediately to all relevant existing approvals on commencement of the HPC Notice.

The mechanism for achieving this is via a transitional regulation, which will be subject to a separate

consultation process.

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Question 29 Requirement to comply with label

Do you agree that the HPC Notice should include a control that requires people in non-workplaces

to comply with the relevant label controls for the storage and use of hazardous substances as

prescribed in the Labelling Notice, rather than including generic controls on the storage and use of

hazardous substances in non- workplaces directly in the HPC notice? Please provide your

reasons.

Refer to clause 14 of the exposure draft, attached as Appendix 1

Question 30 List of substances to remove from proposed list

Do you agree with the list of substances / classifications that we have removed from Table 4 and

now propose to restrict supply to workplaces only? Refer to list provided in paragraph 147 above.


Refer to revised list in Table 3 in clause 17 of the exposure draft, attached as Appendix 1

Question 31 List of substances to add to proposed list

Do you agree with the list of substances / classifications that we have added to Table 4 so that

they will be subject to HSW controls if present in a non-workplace above specified threshold

quantities? Refer to list provided in paragraph 148 above. Please provide your reasons.

Refer to revised list in Table 3 in clause 17 of the exposure draft, attached as Appendix 1

Question 32 Wording of clauses

Where the threshold quantities in non-workplaces have been exceeded, we have provided two

different drafting options for ensuring the hazardous substances are managed to the same level as

in a workplace

If you have a preference of one over the other, please provide this feedback to us, along with your

reasons.

Refer to clauses 16 and 17 of the exposure draft, attached as Appendix 1.

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3.6.3 Controls on stationary container systems for domestic oil burning

installations

Background

151. The current HSNO regime sets a number of controls on stationary container systems (SCS). These

controls are found in Schedule 8 of Gazette Notice 35.3 The majority of these controls are relevant to

workplaces only and will be transferred into the HSW regime.

152. However, some of these provisions are relevant to non-workplaces, most notably clause 64 which

prescribes requirements for domestic oil burning installations. There are a number of these types of

installations around the country, used primarily for heating. Other parts are also relevant to non-

workplaces, for example SCS that provide fuel to an internal combustion engine (e.g. generators).

153. In the October 2016 consultation document the EPA included discussion on proposed controls for

domestic oil burning installations for inclusion in the HPC Notice. It was proposed to retain the current

hierarchy of controls and provide separate provisions for installations with a capacity below 2,500 L, or

greater than 2,500 L.

154. The consultation document also asked people to provide feedback on whether they considered the

HPC Notice should include controls to manage SCS providing fuel to an internal combustion engine.

155. It was proposed that the HPC Notice would cross-refer, where appropriate, to various requirements in

the HSW HS regulations rather than replicating these requirements directly in the Notice.



Use of certain hazardous substances in domestic oil-burning installations where the tank is greater than

60 litres and less than 2,500 litres or less

(1) This clause applies to every stationary container system that:

(a) is in a building, other than a workplace where there is a PCBU with management and control of the

stationary container system; and

(b) is used to contain a hazardous substance; and

(c) is used to supply an oil-burning installation; and

(d) has a capacity of greater or equal to 60L, and

3 Gazette Notice 35, Hazardous Substances (Dangerous Goods and Scheduled Toxic Substances) Transfer Notice

2004. Refer to the New Zealand Gazette website https://gazette.govt.nz/notice/id/2004-au2001

HPC proposal 13

That the HPC Notice includes controls for domestic oil burning installations.

https://gazette.govt.nz/notice/id/2004-au2001

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(e) the stationary tank used to store the substance that is part of the stationary container system does

not exceed 2,500L in capacity

(2) A person must not fill or partially fill the tank with a hazardous substance that has a flashpoint less than 50

ºC.

(3) A person who installs the stationary container system must ensure that:

(a) the stationary tank used to store the substance that is part of the stationary container system—

(i) is located outdoors; and

(ii) has a secondary containment system, if the capacity of the stationary tank is greater than 1,200

litres; and

(iii) is of a design that is certified under regulation 17.92(1)(a) of the HSW HS Regulations; and

(iv) is constructed by a fabricator that is certified under regulation 17.92(1)(b) of the HSW HS

Regulations, in respect of that design; and

(v) is marked in accordance with regulation 17.75(1) of the HSW HS Regulations; and

(b) the burner is—

(i) approved in accordance with Subpart 12 (Burners) of the HSW HS Regulations; and

(ii) fed by gravity; and

(c) any pipework that forms part of the stationary container system complies with regulation 17.58 of the

HSW HS Regulations; and

(d) the installation is equipped with an emergency shutdown valve that:

(i) stops the supply of fuel from the tank to the burner; and

(ii) is located outside the building and as close as practicable to the tank.

157. For installations where the tank is greater than 2,500 litres, it was proposed that they will need to

comply with all the technical elements of Part 17 of the HSW HS regulations, i.e. they will be treated as

is they were a workplace. For such installations, the EPA requested feedback on whether the HPC

Notice include a requirement that the installation be test certified.


158. Due to the specialist nature of this issue, only six submitters provided comments on this proposal.

Amongst those that submitted, there was general consensus that the existing controls on domestic oil

burning installations (as prescribed in Gazette Notice 35) should be maintained in order to ensure risks

around such installations continue to be managed. Submitters also considered that the HPC Notice

should include controls to manage stationary container systems used to provide fuel to internal

combustion engines, for example large electricity generators.

159. Overall, there was general agreement that consistency should be maintained with the workplace

requirements on stationary container systems prescribed in the HSW HS Regulations.

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General comments

One submitter agreed with the proposed controls but

considered they should be clearly explained rather than

just cross referenced to the HSW HS Regulations.

We acknowledge that cross-referencing to the HSW HS

Regulations is not as user-friendly as directly

incorporating controls in the HPC Notice. However,

cross-referencing to HSW ensures that the control in

the HPC notice will be consistent with the HSW

regulations in the event that those regulations are

amended in the future.

We note that the provision of good clear guidance

material will be critical to aiding people’s understanding

of the changes, and their (new) compliance

requirements.

Controls on SCS less than 60 L that supply a burner

The general consensus was that the controls for these

types of installations in non-workplaces should be

consistent with workplace requirements.

We agree that consistency with HSW HS Regulations

should be maintained. These regulations do not have

controls on SCS less than 60 L that supply a burner.

Therefore we propose to adopt the same approach.

Controls on internal combustion engines

The general consensus was the notice should include

controls on SCS that provide fuel to an internal

combustion engine, and that these controls should be

consistent with the workplace requirements for these

types of installations.

We agree that consistency with HSW HS Regulations

should be maintained. The notice will cross-refer to the

relevant part (Part 13) of the HSW regulations for these

types of installations.

One-off construction

The general consensus was that the notice should not

allow anyone other than a certified fabricator to construct

tanks (as consistent with the HSW HS Regulations).

However, one submitter considered that provision could

be made for people other than certified fabricators to

construct tanks, provided the tanks were constructed to a

certain standard, AS16924.

We agree that consistency with HSW HS

Regulations should be maintained. These

regulations do not permit one-off construction by

someone other than an approved fabricator.

Therefore we propose to adopt the same approach.

4 Standard AS1692 – 2006: Steel tanks for flammable and combustible liquids.

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Test certification of installations > 2,500 L

The general consensus was that the installation should

have an initial stationary container test certificate, and

should also be subject to periodic compliance checks by

an independent certifier.

In terms of the recertification period, one submitter

proposed a period of five or ten years (note that the

workplace recertification period varies).

However, another submitter considered the responsibility

to maintain an acceptable safety level should lie with the

owner.

We agree that installations in non-workplaces should be

subject to the same requirement as those in

workplaces, including the requirement to obtain a

stationary container test certificate.

We are proposing a recertification period of five years.


160. Minor changes were made to the wording of the clause for domestic oil burning installations of 2,500 L

or less (refer to clause 21 of the notice exposure draft).

161. A clause for domestic oil burning installations greater than 2,500 L is proposed. For these installations,

we propose that the installation must be certified by a person who is authorised under HSW HS

regulations to certify the same matters in a workplace. We are proposing that the certificate would need

to be obtained by the installer. A recertification period of five years is also proposed (refer to clause 22

of the notice exposure draft).

162. A clause for SCS providing fuel to an internal combustion engine is proposed. We are proposing that

these installations must comply with the equivalent workplace requirements included in the HSW HS

Regulations. This includes requiring installations above a certain size to be certified by a person who is

authorised under HSW HS regulations to certify the same matters in a workplace (refer to clause 23 of

the notice exposure draft).




management of risks around these types of installations in non-workplaces, this new control needs to

apply immediately on commencement of the HPC Notice. The mechanism for achieving this is via a

transitional regulation, which will be subject to a separate consultation process.

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Question 33 Domestic oil burning installations under 2,500 L

Do you agree with the proposed controls on domestic oil burning installations with a capacity of

2,500L or less? Please provide your reasons.


Question 34 Domestic oil burning installations over 2,500 L

Do you agree with the proposed controls on domestic oil burning installations with a capacity over

2,500L, including the requirement that such installations be certified, with the duty on the installer

to obtain the certification?

Do you agree with a five year recertification period?



Question 35 Stationary container systems used to supply fuel to an internal

combustion engine

Do you agree with the proposed controls on stationary container systems that are used to supply

fuel to an internal combustion engine, including the requirement that installations over a certain

size be certified, with the duty on the installer to obtain the certification?

Do you agree with a five year recertification period?



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3.6.4 Compliance checking or certification of non-workplaces storing greater

than 100kg of LPG

Background

164. As discussed previously, the test certification regime will move from the HSNO regime to the HSW

regime. In addition, the HSW HS Regulations have made a change to existing terminology, replacing

the term “test certification with “compliance certification”, “test certificate” with “compliance certificate”,

and “test certifier” with “compliance certifier”.

165. Moving the test certification regime from the HSNO regime creates a problem for the certification of

non-workplaces holding more than 100 kg of LPG as the HSW legislation only applies to workplaces.

166. There are currently over 800 residential sites with a location test certificate for LPG with the majority of

these having between 100 kg to 300 kg LPG on site. A smaller number (approximately 40) hold LPG in

quantities greater than 300 kg.


167. The October 2016 consultation document noted that the EPA was considering a number of different

options to manage this issue going forward. It stated that the desired outcome was to ensure that non-

workplaces holding greater than 100 kg of LPG continue to be subject to the same level of controls as

they are currently. It sought feedback as to whether non-workplaces holding more than 100 kg of LPG

should be captured by the HSW HS regulations, and whether the responsibility for obtaining the

certificate should be placed on the gas supplier, the homeowner, or either. It indicated that using the

new section 82 in the HSNO Act to require a location certificate for LPG under HSNO was a fall-back

position only on the basis that when LPG is supplied, the location to which it is supplied is a workplace.

HPC proposal 14

To ensure that non-workplaces holding greater than 100 kg of LPG continue to be subject to the

same level of controls as currently applies.

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A few submitters considered that the current

threshold quantity of 100 kg to require a location test

certificate is too low.

The October 2016 consultation document raised the

possibility of raising the threshold quantity for

requiring a location test certificate, but noted this

option would likely require a reassessment of LPG.

Some change is necessary to “plug” what would

otherwise be a regulatory gap. However, raising the

threshold quantity would require a comprehensive

risk assessment against all relevant regulatory

controls including the approach in the workplace. This

is more suited to the reassessment process.

The same submitters that had concerns that the

threshold quantity was too low also considered that a

requirement for a location test certificate will impose

unnecessary costs. In addition to support for raising

the threshold quantity, two submitters supported

certification by a gas-fitter.

We have considered whether the requirement for a

location test certificate imposes unnecessary costs.

