Relationship between the Hazardous Substances and New Organisms Act and the RMA
What does the HSNO Act mean for Regional and District Plans?
The Hazardous Substances and New Organisms (HSNO) Act was enacted in 1996 with the hazardous substances related provisions of the Act coming into force on 2 July 2001.
The majority of hazardous substances fall under the transitional provisions of the Act and are being managed under repealed legislative controls until the management of all substances is transferred to the HSNO control scheme.
Substances introduced into New Zealand after 2nd July 2001 and explosives (including fireworks) already fall under the full control of the HSNO Act.
The period for the transfer of all hazardous substances from control under the transitional provisions to full control under the HSNO control scheme is expected to take five years.
Classes of substances transferred so far are (See also Question 10):
- Explosives - 28 August 2003
- Dangerous Goods - 1 April 2004
- Pesticides - 1 July 2004 (vertebrate poisons and fumigants being transferred on 1 November 2004)
- Priority veterinary medicines - 1 July 2005
Once brought under the HSNO control scheme, the HSNO Act places minimum controls on hazardous substances that are specific to their hazards and that cover their entire lifecycle (for example see explosives). These controls are the same irrespective of location, and constitute minimum performance requirements that have to be met under the Resource Management Act (RMA). Councils may place additional and/or more stringent requirements on the storage, use, disposal or transportation of hazardous substances for the purposes of the RMA (to meet site-specific requirements or location characteristics).
The HSNO Act amended the RMA, through the insertion of a definition of hazardous substances, and also changed RMA s62 to incorporate a requirement for regional policy statements to state the objectives, policies and methods for the control of the use of the land in regard to avoiding or mitigating the effects of the storage, use, disposal or transportation of hazardous substances.
This means that the hazardous substances sections of regional and district plans need to be assessed to determine the following:
- whether they allow for, and are consistent with, the HSNO Act controls; and
- whether they are adequate for the needs of their community.
Any policies, methods, rules or standard conditions placed on resource consents (in regard to storage, use, disposal or transportation) that are inconsistent with HSNO provisions will need to be amended. These policies, rules or resource consent conditions can set more stringent requirements in environmentally sensitive areas (such as in wetlands, water catchments or near schools), but they cannot be less stringent than controls set under the HSNO Act. Refer to section 142 of the HSNO Act for further details (see also Question 6 of the FAQ).
Note: See also the Quality Planning guidance note on land-use planning for hazardous substances.
Will Regional Plans need to be amended; and if so, by when?
The implications for all regional councils is that they may need to review (if they have not already done so) their regional policy statements and plans in light of the HSNO Act and RMA amendments to ensure that they are consistent with that legislation and make it clear that:
Will District Plans need to be amended?
The HSNO Act means that territorial and unitary authorities will need to review (if they have not already done so) their district plans to ensure that they:
Note: A hazardous facility is a site used for the use, storage, transport and disposal of hazardous substances, including vehicles containing hazardous substances.
Are the performance based controls relevant in setting performance standards in the plans and/or assessing effects for a resource consent?
Section 142 of the HSNO Act sets the bottom line for any controls on hazardous substances under the RMA, except where there is an existing resource consent.
HSNO Act controls on hazardous substances do not prevent local authorities setting stricter performance standards to take into account local circumstances, (i.e. such as the presence of wetlands, water catchments, or a school).
However, performance standards for control under the RMA cannot be less strict than those under the HSNO Act. If councils are to draft and apply performance standards which are stricter than HSNO Act bottom lines then they will need to be rigorously evaluated and justified to ensure they are robust enough to withstand challenge but not onerous to the point of being unreasonable.
Performance standards may be useful for use in both regional plans and district plans; and also for assessing effects for a resource consent.
How do HSNO exposure limits relate to resource management effects?
Environmental and tolerable exposure limits control exposure to a hazardous substance as a result of the intentional use of the substance.
Environmental exposure limits (EELs) help protect the environment from the effects of ecotoxic substances.
Tolerable exposure limits (TELs) help protect humans from the effects of toxic substances.
TELs and EELs are single-value levels set for concentrations of hazardous substances in environmental media (water, air, soil, sediment) or onto a surface (such as deposition through spray drift).
