The renowned Auckland based HSNO legal expert, TCC(NZ) Ltd makes it very clear that clients must comply with the regulations laid down under the HSNO Act in Toto to avoid penalties and imprisonments. Some sections under this enactment are indeed quite harsh, sparing none. However, the compliance guru takes on itself the task of explaining how best to comply with the law of the land, while advising clients to follow the issues outlined below carefully.
What it is all about?
In the recent past, several emergency incidents involving highly hazardous chemicals that resulted in death and fatal injury called for stronger control over hazardous substances all over the country. This prompted the authorities to create and enforce laws to regulate the use, storage, transport and allied activities related to hazardous substnces. As a result, the Hazardous Substances and New Organisms Act came into force in New Zealand and people were asked to comply with it fully.
What do I need to do to comply with the Act?
If you already comply with legal requirements under the Explosives, Dangerous Goods, Toxic Substances, and / or Pesticides Act for substances you already have or use (i.e., existing substances), these requirements for compliance will remain in place until substances are transferred to HSNO regulations.
Any new substances (single substances or mixtures) require ERMA approval before these can be imported, manufactured or used.
What are the offences under the Act for which I may be penalized?
It is considered to be an offence under HSNO Act, to:
- Manufacture, import, possess or dispose of any hazardous substance in contravention of the HSNO Act.
- Fail to comply with any controls, test certificates or compliance orders
- Impersonate an enforcement officer
- Willfully obstruct an officer performing his/her duty
- Knowingly inform a person of a ‘false’ emergency
- Knowingly mislabel packages.
[Note: Regulatory authorities don’t have to prove intention, only that you failed to comply.]
What are my legal responsibilities under the Act?
Where any offence is committed by an employee, that offence shall be treated as committed by the employer as well as the employee, whether or not it was done with the employer’s knowledge or approval. So potentially both can be held liable. In addition, the Court can order a person to mitigate or remedy any adverse effects on people or the environment for that offence.
What penalties or punishments are applicable under the Act?
For breach of prime responsibilities, such as manufacturing a substance that has not been approved and/or otherwise disregards the Act:
- Imprisonment for up to 3 months
- Fines of up to $500,000, as also
- Fines of up to $50,000 per day, for continued offences
For breach of specific responsibilities, such as not possessing Test Certificates:
- Fines of up to $50,000, as also
- Fines of up to $5000 per day for continued offence
How do I know whether a substance is ‘Hazardous’ as defined under the Act?
The Minimum Degrees of Hazard regulation sets out thresholds for each hazardous property. Any one threshold may trigger HSNO classification, making it subject to HSNO regulations and controls.
It is important to ensure that each substance is thoroughly reviewed, as many products will henceforth
be subjected to HSNO requirements that in the past largely remained uncontrolled. In particular, HSNO not only addresses existing Dangerous Goods and Toxic Substances.
It also includes more subtle properties as skin and eye irritation, cancer-causing properties, substances which may impact reproductive function or target organs, and environmental impact.
A manufacturer’s Safety Data Sheet (SDS) is usually the best source of information about the hazardous properties of a substance.
How can I get organized about HSNO Compliance?
To ensure HSNO compliance, it may help to start with these steps:
A: Create a register of all substances (chemicals) used on your site, along CAS numbers, DG classifications, and any information about their hazardous properties. Indicate package sizes and typical / maximum quantity held. Use the Minimum Degrees of Hazard Regulations as a guide to relevant information.
B: Identify which are single substances – ie, not mixtures. All single substances that have existing Dangerous Goods classifications under previous legislation have already been transferred to the HSNO Act. Their assigned classifications and controls may be obtained from the ERMA website to download at no cost.
C: Identify substances that may require a Location Test Certificate (replacing site Dangerous Goods license), Approved Handler (verification of competency of personnel handling or using a substance), or Tracking (documented transfer of possession of a substance to approved parties) – refer to the ERMA website for these lists. [Note: quantity of a substance and container size is relevant in determining requirements for Location Test Certificate and Approved Handler.]
D: All other substances will remain as NOTS (Notification of Toxic Substances) under transfer until ERMA has reviewed classified and assigned controls.
These substances will continue to be controlled by pre-HSNO regulatory requirements.
TCC(NZ) is ever ready to help clients comply with the regulations stipulated under the HSNO Act enforced in the land of the Kiwis. Any inquiry on the topic will be effectively responded by the HSNO expert at the earliest.