We consider that for amounts between 100 kg and

300 kg, the process in place for LPG suppliers to

carry out a compliance check and install a

compliance plaque will provide a simpler more cost-

effective approach.

For amounts of 300 kg or more, we consider that a

requirement for a location certificate should remain in

place. We have also considered whether certification

by gas fitters would be adequate but rejected this as

gas fitters do not certify all of the requirements from

the HSNO controls.

There were varying views on who should be

responsible for obtaining the certificate, the

homeowner (or equivalent) or the gas supplier.

We recognise that the homeowner has a better

knowledge of the site and how it is managed on an

ongoing basis. However, this is finely balanced as

LPG suppliers are also in a position to check all

relevant matters when they visit the site to deliver the

gas. We also note the HSW HS regulations include

requirements on gas suppliers to restrict them from

delivering to a site unless it has the correct

certification or a compliance plaque (which the gas

supplier has put in place) so they already carry some

regulatory responsibility. For amounts of LPG

between 100 kg and 300 kg we therefore propose to

place responsibility on LPG suppliers to install a

compliance plaque.

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A few submitters considered that non-workplaces

can, or should, be captured by HSW HS regulations.

One submitter was of the view that a non-workplace

cannot be fully captured by HSW HS regulations.

Non-workplaces are captured by HSW HS

regulations when workers are present and they

temporarily become workplaces. Workplace controls

on LPG suppliers can work in conjunction with, and

complement any controls on LPG suppliers in the

HPC Notice that apply whether or not the location is a

workplace.

One submitter raised the issue of the appropriateness

of the current re-certification period.

For amounts of LPG between 100 kg and 300 kg, re-

certification will be replaced by equivalent provisions

to those in HSW HS which involve compliance

checking by LPG suppliers and installation of a

compliance plaque that must be renewed every 36

months.

For amounts of LPG over 300 kg, we are proposing a

re-certification period of 36 months.


168. Provisions in the HPC notice will supplement a restriction in the HSW HS regulations on LPG suppliers

delivering to sites unless they have a certificate issued under those regulations, a compliance plaque,

or a certificate issued under HSNO.

169. The HPC notice will include the following provisions.

For storage of amounts of LPG over 100 kg but less than 300 kg, LPG suppliers will be required to

carry out a compliance check the first time they supply LPG. This check will confirm that the

location meets the minimum standards set out in the HSW HS Regulations that must be met to

obtain a compliance plaque. If the compliance check is successful and LPG is delivered, the LPG

supplier will also be required to fix in a permanent and prominent location a unique numbered

compliance plaque certifying compliance with the minimum standards, and containing an expiry

date. One difference with the HSW HS provisions that we are proposing is that an initial

compliance certificate will not be required as we consider with this quantity of LPG, the list of

minimum standards to be checked will be adequate to address any risk of harm. The storage of

LPG in amounts over 100 kg but less than 300 kg will be a control made under the HPC notice and

therefore enforceable by territorial authorities.

For sites holding greater than 300 kg LPG, the homeowner or equivalent person will be required to

obtain a certificate from a person who is also authorised as a WorkSafe certifier to issue

certificates for storage of larger amounts of LPG in the workplace. The checks required for the

issue of this certificate will mirror the checks required under the HSW HS regulations. The certifier

will act independently and any fee will be determined by the certifier, rather than being set by the

EPA.

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170. In both instances we will require the EPA to be notified so that we can monitor the effectiveness of the

provisions governing storage of LPG and share information with territorial authorities as necessary for

enforcement.

171. Refer to clauses 18 – 20 of the notice exposure draft for the specific wording of the revised clauses





management of risks, this new control needs to apply immediately on commencement of the HPC

Notice. However, the notice will include a “grandfathering” provision such that sites with a current

location test certificate will be considered compliant until that certificate expires.

173. The legal mechanism for allowing this provision to apply to the current LPG approval immediately upon

commencement of the HPC Notice is via a transitional regulation, which will be subject to a separate

consultation process

Question 36 Controls on non-workplaces holding 100 kg – 300 kg LPG

Do you agree with the proposal that where LPG is held in non-workplaces in quantities over

100 kg but less than 300 kg, the LPG supplier will be required to carry out a compliance check and

issue a compliance plaque?

Do you agree with a 36 month renewal for these?



Question 37 Controls on non-workplaces holding greater than 300 kg LPG

Do you agree with the proposal that where LPG is held in non-workplaces in quantities over

300 kg, the homeowner or equivalent must obtain a certificate from a person who is authorised as

a WorkSafe certifier?

Do you agree with a 36 month renewal for these?



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3.7 Part 3 – Tank wagons and transportable containers used for ecotoxic

substances, and the filling of compressed air cylinders by the public

3.7.1 Regulation of tank wagons and transportable containers containing

class 9 substances

174. The October 2016 consultation document did not indicate whether and how the EPA would regulate

Intermediate Bulk Containers (IBCs), portable tanks and tank wagons containing or carrying class 9

substances. The EPA has subsequently analysed the risk of harm associated with these types of

containers and tanks in relation to ecotoxic substances, and has concluded that these risks are

adequately managed without regulation under the HPC Notice. We however, invite your views on this

conclusion.

175. One point to note is that most class 9 substances will also belong to other classes. To the best of our

knowledge, the incidence of tank wagons being used for substances that are class 9 only will be low or

non-existent, although of course there will be tank wagons that carry substances with class 9 hazards

in combination with other hazards.

176. Clearly it is undesirable if ecotoxic substances escape into the environment through badly constructed

or designed IBCs, portable tanks or tank wagons. However, any IBCs, portable tanks or tank wagons

used in New Zealand will have been designed and constructed to carry a range of hazardous

substances in accordance with UN standards (for transportable containers manufactured overseas) or

design and construction certification for tank wagons. There are no UN standards specifically for

transportable containers for class 9 substances. We therefore consider that the requirements in the

HSW HS Regulations that apply to IBCs, portable tanks and tank wagons carrying hazardous

substances other than class 9, will also meet suitable standards to carry class 9 substances.

177. Additionally, many risks managed by controls on containers and tanks designed for transport relate to

physical hazards, for example, flammability, and these do not apply to class 9 substances. There will

also be other controls on class 9 substances, such as secondary containment, which will mitigate risks

to the environment.

178. We therefore conclude that including provisions in the HPC Notice equivalent to those in the HSW HS

regulations for transportable tanks and tank wagons is unnecessary. This is because the required

design and construction standards to prevent escape into the environment have been met through the

HSW HS regulations.

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International best practice

179. Australia, the EU, Canada, and the United States regulate the design and construction of IBCs,

portable tanks and tank wagons as part of their transport laws and as a consequence are concerned

only with their design and construction standards in relation to the carriage of dangerous goods. The

scope of substances that are considered dangerous goods is defined by the UN model regulations

and, in respect of class 9 substances, only includes substances that are ecotoxic to the aquatic

environment of HSNO classification 9.1A and 9.1B. As noted above, none of these national

requirements, which are based on UN standards, have design or construction requirements specific to

class 9 hazards.

Benefits and costs

180. We have not identified any monetary costs with not including provisions in the HPC Notice that regulate

tank wagons, IBCs and transportable containers. However, there is a risk, albeit very low, that if IBCs,

portable tanks or tank wagons are designed to hold class 9 substances only, there could be a lowering

of standards. We consider that a benefit of the suggested approach is that it will avoid unnecessary

complexity caused by having to provide equivalent requirements for complex provisions in the HSW HS

regulations in relation to class 9 substances. We consider that to the best of our knowledge, including

such provisions in the HPC Notice is not warranted for the reasons given above.

Question 38 Propose that HPC Notice will not include controls on tank wagons

and transportable containers for class 9 substances

Do you agree with the proposal that the HPC should not include controls on tank wagons and

transportable containers used for ecotoxic substances as outlined above? Please provide your

reasons.

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3.7.2 Filling of SCUBA cylinders in non-workplaces

181. Currently the Hazardous Substances (Compressed Gases) Regulations restrict anyone from filling

SCUBA cylinders unless the person is an approved filler or under the supervision of someone who is

an approved filler. This requirement will be carried over in workplaces in the HSW HS regulations.

While HSNO will not have an equivalent of the approved filler regime, the EPA recognises that, on

occasion, some people fill SCUBA diving cylinders themselves outside of a workplace.

182. We propose that the HPC Notice include some basic controls for people in non-workplaces who fill

cylinders, which relate to the condition of the cylinders that may be used, and the quality of the air that

is used. These basic controls will be equivalent to workplace standards. The notice will also require

that the person be appropriately trained.

183. The nature of the controls that we propose to include in the HPC Notice are that a person must not fill a

cylinder unless:

any cylinder that is used has been subject to periodic inspections as referred to in the HSW HS

regulations, and is within its inspection period. The cylinder must show no evidence of damage or

corrosion (draft regulation 15.57 HSW HS regulations)

the air that the cylinder is filled with has met the same standards that are prescribed in the HSW

HS regulations (draft regulation 15.63 HSW HS regulations)

they have a certain level of competency to do so.

184. Refer to clause 24 of the notice exposure draft for the specific wording of this clause (attached as

Appendix 1).


185. The requirements we propose including in the HPC notice are equivalent to the requirements in the

HSW HS regulations. These standards are based on Australian or Australian/New Zealand standards

that reflect international requirements.

Benefits and costs

186. These requirements will mean that those who fill their own dive cylinders will need to be able to identify

whether cylinders have passed periodic inspections and meet other prescribed requirements. They will

also be required to have a means of assessing whether the air used meets standards set out in

Australian and Australian/New Zealand standards. It is noted that the current HSNO requirements

require anyone who fill cylinders (whether in a workplace or non-workplace) to be an approved filler so

requiring competency in this area is just an extension of current requirements. As such, we do not

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consider there to be an increase in compliance costs, but if any do arise, we consider these are

warranted given the obvious safety concerns.

Question 39 Agreement with proposed approach

Do you agree with the approach outlined above? If not, please provide your reasons.





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3.8 Part 4 – Proposed changes to the Labelling Notice

187. The October 2016 consultation document raised the possibility of requiring certain statements to be

provided on pesticide labels to inform users about particular controls set in the HPC Notice. Any such

label statements would be specified in the EPA Labelling Notice. As consultation on the Labelling

Notice has closed, we are providing you with an opportunity to provide feedback within this proposal.

188. With respect to labelling for terrestrial ecotoxicity hazards, the Labelling Notice as consulted on in

September 2016 included the following broad performance-based requirement:

(1) A label for a class 9.2, 9.3 or 9.4 substances that is designed for biocidal action must include an indication of —

(a) the general type of hazard, for example, “ecotoxic in the soil environment”; and

(b) the circumstances in which the hazardous substance may harm living organisms; and

(c) the kind and extent of the harm the hazardous substance is likely to cause to living organisms; and

(d) the steps to be taken to prevent the harm.

(2) If a substance is also a class 9.1 substance the information in sub-clause (1) is additional to any GHS

hazard information.

189. We now propose that the Labelling Notice include a group of labelling controls for pesticides. This

would include a requirement for a generic label statement, instead of the label statement in the

preceding paragraph, together with some more specific label statements in certain circumstances.

190. The generic label statement would apply to all labels for class 9 pesticides and require a statement that

users should take all reasonable steps to avoid significant adverse effects to the environment.