TELs and EELs are performance requirements, rather than prescriptive statements of how to use toxic or ecotoxic substances. For example a person using a particular hazardous substance must not use that substance in such a manner that would result in the TEL or EEL for that substance being exceeded outside the target area. The method of use and the avoidance and mitigation measures to be employed are not specified in the TEL or EEL. The advantage of performance-based requirements such as TELs and EELs is that they allow users maximum flexibility. At the same time they provide a measurable limit for compliance and enforcement purposes.
When used as performance standards in plans under RMA they are a starting point. EELs in particular may be modified depending on site-specific matters, including the state of the receiving environment and its intended use. In such cases, a single value serves mainly as a reference or target value.
Regional plans can have rules which identify permitted activities provided those activities meet the minimum performance standards given in the rule, (i.e., specifying an effects-based requirement, rather than a HSNO EEL or TEL).
Those activities which fail to meet permitted activity status will require resource consent. Where needed, conditions on resource consents will need as a minimum to incorporate the EELs and TELs relevant to what is being proposed.
Territorial and unitary authorities can use HSNO controls as a minimum performance standard in their district plans and apply more stringent measures in resource consents where necessary (such as in circumstances where there is a sensitive environment nearby, or there are concerns about the cumulative effects of discharges). Controls which are more stringent than those under HSNO should be thoroughly assessed and carefully justified before being applied.
How will HSNO affect resource consents?
Section 142 of the HSNO Act identifies that while a resource consent cannot impose less strict performance requirements than the HSNO controls, a resource consent may be used in association with more stringent performance standards in plan rules, or impose more stringent limits through consent conditions.
For example, a resource consent may set stricter performance standards than the HSNO controls, such as lower TEL levels and/or greater separation distances to take into account local needs, such as a nearby school, high density community or sensitive receiving environment.
Section 142 of the HSNO Act states that nothing in the HSNO Act (such as TELs and EELs) applies to any resource consent where the consent where the resource consent was granted prior to any relevant hazardous substance regulations coming into force. The conditions of these existing resource consents will need to comply with HSNO after they are reviewed under section 128 of the RMA.
However, the HSNO controls that apply to a substance, for identification, packaging, and emergency management (for example) still apply to any hazardous substances that happen to be on a particular site.
What new information will need to be considered in assessing a resource consent for a hazardous facility?
Where a new resource consent is required for hazardous facilities, (i.e., a site where hazardous substances are stored, used, transported or disposed of), the applicant will need to address the relevant regional and/or district plan provisions and performance standards. An Assessment of Environmental Effects (AEE) including a risk assessment will need to be part of the application.
The AEE is to be prepared in accordance with the Fourth Schedule of the RMA and will identify such matters as the nature and scale of the proposal, potential environmental effects, mitigation measures and emergency/contingency measures.
Applicants should establish if there are any EELs or TELs set as part of the controls for the hazardous substances they are proposing to store, use, transport, make or dispose of on the site. Controls for approved hazardous substances can be found on the ERMA New Zealand website. A list of HSNO approved Codes of Practice and HSNO advisors can also be found on the website.
The consent authority will use the relevant plan provisions to evaluate the consistency of the application with objectives and policies, and performance standards contained within the plan.
The consent authority will also check the application for consistency with any HSNO provisions (e.g. EELs and TELs) that are relevant.
Where a land use consent is required for a hazardous facility, the applicant will need to address general land use zone provisions and performance standards.
General zone provisions will vary between council areas, but will generally require an applicant to consider the objectives, policies, general rules (noise, car parking, etc) and hazardous substance requirements from both HSNO and the district plan covering aspects such as site design, protection of stormwater and sewerage systems, spill containment, underground storage, signage, etc.
Further details may also be required for contingency measures, monitoring and enforcement, and the need for any review clause pursuant to s.128 RMA.
Note: See also the Quality Planning guidance note on land-use planning for hazardous facilities.
What expertise will our council need to meet its obligations in relation to the HSNO Act provisions?
