Health and Safety in Employment (Pressure Equipment, Cranes and Passenger Ropeways) Regulations 1999 (PECPR Regulations) – Resolving Coverage Issues
29. In order to resolve two coverage issues in these regulations it is proposed to amend Schedule 2 of the Health and Safety in Employment (Pressure Equipment, Cranes and Passenger Ropeways) Regulations 1999 (PECPR Regulations), specifically to replace the reference to the Dangerous Goods (Class 2 – gases) Regulations 1980 with a reference to the Hazardous Substances (Compressed Gas) Regulations 2004; and exclude low hazard aerosols and cartridges.
30. Currently, the PECPR Regulations cover compressed gas cylinders in a place of work. This should fall within the jurisdiction of the Hazardous Substances and New Organisms (HSNO) Act as Parliament intended, following the revocation of the Dangerous Goods Regulations in 2006.
31. The control of compressed gas cylinders previously fell under the Dangerous Goods (Class 2 – gases) Regulations 1980, enacted under the Dangerous Goods Act 1974.
32. When enacted in 1999, the PECPR Regulations specifically excluded cylinders that fell under the Dangerous Goods (Class 2 – gases) Regulations. These regulations were revoked in 2006 by the HSNO Act and replaced by the Hazardous Substances (Compressed Gas) Regulations (Compressed Gas Regulations).
33. There was no consequential amendment to expressly update the PECPR Regulations to reflect this replacement. This means that the PECPR Regulations could be seen as covering items that were not intended because:
- the PECPR Regulations do not specifically exclude cylinders which fall under the Compressed Gas Regulations. Compressed gas cylinders are therefore covered under the PECPR Regulation's wide definition, and
- the Compressed Gas Regulations state that most parts of the Compressed Gas Regulations do not apply to anything that falls under the PECPR Regulations.1
34. For the sake of clarity and transparency, this coverage issue should be corrected. Applying the Interpretation Act 1999 means that the reference to the Dangerous Goods (Class 2 – gases) Regulations could be read as the Compressed Gas Regulations that replaced them. This would mean that the coverage issue does not matter in practice as the Interpretation Act would apply. However, the Interpretation Act should not be relied on if the situation is able to be fixed through the regulations themselves.
35. Additionally, when the PECPR Regulations were enacted, they did not specifically exclude low hazard aerosols and cartridges. The Compressed Gas Regulations however, specifically exclude low hazard aerosols and cartridges. As low hazard aerosols and cartridges are caught by the wide definition of the PECPR Regulations, they are unintentionally covered.
36. This means that low hazard items are covered by the requirements of the PECPR Regulations. The Compressed Gas Regulations or the PECPR Regulations should not cover these types of items, due to their minimal hazards. For the sake of clarity this problem should be corrected.
Additional Hazardous Substances and New Organisms Act 1996 Amendment Proposals
37. Ten further proposals to amend the Hazardous Substances and New Organisms (HSNO) Act 1996 have been identified in addition to the three amendments already approved.
Flexibility in delegating decision-making powers for relevant matters.
38. It is proposed to provide greater flexibility for the Environmental Risk Management Authority (ERMA) to delegate its decision-making powers. Currently the HSNO Act limits such delegations to those expressly stated in the Act. However, many decisions of ERMA (e.g. technical decisions of an administrative nature, particularly those required in regulations or deemed regulations such as the "Transfer" Gazette Notices) arguably involve the exercise of decision-making powers. Examples are approvals granted for compliance plans, cylinder designs, separation distances, etc. Significant administrative costs and time delays are involved. These decisions may be made more efficiently if they were able to be delegated, primary to the Chief Executive of ERMA, but also to other appropriate ERMA staff, or to HSNO test certifiers. Further, these proposed delegations cannot be readily covered by a generic statement in the delegations section in the Act, nor is it feasible to list them in a schedule to the delegations section.
39. It is therefore proposed that the specific limitation on the delegation of "decision-making powers" in s19(1)(b) be removed. However, the specific delegations listed in 19(2) would be retained in their current form and the additional delegations proposed below would be included. In this way, the significant delegations would remain in the form expressly allowed in the Act but lesser delegations of a technical/administrative nature would be enabled at the discretion of ERMA. Such amendment will enable greater efficiencies for both ERMA and industry.