191. The requirements for more specific label statements would either relate to the provision of

precautionary information when using certain types of pesticides, or the need to comply with

application methods set by the Authority in relation to particular approvals. These new proposed label

statements are—

for class 9.1 pesticides (other than vertebrate toxic agents or fumigants) and class 9.1 plant growth

regulators, a statement not to apply into or onto water.

for class 9.3 treated seeds, a statement advising of the need to prevent or deter bird from

accessing the seeds, and also a statement advising that the seeds are not to be used for human or

animal consumption.

for class 9.3 pesticides granules, a statement advising of the need to prevent or deter birds from

accessing the granules.

for class 9.3 substances used as vertebrate baits, a statement advising of the appropriate

application method that must be used (or not used).

for class 9.4 substances, statements advising not apply the substance when bees are foraging or

when plants are in flower or part flower.

for substances where the Authority has set application restrictions (rates, frequency, or interval)

and/or buffer zones distances, these will need to be provided on the substance label, along with a

statement that these restrictions will need to be complied with.

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192. Drafting for the proposed group of label statements to be included in the Labelling Notice is included

immediately below. The particular clauses are also included in boxes in italics in the exposure draft

next to the substantive control in the HPC Notice to which they relate.

Generic label statement required for class 9 pesticides

(1) The label for a class 9 pesticide must include the following statement (or words to this effect)—

(a) “Take all reasonable steps to ensure that the substance does not cause any significant

adverse effects to the environment beyond the application area.”

(2) In the case of a class 9.1 substance, the information required by this clause is in addition to any

GHS hazard information.

Label statement required for class 9.1 pesticides and plant growth regulators

(1) This clause applies to a class 9.1 pesticide, unless it is a vertebrate toxic agent or fumigant, and

class 9.1 plant growth regulators.

(2) The label must include the following statement (or words to this effect)—

(a) “Do not apply directly into or onto water”.

Label statement required for class 9.3 substances coated on a seed

(1) This clause applies to a class 9.3 substance, if it has been coated on a seed.

(2) The label for the seeds must include the following statements (or words to this effect)—

(a) “Ensure any seeds are not accessible to birds”.

(b) “Not to be used for human or animal consumption”

Label statement required for class 9.3 pesticides in granular form

(1) This clause applies to a class 9.3 pesticide if it is in granular form.

(2) The label for the granules must include the following statement (or words to this effect)—

(a) “Ensure any granules are not accessible to birds”.

Label statement required for class 9.3 substances used as vertebrate bait

(1) This clause applies to a class 9.3 substance to be used as bait, or as part of bait, for vertebrate

species.

(2) The label must include any use restrictions, with a statement to the effect that use must be in

accordance with the restrictions.

(3) In this clause use restrictions means methods of release, and repellents or attractants to be

used with the substance, specified by the Authority in accordance with clause 43(1) of the

Hazardous Substances (Hazardous Property Controls) Notice 2017.

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Label statement required for class 9.4 substances

(1) This clause applies to a class 9.4 substance that is in a form that non-target invertebrate

pollinators are likely to be exposed to either during, or after, it is applied to a plant.


(a) “Do not apply substance to plants if—

i. Bees are foraging; or

ii. The plants are in flower or part flower, and are likely to be visited by non-target

invertebrate pollinators (including bees)”

(3) If the Authority has specified a period for the purposes of clause 45(2)(b)(iii) of the Hazard

Property Controls Notice, the label must include the following additional label statement (or

words to this effect)—

(a) “Do not apply the substance to a plant if the plant is likely to flower within x days”

(4) For the purposes of subclause (3), x must be replaced by the number of days specified by the

Authority.

Application restrictions and buffer zone label statements required for class 9 pesticides

(1) The label for a class 9 pesticide must include the following information:

(a) any application restrictions, with a statement to the effect that the restrictions must be

complied with; and

(b) any buffer zone distances set by the Authority in accordance with clause 38 of the Hazard

Property Controls Notice 2017, with a statement to the effect that the substance must not

be applied using the relevant application method within the buffer zone distance.

(2) In this clause—

(a) application restriction means any of the following matters, set by the Authority in

accordance with clause 37(1) of the Hazard Property Controls Notice 2017:

i. application rate;

ii. application interval;

iii. application frequency; and

(b) relevant application method means the application method for which the buffer zone

distance has been set.


193. Pesticide products sold in Australia must be approved and registered by the Australian Pesticides and

Veterinary Medicines Authority (APVMA). The APVMA has measures to manage risks to insect

pollinators and to birds.

194. Part of the roadmap it has developed to manage risks to insect pollinators includes use of protection

labels on products including hazard based label statements (statements which provide an indication of

how toxic a product might be to bees), risk-based statements where exposure is unlikely to result in

levels that will be toxic, and risk-management statements where both a hazard and a potential risk to

bees has been identified.

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195. The APVMA requires labelling on certain substances to state restrictions on use around birds in laying

season.

196. Since 2010 the APVMA has implemented a policy known as the Operating Principles in Relation to

Spray Drift Risk. This policy has been a mandatory consideration applied in the assessment of all new

unique agricultural chemical products that are labelled for use outdoors and can be applied as sprays

or dusts (with some exceptions). Depending on the outcomes of specific product assessments, the

policy may mean products will require mandatory label instructions that include:

minimum droplet size for ground boom or aerial applications

wind speed operating range of 3 to 20 kilometres per hour

maximum boom height for ground boom application

nozzle orientation and shut off requirements for orchard or vineyard equipment

not applying the product when there is a surface temperature inversion present

observing downwind no-spray zones from certain identified sensitive areas.

197. To achieve this policy, the APVMA determines instructions for use and limitations on use for each

product and places them on the product’s label. User compliance with these instructions and limitations

falls under the enforcement powers of the states and territories.

198. In Australia users are also required to comply with labelling instructions on products to ensure they are

applied correctly near water.

199. Countries in the European Union are required to include controls to restrict spray drift on product

labels. All plant protection products are required to be labelled with the phrase ‘do not contaminate

water with the product or its container’.

Benefits and costs

200. The proposed requirements that prescribe label statements for class 9 pesticides will result in less use

of section 77A customised labelling controls and greater clarity and certainty about the default labelling

requirements. Compliance by importers and manufacturers will result in users being more likely to

consider the effects of application of the substance on the environment and therefore benefit the

environment. The requirement for more specific label statements will increase the likelihood that users

will consider the specific effects of pesticide application on water bodies, birds, bees and other

invertebrate pollinators and take the necessary steps to avoid damaging them.

201. It should be noted that the proposed labelling controls for class 9 substances will be applied only to

pesticides in accordance with the definition of that term in the HPC notice. These obligations will not

include pesticide products such as fly-spray designed for use indoors. These proposals will result in

compliance costs for importers, manufacturers and suppliers of pesticides. For newly approved

substances, however, these label statements can be built into the label design from the outset when

the substance is first marketed. For substances covered by existing approvals, or by group standards,

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industry will have a transition period in which to comply (as proposed in the update on proposals for the

Labelling Notice published in September 2016).This will mitigate compliance costs by giving importers

and manufacturers an opportunity to plan ahead for any changes required to labels.

Question 41 Agreement to include additional controls on labels for pesticides

Do you agree that the Labelling Notice should include provisions to require pesticide labels to

include the information listed above? Please provide your reasons.



If yes, please provide your reasons. Note that these labelling controls will be in the Labelling

Notice rather than the HPC Notice.

Refer to italicised boxes in the notice exposure draft, attached as Appendix 1.

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4. Responding to this document

Proposals and submission form

202. The EPA is seeking your opinions as interested parties on the exposure draft of the HPC Notice, and

on the proposals presented in this consultation document. This consultation document includes a

number of questions to help you provide feedback. Your input into this process is important as it will

enable the EPA to make more informed decisions on the content of the final HPC Notice.

203. This consultation document and exposure draft of the HPC Notice will be available for public comment

until 5:00 pm, 19 April 2017.

204. The EPA requests that you make your submission using the separate submission form available here.

205. Completed forms are to be emailed to [email protected].

Posting and release of information

206. The EPA will post all or parts of any written submission on its website at www.epa.govt.nz. By making

a submission, it is implied that you consent to such publication, unless you clearly specify otherwise in

your submission.

207. The content of submissions made are subject to public release under the Official Information Act 1982

if requests are made to the EPA. Please clearly indicate if you have any objection to the release of any

information contained in your submission, and in particular, which part(s) you consider should be

withheld, together with the reason(s) for withholding the information. The EPA will take into account all

such objections when responding to requests for copies and information on submissions to this

document under the Official Information Act 1982.

208. The EPA will review and analyse the submissions received and will prepare a summary of

submissions. All submissions will be available on our website unless they submitter has indicated they

do not want them made public.

Privacy

209. The Privacy Act 1993 establishes certain principles with respect to the collection, use, and disclosure

of information about individuals by various agencies including the EPA. It governs access by

individuals to information about themselves held by agencies. Any personal information you supply in

the course of making a submission will be used only in conjunction with the matters covered by this

document. Please clearly indicate in your submission if you do not wish your name to be included in

any summary of submissions that the EPA may publish.

http://www.epa.govt.nz/Publications/Submission%20form%20consultation%20on%20HPC%20notice%20exposure%20March%202017.docx

mailto:[email protected]

http://www.epa.govt.nz/

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Appendix 1: Exposure Draft of HPC Notice

Hazardous Substances (Hazardous Property Controls) Notice 2017

DRAFT FOR CONSULTATION

This is a consultation draft intended to accompany the Exposure Draft for the Hazardous Substances

(Hazardous Property Controls) Notice Consultation Document dated March 2017. The disclaimer in that

document also applies to this draft notice.

This notice is issued by the Environmental Protection Authority (the Authority) under section 74 of the

Hazardous Substances and New Organisms Act 1996 (the Act). It is issued in accordance with section 76C

of the Act, having had regard to the matters specified in section 76C(2).

Note: it is intended that these sections of the Act will be in force at the time the notice is made.

Table of Contents

Objective of notice .................................................................................................................... 90

Extent of consultation .............................................................................................................. 90

Further information about EPA notices................................................................................... 90

1 Title ............................................................................................................................................ 91

2 Commencement ........................................................................................................................ 91

Part 1 – Preliminary Provisions ............................................................................................... 91

3 Interpretation ............................................................................................................................. 91

4 References to hazard classifications ........................................................................................ 92

5 References to quantities ........................................................................................................... 92

6 References to hazardous substances ....................................................................................... 92

7 Application ................................................................................................................................. 93

8 Ecotoxic controls ....................................................................................................................... 93

9 Additional controls ..................................................................................................................... 93

10 Compliance certificates deemed compliance with certificate requirements ............................. 93

11 Outline of notice ........................................................................................................................ 93

Part 2: Substances restricted to workplaces .......................................................................... 94

12 Certain substances restricted to workplaces only ..................................................................... 94

Part 3: Hazardous substances in a place other than a workplace ........................................ 95

13 Part applies only to non-workplaces ......................................................................................... 95

14 Precautionary measures must be taken ................................................................................... 95

15 Firearms licence required for possession of gunpowder or propellant ..................................... 95

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16 Management of certain hazardous substances must be as safe as in a workplace [Option A] 95

17 Management of certain quantities of substances to be in accordance with HSW HS Regulations

[Option B] .................................................................................................................................. 97

18 Storage of LPG indoors ........................................................................................................... 100

19 Outdoor storage of LPG in quantities more than 100 kg but less than 300 kg ....................... 101

20 Outdoor storage of LPG in quantities of 300 kg or more ........................................................ 101

21 Stationary container systems for domestic oil burning installations that do not exceed 2 500 L in

capacity ................................................................................................................................... 102

22 Stationary container systems for domestic oil burning installations greater than 2 500 L in

capacity ................................................................................................................................... 103

23 Stationary container systems for domestic internal combustion engine installations ............. 104

24 Filling of SCUBA cylinders ...................................................................................................... 105

Part 4: Class 9 substances ..................................................................................................... 106

Subpart A: Labelling, storage, and emergency management (response plans, secondary

containment, and signage)............................................................................................. 106