Councils should identify their current expertise and experience in environmental planners, health officers, and officers with dangerous goods or hazardous substances knowledge and experience. Maintaining and expanding that expertise, or at least being able to source that expertise, is critical for councils. Increased knowledge on hazardous substances, the risks they present and the controls that the HSNO Act applies is increasingly important to a range of other roles and responsibilities of local authorities.
Councils will need to ensure that they have the necessary capacity to meet the requirements of the HSNO Act in terms of:
Examples of areas where councils may need to develop or obtain additional capacity include:
Councils do not necessarily need to develop additional capacity in-house. Capacity gaps could be filled by:
What are the responsibilities of local authorities for enforcing the HSNO Act?
Enforcement under the HSNO Act
The term 'enforcement' under the HSNO Act is used to encompass the following activities in relation to hazardous substances:
A major difference with enforcement under the HSNO Act from repealed legislation is that councils are responsible for all substances in a location (noting that 'location' is subject to the exceptions and discretions provided for in Section 97(h) of the HSNO Act).
The Role of ERMA
The role of ERMA is to supervise the inspection of the enforcement regime, provide advice to the Minister for the Environment about whether enforcement services are effective and appropriate, enquire into incidents and emergencies, and report on incidents.
The HSNO Act specifies the agencies with responsibility to ensure the provisions of Act are enforced, with ERMA facilitating the development of memoranda of understanding between agencies to ensure adequate enforcement coverage.
Enforcement Agencies
The HSNO Act assigns enforcement responsibility to a number of enforcement agencies, as listed below:
Enforcement agencies are required to notify ERMA of their intentions for enforcement, compliance activities, and a summary of incidents each year. Enforcement agencies are also requested to provide individual reports of incidents to ERMA.
Further information, including forms can be found on the ERMA website.
Local Authority Enforcement Roles
Territorial authorities have an enforcement role in the following areas:
The first two enforcement roles are mandatory for territorial authorities and unitary authorities under the HSNO Act.
The second two enforcement roles are voluntary, depending on any authority's preparedness and ability to take on such an enforcement role. Adopting additional enforcement responsibilities will be dependent on the interest of a territorial authority in managing hazardous substances in a district, the availability of resources, and the ability to recoup expenditure for enforcement activities.
Regional Councils
Regional councils have no direct role in enforcing the HSNO Act, even though they may contract roles from HSNO enforcement agencies.
Regional councils can play an important support role in enforcing the HSNO Act. Most regional councils in New Zealand undertake pollution prevention and enforcement activities under the RMA, and end up visiting and inspecting a wide range of sites where hazardous substances are present. Regional councils can play a role by reporting breaches of HSNO Act to enforcement agencies.
When do enforcement responsibilities for territorial authorities start?
Responsibility for enforcement of the HSNO Act and regulations started on 2nd July 2001 for new hazardous substances, although during the transitional phase, enforcement has been carried out under the old regime (e.g. dangerous goods licenses) for existing substances.
Explosives (including fireworks) were the first group of substances transferred from previous pieces of legislation into the HSNO regime on 28th August 2003, and are now subject to the enforcement procedures under the Act.
For territorial and unitary authorities, most of the enforcement roles and responsibilities under the Act commenced on 1st April 2004 (once single component dangerous goods and scheduled toxic substances had been transferred). There is a six month 'grace' period within which enforcement agencies are not required to enforce controls provided that an implementation plan exists for compliance with HSNO and sites continues to comply with the requirements of previous legislation. Full compliance with HSNO is required by 1st January 2005 for high-risk areas (for example, sites where hazardous substances require tracking).
From 1 July 2004, pesticides, including insecticides, herbicides, and timber treatment chemicals as well as some licensed animal remedies (ectoparasiticides and endoparasiticides) controls and enforcement were transferred to the HSNO regime. Vertebrate poisons and fumigants were transferred on 1 November 2004.
The remaining licensed animal remedies and notified toxic substances (NOTS) control and enforcement regime is expected to be transferred to the HSNO Act regime by 1 July 2006.
Enforcement of controls on new hazardous substances approved since 2 July 2001 commenced immediately for premises not covered by other enforcement agencies. The number of these substances is small to start with, but will increase over time.