Rapid assessment of applications:
- to import or develop low-risk non-GMO (non-genetically modified organisms) in containment;
- to field-test low-risk non-GMOs in containment, but to give ERMA the discretion to publicly notify applications to field-test other non-GMOs in containment; and
- for the conditional release of low-risk non-GMOs.
40. This proposal will improve consistency in how applications are processed:
- by enabling applications to import, develop, or field-test non-GMOs in containment to be treated consistently with each other and with applications to import or develop low-risk GMO in containment (in terms of rapid assessment of low risk organisms and the discretionary notification of other applications); and
- by enabling applications for conditional release of low-risk non-GMOs to be treated consistently with applications for full release of low-risk non-GMOs.
The proposal will reduce application costs and shorten application times for industry, where pre-determined conditions set in the Act or in regulations are met.
41. Some distinction will remain between non-GMO and GMO field tests. Rapid assessment is not available for any GMO field test applications and all GMO field-test applications must be publicly notified. The proposed enabling of discretionary notification of other higher risk non-GMO field-test applications (not possible at present) will be on the same statutory basis as other discretionary notifications i.e. that they are likely to be significant public interest. Enabling such discretionary notification will tighten the requirements for higher risk non-GMO field tests although it will still be less stringent as requirements for GMO field tests.
42. Rapid assessment is possible for applications for the full release (without any controls) of a non-GMO but not for conditional release with control. The proposal will allow rapid assessment of these conditional release applications, where the statutory test for rapid assessment of a full release is met by the imposition of controls.
Discretion to notify and ability to delegate hazardous substance release applications
43. Experience has shown that many hazardous substance release applications under s28 of the HSNO Act are routine and attract very few public submissions. However, public notification is mandatory and related submission processes result in delay and unnecessary cost to business. The regulatory cost is disproportionate to the risks posed or the benefits of public participation.
44. To ensure a more responsive regulatory approach it is proposed that ERMA be given (a) the discretion to publicly notify release applications that do not otherwise qualify for rapid assessment under s28A of the HSNO Act, and (b) the ability to delegate non-notified applications to its Chief Executive. Notification would still occur when the current statutory test for notification is met (i.e when ERMA considers that there is likely to be significant public interest in the application).
Flexibility to enable test certifiers to issue a provisional location test certificate, subject to specified conditions
45. Where locations are not in full compliance with the relevant HSNO requirements, a location test certificate cannot be issued under any circumstances. This may result in substantial additional expenses to business, even when the non-compliance may be considered minor or technical, including operations being suspended while the non-compliances are resolved.
46. It is proposed that test certifiers have the discretion to issue a location test certificate on a "provisional" (or conditional) basis where they consider the non-compliance to be "minor or technical". The provisional certificate would state the outstanding matters, the time within which they would need to be rectified, and the manner of evidence required to demonstrate rectification. A normal location test certificate would then be issued once the test certifier is satisfied that the matters are no longer outstanding. This would allow operations to continue lawfully while action is taken to ensure full compliance.
Official access to the test certificate register for emergency response planning purposes
47. The HSNO Act requires ERMA to keep and maintain a register of test certificates issued by test certifiers under the Act. Access to the register is restricted by the Act to certain purposes. While s82A(4) expressly allows searches of the database where necessary to prevent or lessen a serious and imminent threat to public or individual health and safety, searches cannot be readily undertaken by the Fire Service (not an enforcement agency under the Act), or by an HSNO enforcement agency, for emergency and response planning purposes.
48. It is proposed that the purposes for which an approved person may search the register be extended to include emergency and response planning purposes. The Fire Service would be able to search the register for that purpose, under delegation from an approved person, as would HSNO enforcement agencies, including those local authorities that have enforcement roles as per s97. This would improve the ability to achieve the objective of preventing or lessening serious threats to public health and safety.
Linking reassessment and group standard amendments, including a mechanism for minor or technical amendments to group standards
49. Some hazardous substances are regulated by both specific individual approvals and generic group standards. However, specific approvals and groups standards are amended by separate and different processes. These differences create additional costs, potential confusion and inconsistencies for affected substances. Furthermore, in s67A, the Act allows ERMA to amend a specific approval on its own motion if it considers that the alteration is minor in effect or corrects a minor or technical error. There is no equivalent for group standards.