25 Outline of subpart .................................................................................................................... 106

26 Application of clauses 27 to 32 ............................................................................................... 106

27 Substances must be correctly labelled ................................................................................... 106

28 Stationary container systems .................................................................................................. 106

29 Separation of tanks containing class 9 hazardous substances .............................................. 107

30 Secondary containment systems for pooling substances ....................................................... 107

31 Emergency response plans ..................................................................................................... 108

32 Signage ................................................................................................................................... 108

33 Requirements for labelling, storage and emergency management (secondary containment,

emergency response plans and signage) ............................................................................... 109

Subpart B: Use of class 9 substances in any place ............................................................. 110

34 Application of subpart .............................................................................................................. 110

35 Adverse effects to be avoided ................................................................................................. 110

36 Environmental exposure limits must not be exceeded ........................................................... 110

37 Restrictions on applying a substance in an application plot ................................................... 111

38 Buffer zone distances .............................................................................................................. 111

39 Class 9.1 substances must not be applied to water................................................................ 112

40 Adverse effects of class 9.3 substances to be avoided .......................................................... 113

41 Class 9.3 substances on seeds .............................................................................................. 113

42 Class 9.3 pesticide in granular form ........................................................................................ 113

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43 Use of class 9.3 substances as vertebrate bait ...................................................................... 114

44 Import and manufacture of class 9.3 substances used as vertebrate bait ............................. 114

45 Protection of invertebrate pollinators from class 9.4 substances............................................ 115

Subpart C: Qualifications required for application of class 9 substances ......................... 116

46 Definitions applicable to this subpart ...................................................................................... 116

47 Application of clauses 48 to 51 ............................................................................................... 117

48 Qualifications needed for handling of substances in preparation for application .................... 117

49 Qualifications needed for aerial application ............................................................................ 117

50 Qualifications needed for contractors ..................................................................................... 117

51 Qualifications needed for persons other than contractors ...................................................... 119

52 Qualifications required for pesticides used in urban pest management ................................. 120

Subpart D: Safety data sheets, records, and equipment and for class 9 substances in a

workplace ........................................................................................................................ 121

53 Application of subpart .............................................................................................................. 121

54 Safety data sheets must be obtained and accessible ............................................................. 121

55 Equipment must be appropriate .............................................................................................. 121

56 Records of application of pesticides and plant growth regulators........................................... 121

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Proposals for Hazardous Property Controls Notice

Objective of notice

The objective of this notice is to ………

Extent of consultation

This section will note when the notice is published in the New Zealand Gazette.

The Authority publicly notified its intention to issue this notice on 11 October 2016 by publishing a

proposal document on its website. It invited comments by 21 November 2016. The document was also

sent to relevant persons in accordance with section 76C(1)(c) of the Act, and other interested parties.

Comments were received and taken into account by the Authority during the drafting of this notice. A

further consultation is being undertaken through the publication of this draft notice, and the Exposure

Draft for the Hazardous Substances (Hazardous Property Controls) Notice Consultation Document March

2017 that accompanies this draft notice.

Note: this draft notice contains references to Health and Safety at Work (Hazardous Substances)

Regulations (HSW HS regulations), other EPA notices, and provisions of the HSNO Act that are not yet in

force. It is assumed for the purposes of this draft that these provisions will be in force when this notice

comes into force. Numbering references for the HSW HS regulations are based on Draft for Consultation

published by the Ministry of Business, Innovation & Employment for which submissions closed on 26

February 2016.

Documents incorporated by reference

Information on how to access material incorporated by reference in this notice is available on the EPA

website.

Documents that are incorporated by reference in this notice are also available, on request, for inspection

free of charge during normal business hours at the office of the Authority.

Further information about EPA notices

EPA notices are tertiary instruments that are administered by the Authority. They are subject to the

Legislation Act 2012 (the Legislation Act) and are classed as disallowable instruments. This means that

the notice must be tabled in the House of Representatives, and the House of Representatives may, by

resolution, disallow the notice. The Regulations Review Committee is the select committee responsible

for considering instruments such as this notice under the Legislation Act.

The controls in this notice will apply to all new Part 5 approvals that are approved under the Act on or

after the date of commencement of this notice, unless the particular approval provides otherwise. The

controls will also apply to all group standards issued or reissued on or after the commencement of the

notice, unless the particular group standard provides otherwise.

The EPA anticipates clauses x, y z will be brought into effect for existing Part 5 approvals and transfer

notices immediately upon commencement of this notice. However, the mechanism for achieving this will

be transitional regulations. All other clauses will not apply to Part 5 approvals and transfer notices that

are in place at the time this notice comes into force (until they are re-issued). Information about approvals

that have been reissued or revoked will be available on the EPA website.

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1 Title

This is the Hazardous Substances (Hazardous Property Controls) Notice 2017.

2 Commencement

This notice comes into force on [date to be inserted being same day as the coming into force of

empowering provisions from Hazardous Substances and New Organisms Amendment Act 2015].

Part 1 – Preliminary Provisions

3 Interpretation

(1) In this notice, unless the context otherwise requires,—

Act means the Hazardous Substances and New Organisms Act 1996

application area, in relation to an area to which a hazardous substance is, or intended, to be

applied, means—

(a) the land that the person applying the substance owns or occupies; or

(b) the above-ground water within the boundaries of, or air above, the land owned or occupied

by the person applying the substance for the period of time that the water or air remains

within the boundaries of the land; or

(c) any land, air, or water within an area that a person is authorised, under any enactment, to

apply the substance to

application plot means the part of the application area where the substance is, or is intended to

be, directly applied

approved filler has the same meaning as in the HSW HS Regulations

Authority means the Environmental Protection Authority

EPA means the Environmental Protection Authority

fuel gas has the same meaning in the HSW HS Regulations

HSNO approval number means the unique identifier number allocated to an approval or Group

Standard by the Authority

HSW Act means the Health and Safety at Work Act 2015

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

2017

LPG means liquefied petroleum gas

PCBU has the same meaning as in section 17 of the HSW Act

pesticide—

(a) means a class 9 substance used for pest management to eradicate, modify, or control

organisms—

(i) in agricultural, horticultural, or forestry activities (including in a domestic context); or

(ii) in any place that may be lawfully accessed by the public (with or without payment of a

charge); but


(i) veterinary medicines, fertilisers, anti-fouling paints, timber treatment chemicals, and

antisapstain chemicals; or

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(ii) disinfectants or cleaning products other than when used for the treatment of micro-

organisms on horticultural crops.

pooling substance has the same meaning as in the HSW HS Regulations

stationary container system has the same meaning as in the HSW HS Regulations

stationary tank has the same meaning as in the HSW HS Regulations

supply, in relation to a hazardous substance, includes supply (or resupply) by way of gift, sale or

exchange; and occurs on the passing of possession

veterinary medicine has the same meaning as in the Agricultural Compounds and Veterinary

Medicines Act 1997

water—

(a) means water in all its physical forms whether flowing or not and whether over or under the

ground:

(b) includes fresh water, coastal water, and geothermal water:

(c) does not include water in any form while in any pipe, tank, or cistern

workplace has the meaning given to it under section 20 of the HSW Act.

(2) Any term or expression that is defined in the Act and used, but not defined, in this notice has the

same meaning as in the Act.

4 References to hazard classifications

(1) A reference to a hazardous substance that has a particular class or classification means—

(a) in relation to a substance that does not have an approval under Part 5 of the Act, that it

meets the criteria for that class or classification under the Hazardous Substances

(Classification) Notice 2017 and the Hazardous Substances (Minimum Degrees of Hazard)

Notice 2017; or

(b) in relation to a substance that has an approval under Part 5 of the Act, that the Authority has

given it a corresponding classification in accordance with the criteria set out in paragraph (a).

5 References to quantities

(1) Unless otherwise specified, the quantity of an organic peroxide must be determined by mass.

(2) Where a quantity of gas is specified as cubic metres (m3), this volume is determined by taking the

contents and conditions of the gas held in a container and then calculating the volume that the gas

would occupy at 15°C and 101.3 kPa absolute pressure. Where the quantity of gas is specified in

kilograms (kg), this refers to the net weight of the gas in liquefied form as held in its container.

(3) Unless otherwise specified, where a quantity refers to a class 1 substance, that quantity must be a

net explosive quantity (NEQ), where NEQ is the gross weight less the weight of any construction

materials of the article in kilograms (kg).

Compare: SR 2001/116 r 6; [HSW HS Regulations 2016] r 8

6 References to hazardous substances

Where this Notice imposes obligations by reference to the HSW HS Regulations, any reference to

a hazardous substance in those regulations must be read as having the meaning under the Act for

the purposes of this Notice.

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7 Application

(1) This notice does not apply to—

(a) substances required for the motive power or control of a vehicle, aircraft, or ship, that are

contained in the fuel system, electrical system, or control system of the vehicle, aircraft, or

ship; or

(b) any fuel gas supplied or used in a gas distribution system, gas appliance, or gas installation

(as these terms are defined in the Gas Act 1992), when subject to the Gas Act 1992; or

(c) any fuel gas transported through transmission pipelines when subject to the Health and

Safety in Employment (Pipelines) Regulations 1999; or

(d) a substance that is an ethanol-water dilution intended for drinking—

(i) when the substance is stored in containers of not more than 5 L capacity; or

(ii) when the ethanol content of the substance is not more than 15% by volume.

(2) The provisions of this notice apply subject to—

(a) any variation of these requirements made in accordance with sections 77 or 77A of the Act;

and

(b) the provisions of a relevant group standard as applied in accordance with section 96E of the

Act.

8 Ecotoxic controls

Any provision of this notice which applies to a class 9 substance is an ecotoxic control for the

purposes of the Act.

9 Additional controls

Any reference to the Authority’s power to set an additional control on the approval for a substance

in this Notice is a reference to the Authority’s powers to set a control on a substance under the Act

(including under s 77A or by imposing a condition on a group standard), and is without limitation to

those powers.

10 Compliance certificates deemed compliance with certificate requirements

Where this notice requires a certificate to be obtained from a certifier in accordance with section

82(a) of the Act, a current compliance certificate issued under the HSW HS Regulations which

certifies compliance with the equivalent requirements under those regulations must be treated as a

certificate obtained from a certifier for the purposes of this notice.

11 Outline of notice

(1) Part 2 restricts—

(a) the supply of hazardous substances to places other than workplaces; and

(b) the use of hazardous substances in places other than workplaces.

(2) Part 3 imposes requirements on the management of hazardous substances over certain quantity

thresholds in places other than workplaces

(3) Part 4 imposes requirements on—

(a) the management of class 9 substances in workplaces and non-workplaces; and

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(b) the use of class 9 substances in any place, whether or not it is a workplace (including

qualification requirements); and

(c) the import or manufacture of class 9.3 substances

Part 2: Substances restricted to workplaces

12 Certain substances restricted to workplaces only

(1) This clause applies to a hazardous substance that is of a hazard classification or description listed

in Table 1, but not listed in Table 2.

(2) A person may supply the substance only to a workplace to which the HSW Act applies, and only if

the person has received written confirmation that the PCBU to whom it is being supplied is

prepared to accept responsibility for the substance.

(3) A person who supplies the substance must retain the following written records for 12 months

following the transfer of the substance:

(a) the product name or chemical name and the HSNO approval number of the substance

transferred:

(b) the identity and address of the PCBU that received the transferred substance:

(c) a copy of the confirmation required by subclause (2).

(4) A person may use or store the substance only in a workplace to which the HSW Act applies.

Table 1: Substances to which clause 12 applies (subject to Table 2 exceptions)

Class 1 (explosives)

Class 3.1A (flammable liquids)

Class 3.2A, 3.2B, and 3.2C (liquid desensitised explosives)

Class 4.1.2A, 4.1.2B, 4.1.2C, 4.1.2D, 4.1.2E, 4.1.2F (self-reactive substances and mixtures)

Class 4.1.3A, 4.1.3B, 4.1.3C (solid desensitised explosives)

Class 4.2A, 4.2B (spontaneously combustible substances)

Class 4.3A, 4.3B, 4.3C (solids that emit flammable gas when in contact with water)

Class 5.1.1A (oxidising substances)

Class 5.2A and 5.2B (organic peroxides)

Class 6.1A, 6.1B and 6.1C (acutely toxic)

Class 6.7A (known human carcinogen)

Class 8.2A (highly corrosive to skin)

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Table 2: Exceptions to clause 12 restriction

safety ammunition, including blank ammunition, pre-primed cartridges and primers, of class 1.4S

fireworks in hazard classifications 1.3G, 1.4G, and 1.4S that are controlled under the Hazardous

Substances (Fireworks) Regulations 2001

emergency flares and signalling devices in hazard classifications 1.3G, 1.4G, and 1.4S

model rocket motors of hazard classifications 1.4G and 1.4S

propellants of hazard classifications 1.3C (UN 0161 and 0499)

gunpowder of hazard classification 1.1D (UN 0027)

igniting fuses of hazard classification 1.4G (UN 0317)

igniters of hazard classification 1.4S (UN 0454)

petrol

aviation or racing gasoline of class 3.1A

Part 3: Hazardous substances in a place other than a workplace

13 Part applies only to non-workplaces

This part applies to any place, other than a workplace to which the HSW Act applies.

14 Precautionary measures must be taken

Any person storing, using, or otherwise handling a hazardous substance must take all reasonable

steps to ensure that the precautionary measures described on the label for the substance are

taken.

15 Firearms licence required for possession of gunpowder or propellant

(1) A person must not possess class 1.1D gunpowder or class 1.3C propellant unless the person—

(a) holds a firearms licence issued under section 24 of the Arms Act 1983; or

(b) holds a firearms dealer’s licence issued under section 5 of the Arms Act 1983; or

(c) holds a controlled substance licence issued Part 7 of the HSW HS Regulations, or section

95B of the Act, authorising possession of the substance; or

(d) is an enforcement officer appointed under section 98 or 99(3) of the Act, or is exercising the

powers of an enforcement officer.

(2) Subclause (1) is in addition to any other requirements for the storage of the substance under this

Notice.

16 Management of certain hazardous substances must be as safe as in a workplace [Option A]

(1) This clause applies to a substance listed in Table 3, if it is at a place in a quantity exceeding the

amount listed against the substance in column 2 of Table 3.

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(2) The person in charge of the place must:

(a) ensure that the substance is stored, handled, used, and otherwise managed to a level of

safety that is equivalent to the level of safety that would be achieved by a PCBU managing

the substances in accordance with the HSW Act in a workplace to which the HSW Act

applies; and

(b) have an equivalent level of competency to that required of a person in control of the

substance under the HSW Act.

(3) However, in the case of gunpowder, a controlled substance licence is not required for the purposes

of this Notice.

(4) The person in charge of the place must—

(a) ensure that the place—

(i) has a current certificate, obtained in accordance with section 82(a) of the Act from a

certifier authorised under section 211(1)(k) of the HSW Act in respect of equivalent

requirements under the HSW Act, certifying that the place meets the requirements of

subclause (2)(a); or

(ii) a relevant test certificate; and

(b) if the substance is required by the HSW HS Regulations to be under the personal control of

an approved handler, hold—

(i) a certificate, obtained in accordance with section 82(a) of the Act from a certifier

authorised under section 211(1)(k) of the HSW Act in respect of compliance

certificates for approved handlers under HSW Act, certifying that the place meets the

requirements of subclause (2)(b); or

(ii) a relevant test certificate.

(5) A certifier who issues a certificate under subclause (4) must—

(a) include an expiry date on the certificate, being—

(i) in the case of a certificate issued under subclause (4)(a)(i), three years after the date

of issue; and

(ii) in the case of a certificate issued under subclause (4)(b)(i), five years after the date of

issue; and

(b) as soon as practicable after the issue of the certificate, provide to the EPA any information

regarding the certificate which the EPA may request, in a manner or form approved by the

EPA.

(6) In this clause, relevant test certificate means one or more test certificates issued under

section 82 of the Act (as it was before the commencement of section 29 of the Hazardous

Substances and New Organisms Amendment Act 2015) that—

(a) certifies that the place or person meets all of the equivalent requirements under the Act that

were in force prior to the commencement of Schedule 1 of the Hazardous Substances and

New Organisms Amendment Act 2015; and

(b) has not expired or been revoked.

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[NOTE: column 3 of Table 3 would be omitted for Option A, but included for Option B]

OR

17 Management of certain quantities of substances to be in accordance with HSW HS Regulations [Option B]

(1) This clause applies to the substances listed in Table 3, if it is at a place in a quantity exceeding the

amount listed against the substance in column 2 of Table 3.

(2) The provisions of the HSW HS Regulations listed against the substance in column 3 of Table 3,

apply to the substance for the purposes of this Notice with all necessary modifications, as if—

(a) any reference to “workplace” in those regulations is replaced with “place”:

(b) any reference in those regulations to “relevant PCBU” is replaced with “relevant person”:

(c) any other reference in those regulations to “PCBU” is replaced with “person”:

(d) any reference in those regulations to “work” is replaced with “activities”:

(e) any reference to in those regulations “worker” is replaced with “any person in the place”:

(f) any reference in those regulations to WorkSafe approving an action in relation to a below

ground stationary tank that has ceased to store a hazardous substance is omitted:

(g) any reference in those regulations to WorkSafe’s ability to approve the reduction of the

required capacity of a secondary containment system is omitted:

(h) any reference in those regulations to WorkSafe’s ability to grant an exemption from a

requirement is omitted:

(i) any requirement to obtain a controlled substance licence is omitted:

(j) any reference to WorkSafe’s ability to waive or vary requirements is omitted:

(k) any requirement to notify WorkSafe is replaced by a requirement to notify the EPA:

(l) any reference to a compliance certificate is replaced with a reference to a HSNO certificate:

(m) any statement in those regulations that a person who has contravened a regulation commits

an offence is omitted.

(3) A certifier who issues a HSNO certificate must—

(a) include an expiry date on the certificate, being—

(i) In the case of a certificate that certifies that the requirements for an approved handler

compliance certificate have been met for the purposes of this notice, five years after

the date of issue; and

(ii) In the case of a certificate certifying equivalent compliance with any other matter,

three years after the date of issue.



EPA.


HSNO certificate means—

(a) a certificate obtained in accordance with section 82(a) of the Act from a certifier authorised

under section 211(1)(k) of the HSW Act in respect of equivalent requirements, certifying that

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the relevant equivalent requirements of the HSW HS Regulations have been met for the

purposes of this notice; or

(b) a test certificate issued under section 82 of the Act (as it was before the commencement of

section 29 of the Hazardous Substances and New Organisms Amendment Act 2015) that—

(i) certifies that the person has, in relation to the same matter, met the equivalent

requirements of the Act that were in force prior to the commencement of Schedule 1 of

the Hazardous Substances and New Organisms Amendment Act 2015; and

(ii) has not expired or been revoked

relevant person means—

(c) the person in charge of the place where the stationary container is located; or

(d) any person who manages or controls the stationary containment system.

Table 3: Quantity restrictions for storage

Column 1

Hazard Classification or Description of

Substance

Column 2

Trigger Quantity

Column 3

safety ammunition (UN0012), or blank

cartridges (UN0014), including pre-

primed cartridges (UN0055) or primers

(UN0044), of class 1.4S

10 000 kg (gross weight) Part 2 (Labelling, signage, safety data

sheets, and packaging)

Part 3 (General duties relating to risk

management)

Part 4 (Approved handlers and

supervision and training of workers)

Part 5 (Emergency management)

Part 9 (Class 1 substances)

fireworks of classes 1.3G, 1.4G or 1.4S

that are controlled under the Hazardous

Substances (Fireworks) Regulations

2001

500 kg (gross weight)

emergency flares or signalling devices of

classes 1.3G, 1.4G or 1.4S


model rocket motors of classes 1.4G or

1.4S


propellants of class 1.3C (UN 0161 and

0499)

15 kg

gunpowder of class 1.1D (UN 0027) 15 kg

igniting fuses of hazard classification

1.4G (UN 0317)


igniters of hazard classification 1.4S (UN

0454)


2.1.1A (excluding LPG – see Table 6

below)

100 kg (if not a

permanent gas)

30 m3 (if a permanent

gas)

Part 2 (Labelling, signage, safety data



management)

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Column 1


Substance

Column 2

Trigger Quantity

Column 3

2.1.2A 3 000 L aggregate water

capacity




Part 16 (Tank wagons and

transportable containers)

Part 17 (Stationary container systems)

Part 10 (Class 2, 3, and 4 substances)

Part 11 ( Controls relating to adverse

effects of unintended ignition of class 2

and 3.1 substances)

Part 15 (Gases under pressure)

Petrol 50 L

Aviation or racing gasoline of class 3.1A 50 L

3.1B 50 L

3.1C 250 L (excluding in oil

burning installations

subject to clause 22 )

3.1D (other than diesel) 10 000 L

Diesel 1 000 L

4.1.1A 1 kg

4.1.1B 100 kg

4.2C 25 kg

5.1.1B 50 kg or 50 L Part 2 (Labelling, signage, safety data



management)




Part 12 (Class 5 substances)



Part 17 (Stationary container systems)

Part 15 (Gases under pressure)

5.1.1C 100 kg or 100 L

5.1.2A 50 kg or 50 m3

5.2C, 5.2D, 5.2E, or 5.2F 10 kg or 10 L

6.1D, 6.5A, or 6.5B 1 000 kg or 1 000 L Part 2 (Labelling, signage, safety data



management)




Part 13 (Class 6 and 8 substances)

6.6A, 6.7B, 6.8A, or 6.9A 10 000 kg or 10 000 L

8.2B 1 000 kg or 1 000 L

8.2C, or 8.3A 10 000 kg or 10 000 L

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Column 1


Substance

Column 2

Trigger Quantity

Column 3



Part 17 (Stationary container systems

Class 9 substances (for information only) Refer to clause 33

18 Storage of LPG indoors

(1) A person who stores LPG indoors, at a location described in column 1 of Table 4, must ensure that

it is stored in—

(a) a quantity not exceeding the amount specified against the location in column 2; and

(b) cylinders not exceeding the size specified against the location in column 3.

Table 4: Maximum quantities of LPG permitted to be held indoors in non-workplaces

Column 1

Indoor Location

Column 2

Maximum quantity of LPG

Column 3

Maximum cylinder size

Residential dwellings comprising:

a detached house or single storey

attached dwelling

20 kg per dwelling 10 kg

multi-storey attached dwellings, up to

and including 3 storeys

20 kg per dwelling

multi-storey attached dwellings of

over 3 storeys.

10 kg per dwelling

Other areas of regular habitation

(excluding residential dwellings listed

above), within buildings with a roof

and three or more walls that:

are not attached to residential or

other occupancies

10 kg per 10 m2 of the indoor

floor area, up to a maximum

total quantity of 100 kg.

10 kg

are attached to residential or other

occupancies

20 kg per premises. 10 kg

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19 Outdoor storage of LPG in quantities more than 100 kg but less than 300 kg

(1) A PCBU delivering LPG to a location where, after the delivery, the total quantity of LPG at the

location is more than 100 kg but less than 300 kg must—

(a) ensure the LPG is stored in cylinders and the cylinders are located outside; and

(b) ensure the location meets the minimum standards described in regulation 11.43(4) of the

HSW HS Regulations (with any necessary modifications); and

(c) fix in a permanent and prominent location a unique numbered compliance plaque confirming

compliance with the minimum standards described in regulation 11.43(4) of the HSW HS

Regulations.