50. To address these issues, it is proposed to (a) enable joint consideration of common changes to a specific approval and a group standard, adapting the group standard process to the approval reassessment process, as appropriate, and (b) provide for a s67A equivalent for minor and technical amendments to group standards.
Empower Biosecurity New Zealand to recover costs of conditional release compliance and enforcement under the Biosecurity Act
51. The Ministry of Agriculture and Forestry (MAF) is the enforcement agency for new organisms under the HSNO Act (s97A). MAF can recover the costs associated with HSNO containment approvals under the Biosecurity Act, because the costs primarily relate to functions empowered by the Biosecurity Act. However, due to a technicality, costs associated with controls on newer types of HSNO approvals outside containment (conditional release, release of qualifying organisms, and for releases in special emergencies) cannot be recovered under the Biosecurity Act without that being empowered under the HSNO Act. Filling this legislative gap will provide the right business incentives to develop an efficient monitoring system, in that cost-recovery encourages the holders of approvals for various releases of new organisms with controls to: change behaviour or the risks that give rise to the need for monitoring; assess whether the benefits of monitoring outweigh the costs; influence whether the system is being provided in the most efficient manner.
52. To improve regulatory practice it is proposed to amend s97A of the HSNO Act to enable MAF to use the cost recovery provisions of the Biosecurity Act, including the cost options (s135), levies (s137) and regulations (s165(1)(s)). The existing Biosecurity (Costs) Regulations 2006, with any necessary amendments, could then be used for cost recovery.
Remove additional duplicative reporting requirements
53. The HSNO Act specifies additional matters that ERMA must include its statement of intent (SOI) and annual report. Experience has shown that two of these requirements involve significant repetition of information already provided elsewhere in the SOI or in ERMA's annual monitoring report, which is a requirement of the annual Output Agreement with the Minister, and is publicly available.
54. These requirements add to unnecessary compliance costs on regulatory agencies. It is proposed to remove the two additional reporting requirements in sections 147(3) and 148(b) of the HSNO Act, which relate to the effectiveness of the Act. This removal will improve the administrative efficiency of the SOI and reporting processes, by reducing duplication, without adversely impacting on their quality.
Extend ERMA's power to revoke test certificates, and the grounds for revocation
55. Test certificates are issued by test certifiers, who in turn are approved by the Authority. The Authority's power of revocation exists as a back-up, enabling it to act where, for example, the test certifier is no longer in business, and/or the issue of non-compliance has come to light through an enforcement officer.
56. ERMA is currently empowered to revoke test certificates issued to approved fillers and approved handlers where there has been fraud, negligence, or incompetence. However the Authority cannot revoke other types of test certificates – primarily location test certificates and stationary container test certificates or revoke certificates when the holder of test certificate no longer meets the criteria for which the certificate was met.
57. It is proposed to extend ERMA's power to revoke test certificates to all test certificates and extend the grounds for revocation under the HSNO Act to include where the criteria for which the certificate was issued are no longer met by the holder of the test certificate.
Improve consistency between HSNO Act and Biosecurity Act offences, and HSNO Act and Health and Safety in Employment (HSE) Act offences
58. The Ministry of Agriculture and Forestry is the enforcement agency for new organisms and the Department of Labour is the primary enforcement agency for hazardous substances. While considerable official effort has gone into aligning the enforcement provisions of the HSNO and Biosecurity Acts (for new organisms) and HSNO and Health and Safety in Employment (HSE) Acts (for hazardous substances, some inconsistencies remain, namely in the statutory timeframes for laying information (charges) for offences under the respective Acts.
59. It is proposed to amend the HSNO Act:
- For offences involving hazardous substances provisions, to change the current time to lay charges from 120 working days to 6 months (from when the offence became known), and allow the District Court to extend the time to lay charges – consistent with the HSE Act
- For offences involving new organisms, to change the time to lay charges from 120 working days from when the offence became known to 2 years from the time "when the matter of the information arose" – consistent with the Biosecurity Act.
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