(2) The PCBU must ensure the compliance plaque—

(a) is fixed within 60 days of the PCBU’s initial delivery of LPG to the location; and

(b) has an expiry date no longer than 36 months from the date of issue.

(3) However, a PCBU may deliver LPG without ensuring compliance with subclause (1)(c) and (2), if

the location has a valid compliance plaque at the time of delivery.

(4) The PCBU must notify the EPA as soon as practicable (and no more than 20 working days) after

fixing a compliance plaque in accordance with subclause (1)(c).

20 Outdoor storage of LPG in quantities of 300 kg or more

(1) The person in charge of a place where the total quantity of LPG is 300 kg or more must ensure that

the place has a current certificate, obtained in accordance with subclause (2), certifying that the

place meets the requirements of subclause (3), or a relevant test certificate.

(2) The certificate referred to in subclause (1) must be obtained under section 82(a) of the Act from a

certifier authorised under section 211(1)(k) of the HSW Act in respect of the requirements in

regulation 10.33 of the HSW HS Regulations.

(3) The certificate must certify that the place meets the requirements for a compliance certificate under

regulation 10.33 of the HSW HS Regulations (including all requirements that are referred to within

that regulation), with all necessary modifications, as if—

(a) any reference in those regulations to “workplace” is replaced with “location”:

(b) any reference in those regulations to “relevant PCBU” is replaced with “relevant person”:

(c) any other reference in those regulations to “PCBU” is replaced with “person”:

(d) any reference in those regulations to “work” is replaced with “activities”:

(e) any reference in those regulations to “worker at the location” is replaced with “person in the

location”:

(f) any other reference in those regulations to “worker” is replaced with “person in the location”:



(h) any reference to WorkSafe’s ability to grant an exemption from a requirement is omitted:

(i) any reference to WorkSafe’s ability to waive or vary requirements is omitted:

(j) any requirement to notify WorkSafe is replaced by a requirement to notify the EPA:

(k) any references in those regulations to a compliance certificate are omitted:

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(l) any statement in those regulations that a person who has contravened a regulation commits


(4) The certifier must—

(a) include an expiry date on the certificate, being 36 months after the date of issue; and



EPA.

(5) A PCBU must not deliver LPG to a location if, after the delivery, the total quantity of LPG at the

location is 300 kg or more, unless the location has a certificate certifying that the place meets the

requirements of subclause (3), or a relevant test certificate.

(6) In this clause,

relevant person means—

(a) the person in charge of the place where the stationary container is located; or

(b) any person who manages or controls the stationary containment system

relevant test certificate means a location test certificate issued under section 82 of the Act (as it

was before the commencement of section 29 of the Hazardous Substances and New Organisms

Amendment Act 2015) that—

(a) certifies that for the quantity of LPG present, the location meets the requirements that were

in force under the Act prior to the commencement of Schedule 1 of the Hazardous

Substances and New Organisms Amendment Act 2015; and


21 Stationary container systems for domestic oil burning installations that do not exceed 2 500 L in capacity

(1) This clause applies to a stationary container system if—

(a) it is in a building; and

(b) it is used to contain a hazardous substance; and

(c) it is used to supply a fuel to a burner; and

(d) the stationary container system has a capacity of no less than 60 L; and

(e) the stationary tank used to store the substance that is part of the stationary container system

has a capacity of 2 500 L or less.

(2) A person must not fill or partially fill the tank within the stationary container system with a

hazardous substance that has a flashpoint less than 50 ºC.

(3) A person who installs the stationary container system must ensure that:

(a) the stationary tank that is part of the system that is used to store the substance—

(i) is located outdoors; and

(ii) has a secondary containment system, if the capacity of the stationary tank is greater

than 1 200 L; and

(iii) is of a design that is certified under regulation 17.92(1)(a) of the HSW HS Regulations;

and

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(iv) is constructed by a fabricator that is certified under regulation 17.92(1)(b) of the HSW

HS Regulations, in respect of that design; and

(v) is marked in accordance with regulation 17.75(1) of the HSW HS Regulations; and

(b) the burner is—

(i) approved in accordance with Subpart 12 of Part 17 (Burners) of the HSW HS

Regulations; and

(ii) fed by gravity; and

(c) any pipework that forms part of the stationary container system complies with regulation

17.58 of the HSW HS Regulations; and

(d) the installation is equipped with an emergency shutdown valve that:

(i) stops the supply of fuel from the tank to the burner; and

(ii) is located outside the building and as close as practicable to the tank.

Compare: Gazette 2006, p 872 r 64

22 Stationary container systems for domestic oil burning installations greater than 2 500 L in capacity

(1) This clause applies to a stationary container system if—

(a) it is used to contain a hazardous substance; and

(b) it is used to provide fuel to a burner; and

(c) the stationary tank used to store the substance that is part of the stationary container system

has a capacity greater than 2 500 L.

(2) A person must not fill or partially fill the tank within the stationary container system with a

hazardous substance that has a flashpoint less than 50 ºC.

(3) A person who installs the stationary containment system, and any person who fills or partially fills

the tank within the stationary container system with a hazardous substance, must ensure the

stationary container system has a certificate issued in accordance with subclause (4), or a relevant

test certificate.

(4) The certificate must:

(a) be obtained under section 82(a) of the Act, from a certifier authorised under section

211(1)(k) of the HSW Act 2015 in respect of the requirements in regulation 17.90 of the HSW

HS Regulations; and

(b) certify that the stationary container system meets the requirements for a compliance

certificate to be issued under regulation 17.90 of the HSW HS Regulations (with all

necessary modifications).


(a) ensure the certificate—

(i) is not issued unless the stationary container system meets the requirements for a

compliance certificate to be issued under regulation 17.90 of the HSW HS Regulations

(with all necessary modifications); and

(ii) includes an expiry date on the certificate, being 5 years after the date of issue; and

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EPA.

(6) In this clause, relevant test certificate means a test certificate issued under section 82 of the Act

(as it was before the commencement of section 29 of the Hazardous Substances and New

Organisms Amendment Act 2015) that—

(a) certifies that the stationary container system meets the equivalent requirements for a

stationary container system that were in force under the Act prior to the commencement of

Schedule 1 of the Hazardous Substances and New Organisms Amendment Act 2015; and


23 Stationary container systems for domestic internal combustion engine installations

(1) This clause applies to a stationary container system if it—

(a) is used to contain a hazardous substance; and

(b) is used to provide fuel to an internal combustion engine; and

(c) in the case of a system used to contain a class 3.1A, 3.1B or 3.1C substance, has a capacity

of 50 L or more; and

(d) in the case of a system used to contain any other hazardous substance, has a capacity of

500 L or more.

(2) A person who installs the stationary container system, and any person who fills or partially fills the

tank within the stationary container system with a hazardous substance, must ensure the stationary

container system has a certificate issued in accordance with subclause (3), or a relevant test

certificate.

(3) The certificate must:

(a) be obtained under section 82(a) of the Act, from a certifier authorised under section

211(1)(k) of the HSW Act in respect of the requirements in regulation 17.90 of the HSW HS

Regulations; and

(b) certify that the stationary container system meets the requirements for a compliance

certificate to be issued under regulation 17.90 of the HSW HS Regulations (with all

necessary modifications).


(a) ensure the certificate:

(i) is not issued unless the stationary container system meets the requirements for a

compliance certificate to be issued under regulation 17.90 of the HSW HS Regulations

(with all necessary modifications); and

(ii) includes an expiry date on the certificate, being 5 years after the date of issue ;



EPA.

(5) In this clause, relevant test certificate means a test certificate issued under section 82 of the Act

(as it was before the commencement of section 29 of the Hazardous Substances and New

Organisms Amendment Act 2015) that—

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(a) certifies that the stationary container system meets the equivalent requirements for a

stationary container system that were in force under the Act prior to the commencement of

Schedule 1 of the Hazardous Substances and New Organisms Amendment Act 2015; and


24 Filling of SCUBA cylinders

(1) A person must not charge a self-contained underwater breathing apparatus unless—

(a) the cylinder—

(i) has passed the tests in regulation 15.53(3) of the HSW HS Regulations, or the tests

referred to in regulation 15.3(3) of the HSW HS Regulations, at the intervals following

manufacture specified for the type of cylinder in the column 2 in Schedule 21 of the

HSW HS Regulations; and

(ii) meets the requirements of 15.57(1)(b) and (d) of the HSW HS Regulations (including

all requirements that are referred to within that regulation); and

(iii) is filled only with air that meets the requirements of regulation 15.63(1)(a) and (b) of

the HSW HS Regulations; and

(b) the person—

(i) is an approved filler; or

(ii) is supervised by an approved filler; or

(iii) is able to provide evidence that the person has previously demonstrated to the

satisfaction of an approved filler, that the person is conversant in the safe:

(A) procedures and practice for the filling of a cylinder; and

(B) use of the relevant equipment.

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Part 4: Class 9 substances

Subpart A: Labelling, storage, and emergency management (response

plans, secondary containment, and signage)

25 Outline of subpart

(1) This subpart imposes requirements relating to labelling, stationary container systems, separation

distances, emergency response plans, secondary containment, and signage for class 9

substances.

(2) Many of the provisions refer to certain provisions of the HSW HS Regulations, and apply them for

the purposes of this Notice as if they applied to certain class 9 substances.

(3) However—

(a) the offence provisions of the relevant HSW HS Regulations are disapplied, because

enforcement of those regulations as they apply to a class 9 substance must be undertaken

under the Act, rather than the HSW Act; and

(b) the provisions of the relevant HSW HS Regulations which relate to the exercise of

WorkSafe’s discretionary powers under the HSW Act are disapplied, as those powers are

not able to be used for the purposes of this Notice; and

(c) in the case of class 9 substances in a place other than a workplace, additional modifications

to the application of the relevant HSW HS Regulations are made, as these are necessary to

ensure the requirements are relevant to the context in which they apply.

Workplace requirements

26 Application of clauses 27 to 32

Clauses 27 to 32 apply in a workplace.

27 Substances must be correctly labelled

(1) Regulation 2.1 of the HSW HS Regulations applies for the purposes of this Notice, as if any

reference to a “hazardous substance” in that regulation is replaced with the reference to a class 9

substance.

(2) Despite subclause (1), any provision of the HSW HS Regulations which states that a person who

has contravened a regulation commits an offence, does not apply for the purposes of this Notice.

Compare: SR [HSW HS Regulations] r2.8

28 Stationary container systems

(1) Part 17 of the HSW HS Regulations apply to a class 9.1 substance for the purposes of this Notice

as if—

(a) the references in that Part to a hazardous substance where the class of the hazardous

substance not specified, are references to a class 9.1 substance:

(b) the quantity of class 9.1A, 9.1B. 9.1C and 9.1D liquids specified in Table 4 of this Notice are

specified in Schedule 16 of the HSW HS Regulations:

(c) Subparts 8 to 12 do not apply:

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(d) any references in those regulations to a compliance certificate are omitted:

(e) any reference in those regulations to WorkSafe approving an action in relation to a below

ground stationary tank that has ceased to store a hazardous substance is omitted:

(f) any reference to WorkSafe’s ability to grant an exemption from a requirement is omitted:



(h) any reference to WorkSafe’s ability to waive or vary requirements is omitted:

(i) any statement in those regulations that a person who has contravened a regulation commits


29 Separation of tanks containing class 9 hazardous substances

(1) An above ground stationary tank that contains a class 9.1 hazardous substance that does not also

have a flammable classification, or a class 6.1A, or class 6.1B, or class 6.1C or class 6.1D,

classification, or a class 8 classification, must be separated from an area of high intensity land use

by a distance not less than the distance specified in Table 5 in relation to the size of the tank.

Table 5: Separation distances

Container capacity (litres) Distance (metres)

Up to 3 000 3

3 001 to 50 000 5

Greater than 50 000 8

(2) In this clause, area of high intensity land use—

(a) includes—

(i) any dwelling, hospital, school, airport, commercial premises, office, or other area

where people regularly congregate; and

(ii) a structure made of or containing combustible materials that would sustain a

significant fire; and

(iii) a high density traffic route; but

(b) does not include a small office constructed of non-combustible materials associated with a

hazardous substance location that is used by persons authorised to be at the location by the

person in charge of that location.

Compare: (Gazette 2006, p 846, r 31)

30 Secondary containment systems for pooling substances

(1) Regulation 13.34 of the HSW HS Regulations applies for the purposes of this Notice in relation to a

class 9 substance, as if the reference in regulation 13.34(1)(a) to an aggregate quantity of class 6

or 8 substances more than the quantity specified in Schedule 16 of those regulations was a

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reference to the aggregate quantity of class 9 pooling substances more than the quantity specified

in Table 6 of this Notice.

(2) Despite subclause (1), for the purposes of this clause—

(a) the power for WorkSafe to approve the reduction of the required capacity of a secondary

containment system (as stated in regulation 17.99(1) and referred to in regulation 13.34)

does not apply; and

(b) any provision of the HSW HS Regulations which states that a person who has contravened a

regulation commits an offence does not apply.

Compare: SR [HSW HS Regulations] r13.4

Table 6 – Threshold quantities for secondary containment and emergency response plan

Hazard classification Description Quantity

9.1A

liquid 100 L

solid 100 kg

9.1B, 9.1C

liquid 1 000 L

solid 1 000 kg

9.1D

liquid 10 000 L

solid 10 000 kg

31 Emergency response plans

(1) Regulations 5.5 to 5.12 of the HSW HS Regulations apply for the purposes of this Notice in relation

to a class 9 substance, as if the references to Schedule 5 in those regulations were references to

Table 6 of this Notice.



(3) An emergency response plan required by this clause may be part of any other management

documentation for an emergency whether—

(a) required by the HSW Act or another enactment; or

(b) undertaken by a PCBU for some other reason.

Compare: SR 2001/123 r 25, 28, 29, 30, 32, 33, 34, [HSW HS Regulations] r 5.5 - 5.13

32 Signage

(1) Regulations 2.4 to 2.7 of the HSW HS Regulations apply for the purposes of this Notice in relation

to a class 9 substance, as if the quantities specified in Table 7 of this notice were specified in

Schedule 3 of those regulations.

(2) However any provision of the HSW HS Regulations which states that a person who has

contravened a regulation commits an offence, does not apply for the purposes of this Notice.

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Table 7: Threshold quantities for signage

Hazard classification Description Quantity

9.1A, 9.2A, 9.3A, 9.4A

liquid 100 L

solid 100 kg

9.1B, 9.1C, 9.2B, 9.2C, 9.3B,

9.4B, 9.4C

liquid 1 000 L

solid 1 000 kg

9.1D, 9.2D, 9.3C

liquid 10 000 L

solid 10 000 kg

Compare [HSW HS Regulations] r 2.4 to 2.7, SR 2001/123 r 42, and SR 2001/124 r51 and 52

Requirements in a place other than a workplace

33 Requirements for labelling, storage and emergency management (secondary containment, emergency response plans and signage)

(1) Clauses 27 to 32 apply in any place other than a workplace, subject to subclause (2).

(2) Where provisions of the HSW HS Regulations are referred to in clauses 27 to 32, those regulations

must be read subject to the following modifications (in addition to those described in clauses 27 to

32)—

(a) any reference to “workplace” is replaced with “place”:

(b) any reference to “relevant PCBU” is replaced with “relevant person”:

(c) any other reference to “PCBU” is replaced with “person”:

(d) any reference to “work” is replaced with “activities”:

(e) any reference to “worker” is replaced with “any person in the place”.

(3) In this clause, relevant person means—

(a) the person in charge of the place where the stationary container is located; or

(b) any person who manages or controls the stationary containment system.

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Subpart B: Use of class 9 substances in any place

34 Application of subpart

This subpart applies in any place, whether or not it is a workplace.

35 Adverse effects to be avoided

A person who applies a class 9 pesticide must take all reasonable steps to ensure that the

substance does not cause any significant adverse effects to the environment beyond the

application area.

Compare: [HSW HS Regulations] r 13.22(1)

The following provision is intended to form a part of the EPA Labelling Notice. It is

presented here for ease of reference only

Generic label statement required for class 9 pesticides

(1) The label for a class 9 pesticide must include the following statement (or words to

this effect)—

“Take all reasonable steps to ensure that the substance does not cause any

significant adverse effects to the environment beyond the application area.”

(2) In the case of a class 9.1 substance, the information required by this clause is in

addition to any GHS hazard information.

36 Environmental exposure limits must not be exceeded

(1) A person must not use a class 9 substance in a manner that allows the concentration of the

substance to exceed the environmental exposure limit set for the substance in the environmental

medium concerned.

(2) However, where there is an environmental exposure limit for a substance in surface water, a

person must not use the substance in a manner that allows the substance to exceed the limit within

receiving waters after reasonable mixing.

(3) If a person is applying a class 9 pesticide or plant growth regulator in an application area,

subclauses (1) and (2) only apply to environmental media beyond the application area.

(4) This clause does not apply where the Authority has set the relevant environmental exposure limit

for guidance only.


environmental exposure limit means a concentration of a substance in an environmental medium

as set—

(a) under section 77B of the Act, unless the Authority has set the limit for guidance only; or

(b) by the Authority under the Hazardous Substances (Classes 6, 8 and 9 Controls) Regulations

2001, unless the Authority has determined that the limit is no longer applicable

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environmental medium means water, soil, or sediment where these are in the natural

environment, or a surface that a hazardous substance may be deposited onto, as specified by the

Authority in relation to an environmental exposure limit.

Compare SR 2001/117 r 45

37 Restrictions on applying a substance in an application plot

(1) Without limiting other additional controls, the Authority may set one or more of the following matters

for a specified application method for a class 9 substance at the time at which it approves a

substance:

(a) a maximum application rate:

(b) a maximum application frequency:

(c) a minimum application interval.

(2) A person must not apply a substance using the specified application method in an application

plot—

(a) at a rate greater than the maximum application rate; or

(b) more frequently than the maximum application frequency; or

(c) at any time after a previous application of the substance, that is within the minimum

application interval.


application frequency means the number of times a substance is applied within a specified time

period;

application interval means the time that elapses between applications of the substance; and

application rate means the quantity of the substance that is applied per unit area

Compare SR 2001/117 r48

38 Buffer zone distances

(1) The Authority may set one or more buffer zone distances in relation to an application method for a

class 9 substance as an additional control on the approval for the substance.

(2) A person who applies the substance using an application method for which a buffer zone distance

has been set must ensure the application plot is not within any buffer zone distance set for the

substance.


buffer zone distance means a specified horizontal distance from a downwind sensitive area

sensitive area means a description of a type of place in which people or organisms may be

significantly adversely affected by a substance, as specified by the Authority when it sets a buffer

zone distance for a substance.

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Application restrictions and buffer zone label statements required for class

9 substances

(1) The label for a class 9 substance must include the following information:

(a) any application restrictions, with a statement to the effect that the restrictions

must be complied with; and

(b) any buffer zone distances set by the Authority in accordance with clause 38

of the Hazardous Substances (Hazardous Property Controls) Notice 2017,

with a statement to the effect that the substance must not be applied using

the relevant application method within the buffer zone distance.


application restriction means any of the following matters, set by the Authority in

accordance with clause 37(1) of the Hazardous Substances (Hazardous Property

Controls) Notice 2017:

(a) application rate;

(b) application interval;

(c) application frequency; and

relevant application method means the application method for which the buffer

zone distance has been set.

39 Class 9.1 substances must not be applied to water

(1) A person must not apply a class 9.1 pesticide or class 9.1 plant growth regulator directly into or

onto water.

(2) This clause does not apply to a vertebrate toxic agent or fumigant.

The following provision is intended to form a part of the EPA Labelling Notice. It is presented

here for ease of reference only

Label statement required for class 9.1 pesticides and plant growth regulators

(1) This clause applies to a class 9.1 pesticide, unless it is a vertebrate toxic agent or

fumigant, and class 9.1 plant growth regulators.


“Do not apply directly into or onto water”.

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40 Adverse effects of class 9.3 substances to be avoided

A person who uses a class 9.3 substance must take all reasonable steps to ensure non-target

terrestrial vertebrates are not adversely affected by the substance.

41 Class 9.3 substances on seeds

(1) A person who coats a seed with a class 9.3 substance must ensure the coated seed is coloured to

distinguish it from a seed that has not been coated with a hazardous substance.

(2) A person who sows a seed coated with a class 9.3 substance must—

(a) ensure the seed is coloured in accordance with subclause (1); and

(b) take all reasonable steps to ensure that, if sown—

(i) the seed is completely covered with soil; or

(ii) birds are prevented or deterred from foraging on the application plot.

(3) A person in control of a seed that has been coated with a class 9.3 substance, must take all

reasonable steps to ensure that the seed is not accessible to birds at any time.



Label statement required for class 9.3 substances coated on a seed

(1) This clause applies to a class 9.3 substance, if it has been coated on a seed.

(2) The label for the seeds must include the following statements (or words to this effect)—

(a) “Ensure any seeds are not accessible to birds”

(b) “Not to be used for human or animal consumption”

42 Class 9.3 pesticide in granular form

(1) A person who applies a class 9.3 pesticide in granular form to an application plot must take all

reasonable steps to ensure that—

(a) the granules are completely covered with soil once applied; or

(b) birds are prevented or deterred from foraging on the application plot.

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Label statement required for class 9.3 pesticide in granular form

(1) This clause applies to a class 9.3 pesticide, if it is in granular form.

(2) The label for the granules must include the following statement (or words to this effect)—

“Ensure any granules are not accessible to birds”.

43 Use of class 9.3 substances as vertebrate bait

(1) The Authority may specify one or more of the following matters (bait specifications) as controls on

the approval for a class 9.3 substance:

(a) bait size:

(b) degree of palatability:

(c) methods of release:

(d) repellents or attractants to be used with the substance.

(2) A person must not use the substance outdoors as bait, or part of bait, for vertebrate species,

unless it is—

(a) blue or green; and

(b) used in accordance with each bait specification that has been specified in accordance with

subclause (1).

44 Import and manufacture of class 9.3 substances used as vertebrate bait

(1) This clause applies to a class 9.3 substance if it is reasonable to expect the substance may be

used outdoors as bait, or part of bait, for vertebrate species.

(2) A person who imports or manufactures a class 9.3 substance must ensure that the substance

meets any bait specifications described in clause 43(1)(a) and (b), and clause 43(2)(a).

Compare: SR 2001/117 r 51



Label statement required for class 9.3 substances used as vertebrate bait

(1) This clause applies to a class 9.3 substance to be used as bait, or as part of bait, for

vertebrate species.

(2) The label must include any use restrictions, with a statement to the effect that use must

be in accordance with the restrictions.

(3) In this clause use restrictions means methods of release, and repellents or attractants to

be used with the substance, specified by the Authority in accordance with clause 43(1) of

the Hazardous Substances (Hazardous Property Controls) Notice 2017.

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45 Protection of invertebrate pollinators from class 9.4 substances

(1) This clause applies if a class 9.4 substance is applied to a plant, and it is in a form that non-target

invertebrate pollinators are likely to be exposed to either during, or after, it is applied to a plant.

(2) A person who applies the substance to an application plot must ensure the application plot does

not include any—

(a) bees that are foraging; or

(b) plants (including trees and weeds) that are—

(i) likely to be visited by non-target invertebrate pollinators; and

(ii) in flower or part flower; or

(iii) likely to flower within the period specified by the Authority as an additional control on

the approval for the substance.

(3) Subclauses (2) does not apply if the application plot is indoors, and the substance is contained

within the facility; or

(4) In this clause, invertebrate pollinator means an invertebrate agent that moves pollen from the

male anthers of a flower to the female stigma of a flower, including (without limitation): bees, pollen

wasps, ants, hoverflies, butterflies, moths and flower beetles.

Compare: SR 2001/117 r 49



Label statement required for class 9.4 substances

(1) This clause applies to a class 9.4 substance if is in a form that non-target

invertebrate pollinators are likely to be exposed to either during, or after, it is applied

to a plant.


“Do not apply substance to plants if—

(i) Bees are foraging; or

(ii) The plants are in flower or part flower, and are likely to be visited by

non-target invertebrate pollinators (including bees)”

(3) If the Authority has specified a period for the purposes of clause 0(2)(b)(iii) of the

Hazardous Substances (Hazard Property Controls) Notice, the label must include

the following additional label statement (or words to this effect)—

“Do not apply the substance to a plant if the plant is likely to flower within x

days”

(4) For the purposes of subclause (3), x must be replaced by the number of days

specified by the Authority.

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Subpart C: Qualifications required for application of class 9 substances

46 Definitions applicable to this subpart

(1) In this subpart—

contractor—

(a) means a PCBU or worker applying the substance; but


(i) a PCBU with management and control of the place to which the substance is being

applied; or

(ii) a worker who carries out work for the PCBU with management and control of the

place to which the substance is being applied, and does not customarily apply the

substance to any other place; or

(iii) a PCBU with management and control of a place in the local vicinity of the place to

which the substance is applied, applying the substance to assist the PCBU with

management and control of the place to which the substance is being applied in the

conduct or that PCBU’s business or undertaking

qualified contractor means a contractor who—

(a) from one row appearing alongside the relevant application method listed in column 1 of

Table 8—

(i) holds at least one qualification or unit standard in column 2; and

(ii) has been credited with one or more relevant unit standards in column 3 (if unit

standards are listed alongside the qualification or unit standard held from column 2);

and

(iii) can provide evidence of having applied the substance using the relevant application

method on two or more application areas; or

(b) holds a relevant test certificate

qualified person means a person who—

(a) from one row appearing alongside the relevant application method listed in column 1 of

Table 9—

(i) holds at least one qualification or unit standard in column 2; and

(ii) has been credited with one or more relevant unit standards in column 3 (if unit

standards are listed alongside the qualification or unit standard held from column 2);

and

(iii) can provide evidence of having applied the substance using the relevant application

method on two or more application areas; or

(b) holds the qualifications required by a qualified contractor for the application method under

clause 50; or

(c) holds a relevant test certificate

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relevant test certificate means a test certificate issued under section 82 of the Act (as it was

before the commencement of section 29 of the Hazardous Substances and New Organisms

Amendment Act 2015) that—

(a) certifies that the person has met the requirements of the Hazardous Substances and New

Organisms (Personnel Qualifications) Regulations 2001 in relation to an approved handler

for the class 9 substance or a similar class 9 substance; and

(b) has not expired or been revoked

relevant unit standard means a unit standard that is relevant to the type of equipment that is

being used to apply the substance, or the purpose for which the substance being applied

relevant strand means a strand of the qualification that is relevant to the context in which the

substance is being applied

sensitive habitat means a habitat that may be adversely affected by the application of a

substance, and includes wetlands, indigenous vegetation habitat areas, or reserves.

47 Application of clauses 48 to 51

(1) Clauses 48 to 51 apply to—

(a) a class 9.1A, 9.2A, 9.3A or 9.4A pesticide, other than a fumigant or vertebrate toxic agent: or

(b) a class 9.1A, 9.2A, 9.3A or 9.4A plant growth regulator.

48 Qualifications needed for handling of substances in preparation for application

(1) This clause applies to a contractor or other person mixing, loading, or otherwise handling a

substance in preparation for the substance to be applied to an application area.

(2) The contractor or person must:

(a) have a current Pilot Chemical Rating under Part 61 of the Civil Aviation Rules; or

(b) be a qualified person or qualified contractor in relation to one or more application

methods listed in column 1 of Table 8 or 9.

49 Qualifications needed for aerial application

A person must not apply the substance aerially (including from an unmanned aerial vehicles),

unless the person has a current Pilot Chemical Rating under Part 61 of the Civil Aviation Rules.

50 Qualifications needed for contractors

(1) A contractor must not apply the substance using an application method listed in column 1 of Table

8, unless the person is a qualified contractor.

(2) However, a contractor other than a qualified contractor may apply the substance if a qualified

contractor for the relevant application method—

(a) has provided guidance to the contractor in respect of the application of the substance at the

place; and

(b) is available at all times to provide assistance, if necessary, to the contractor while the

substance is being applied by the contractor.

(3) A qualified contractor must be able to provide evidence of their qualifications upon request by an


(4) This clause does not apply to the aerial application of the substance.

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Table 8: Qualifications required for a contractor

Column 1

(Application method)

Column 2

Column 3

1. Ground-based application

to land, using mechanical

equipment other than

handheld equipment

Rural Contractors New Zealand’s Registered

Chemical Applicator Accreditation with relevant

strand

or


Applicator Certificate with relevant strand

NA


to land, using motorised

handheld equipment—

(a) with a tank capacity

exceeding 30 litres; or

(b) within 30m of water or a

sensitive habitat


Chemical Applicator Accreditation with relevant

strand

or


Applicator Certificate with relevant strand

or

National Certificate in Agrichemical Application

with relevant strand

NA

GROWSAFE® Standard certificate

or

Unit Standard 21563 Demonstrate knowledge

of the HSNO Act, and NZS 8409:2004 for the

use of agrichemicals

Unit Standard 27216

Prepare to apply, and apply,

agrichemicals using

motorised equipment

Unit Standard 6237 Operate

a handgun sprayer for


Unit Standard 6238 Operate

a knapsack motorised mist

blower for agrichemical

application

3. Application into or onto

water


Chemical Applicator Accreditation with aquatic

strand

or


Applicator Certificate with aquatic strand

NA

4. Any application method

not specified in rows above

GROWSAFE® Standard certificate

or NA

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Column 1


Column 2

Column 3

Unit Standard 21563 Demonstrate knowledge

of the HSNO Act, and NZS 8409:2004 for the


Unit Standard 27215

Prepare to apply, and apply,

agrichemicals using hand

held equipment

51 Qualifications needed for persons other than contractors

(1) A person other than a contractor must not apply the substance using an application method listed

in column 1 of Table 9, unless the person is a qualified person.

(2) However, a person other than a qualified person may apply the substance if a qualified person or

qualified contractor for the relevant application method—

(a) has provided guidance to the person in respect of the application of the substance at the

place; and

(b) is available at all times to provide assistance, if necessary, to the person while the substance

is being applied by the person.



(4) This clause does not apply to the aerial application of the substance.

Table 9: Qualifications required for persons other than a contractor

Column 1


Column 2

Column 3


to land, using mechanical

equipment other than

handheld equipment

GROWSAFE® Standard

certificate

or

NA

Unit Standard 21563

Demonstrate knowledge

of the HSNO Act and

NZS 8409:2004 for the


Unit Standard 23620 Prepare to apply, and apply,

agrichemicals to control pests in crops or pasture


agrichemicals using motorised equipment


agrichemicals to control brush weeds


agrichemicals for total vegetation control

Unit Standard 6236 Operate a boom or band sprayer

for agrichemical application


agrichemicals to crops by band spraying

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Column 1


Column 2

Column 3


to land, using motorised

handheld equipment—

(a) with a tank capacity

exceeding 30 litres; or

(b) within 30m of water or a

sensitive habitat

GROWSAFE® Standard

certificate

or NA

Unit Standard 21563


of the HSNO Act, and




agrichemicals using motorised equipment

Unit Standard 6237 Operate a handgun sprayer for


Unit Standard 6238 Operate a knapsack motorised

mist blower for agrichemical application

3. Application into or onto

water

GROWSAFE®

Introductory certificate

or

Unit Standard 21563


of the HSNO Act, and




agrichemicals to control aquatic weeds

Compare: SR 2001/117 r9, SR [HSW HS Regulations] r13.11.

52 Qualifications required for pesticides used in urban pest management

(1) This clause applies to a class 9.1A, 9.2A, 9.3A or 9.4A pesticide used in urban pest management.

(2) A person must not apply the substance unless the person is a qualified person.

(3) However, a person other than a qualified person may apply the substance if a qualified person—

(a) has provided guidance to the person in respect of the application of the substance at the

place; and

(b) is available at all times to provide assistance, if necessary, to the person while the substance

is being applied by the person.



(5) In this clause qualified person means a person who—

(a) [This is yet to be determined]

(b) holds an approved handler test certificate issued under section 82 of the Act (as it was

before the commencement of section 29 of the Hazardous Substances and New Organisms

Amendment Act 2015) that:

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(i) certifies that the person has met the requirements of the Hazardous Substances and

New Organisms (Personnel Qualifications) Regulations 2001 in relation to an

approved handler for the class 9 substance or a similar class 9 substance; and

(ii) has not expired or been revoked.

Subpart D: Safety data sheets, records, and equipment and for class 9

substances in a workplace

53 Application of subpart

This subpart applies to class 9 substances in a workplace only.

54 Safety data sheets must be obtained and accessible

(1) Regulation 2.8 of the HSW HS Regulations applies for the purposes of this Notice, as if any

reference to a “hazardous substance” in that regulation is replaced with the reference to a class 9

substance.



Compare: SR [HSW HS Regulations] r2.8.

55 Equipment must be appropriate

(1) Regulation 13.7 of the HSW HS Regulations applies for the purposes of this Notice to a class 9

substance, as if class 9 substances were listed in regulation 13.7(1) alongside class 6, 8.1, 8.2 or

8.3 substances.



Compare: SR 2001/117 r 7(1), (2), SR [HSW HS Regulations] r13.7.

56 Records of application of pesticides and plant growth regulators

(1) This clause applies to a class 9.1A, 9.2A, 9.3A or 9.4A pesticide or plant growth regulator.

(2) If 3 kg or more of the substance is applied within 24 hours, in a place where the substance is likely

to enter air or water and leave the application area, a PCBU with management or control of the

substance must ensure that a written record is kept of each application of the substance.

(3) A record required to be kept under this clause must include the following information:

(a) the name and HSNO approval number of the substance:

(b) the date and time of each application or discharge of the substance:

(c) the amount of the substance applied or discharged:

(d) the location where the substance was applied or discharged:

(e) if the substance is applied to or discharged in the air, a description of the wind speed and

direction when the substance was applied or discharged:

(f) the name of the user of the substance and the user’s address:

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(g) other measures taken to ensure there are no significant adverse effects beyond the

boundary of the application area:

(h) in relation to aircraft carrying out aerial application of a substance, electronic data files that

indicate locations of where the substance has been dispensed and aircraft secondary

positional information (for example, geographic information system original shape files,

based on Global Navigation Satellite System data).

(4) A record must be kept for not less than 3 years after the date on which the substance that the

record relates to is applied or discharged.

Compare: SR 2001/117 r 5(2),r 6, SR [HSW HS Regulations] r13.4, 13.5

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