Hazardous Substances and New Organisms (Hazardous Substances Assessments) Amendment Bill

Members, we are in committee on the Hazardous Substances and New Organisms (Hazardous Substances Assessments) Amendment Bill. We come now to—

Tim van de Molen: Fisheries.

CHAIRPERSON (Hon Jacqui Dean): A member is trying to tell me something. Would you like to take a point of order?

I raise a point of order, Madam Chair. I believe we are due to consider the Fisheries Amendment Bill in the first instance.

Well, it’s interesting you should say that. Thank you. We’ve been having that discussion, so let’s just clarify.

Well, I’ll take the first call on the Hazardous Substances and New Organisms (Hazardous Substances Assessments) Amendment Bill. This bill updates the processes under the Hazardous Substances and New Organisms Act—the HSNO Act, as it’s called—to allow the Environmental Protection Authority (EPA) to use information that comes from reputable overseas regulators, rather than requiring all of that evidence to be produced in a bespoke basis for the New Zealand regulator.

It’s a very sensible bill, and it will have better environmental outcomes in New Zealand, because the problem that we have with our current system is that because the process requires reconsideration based on a full volume of evidence, quite a few of the owners of the rights to chemicals don’t bring them to New Zealand. As a consequence, we’re still using chemicals in New Zealand that could be replaced with better chemicals that are more effective or have less environmental harm, but they don’t get registered here. One of the impediments to that registration is the cost of the process.

The other effect of this is that it constrains the ability of the EPA to conduct reassessments of chemicals that are already in the system based on information that is from overseas. So what this legislation does, in this globalised world, is allow the EPA to take notice of the information that comes from, for example, a European regulator who may have looked at the same chemical in great detail.

The question is that Part 1 stand part.

Thank you, Madam Chair. Look, this is a piece of, frankly, quite pragmatic legislation, and His Majesty’s loyal Opposition is supporting it. But there are a couple of questions I have for the Minister in the chair, and notwithstanding the practical aspects of this piece of legislation, I’m interested to know just how the Minister expects the Environmental Protection Authority (EPA) to distinguish between what is a credible alternative jurisdiction and which aspects of information and data they will take into account and which they might reject.

The whole purpose of this piece of legislation is to, frankly, stop us having to reinvent the wheel in a uniquely Kiwi way with every hazardous substance, particularly if there is another jurisdiction of a kindred like to our own with a robust process and a credible, reliable analysis regime, where we can use that data and that information. So my question really relates to how the Minister thinks that the EPA will actually come to a conclusion about which jurisdictional interests will be acceptable and which won’t.

Thank you for that question. This matter is addressed at new section 76E, in clause 11 of the bill, which is entitled “Authority may recognise overseas bodies as international regulators”, and then it sets out at subsections (1) to (4) the process that the authority has to go through before it can recognise one or more overseas bodies as international regulators for the purposes of the relevant sections of the Act.

The authority, before it does by notice in the Gazette give that notice of recognition, has to publicly notify its intention to issue the notice, give interested persons a reasonable time to make submissions on the proposal, and consult representative groups within the hazardous substances industry, Government departments, WorkSafe, and Crown entities whom the authority considers appropriate in each case. So it has to go through that process before it can issue its Gazette notice, and then there’s a set of prohibitions that are listed at new section 76E(3) where the authority must not recognise an overseas body unless the authority has considered whether the body operates in a manner comparable to the authority in regulating hazardous substances, the legislative regime in that country is comparable to ours, and the information from that body is readily accessible by the authority.

The amendment that was added at the Environment Committee was the addition of subsection (4), which relates to amendments that can be made by the authority to the notice. Some of those are minor and technical, and others have to go through a process.

Thank you to the Minister for that helpful intervention. I want to just tease it out a little bit more in terms of the definition and element of what is reasonable. Subsection (4) says that applications with “significant cultural, economic, environmental, ethical, health, or international effects; or … significant effects in an area in which the Authority lacks sufficient knowledge or expertise.” This is subsection (5): “The Authority must—(a) do everything reasonably practicable on its part to consult all persons who, in its opinion, are likely to be directly affected by the reassessment; and (b) give those persons a reasonable opportunity to make submissions and comments to the Authority on the reassessment;”.

So it’s this test of reasonableness, because I can imagine that there will be instances where, for instance, the Minister will know, as I do, that we have some very active and participatory environmental NGOs who may have a completely different view as to what is reasonable in these situations, and that might differ significantly from the Environmental Protection Authority’s view as to reasonableness. Does the Minister expect that this test will be judicially tested, or is he happy that previous case law about what is reasonable and not reasonable will apply?

Could I just inquire of the member what clause of the bill he is referring to?

It’s in new section 53AA in clause 7, halfway down page 5 of the bill as reported back from the select committee, particularly subsections (4), (3), and (5).

Thank you, the Hon Mr Simpson. That clause earlier, new section 53AA in clause 7, sets out that in addition to public consultation, departments of the Crown that are likely to have an interest in the application should be consulted. Where it’s an application for the approval of a new organism there is also an obligation to consult with the Department of Conservation, and if the application is for approval of a hazardous substance, WorkSafe must be involved.

One of the more difficult issues that the Environmental Protection Authority (EPA) has dealt with in recent years has been the approval of methyl bromide for its continued use in New Zealand. New Zealand, we now know, is one of the largest users of methyl bromide in the world, and if used unsafely it can cause serious health effects for the people close to it. I know that in that case a lot of the work on both the safe application of it and alternatives to that chemical, the role of WorkSafe has probably been in addition to the EPA’s work themselves. I would have thought that WorkSafe has been the lead agency to provide good input to the EPA as to what is a proper outcome in respect of public notification. In that case, there were concerns about its use around ports, because it’s used as a fumigant before the export of logs to kill the bugs that might be in the bark, in the main. And some of those activities are on the port within close proximity to cities. Mr Muller will be aware of this because this is the case in point in Tauranga. I’m aware that in that case, obviously, those that were consulted were those people who were affected, or potentially affected.

I would expect that in the future, in a similarly difficult application, the EPA decision as to reasonableness would be a decision that they took with care, and that they would be wanting to make sure that people who had a legitimate interest in what are contentious issues had an opportunity to make submissions to them. If they did that in a way that excluded a significant portion of the population who might be adversely affected by the use of that chemical, then I suppose it is possible that those people could take that issue to the court and allege that there was a breach of the statutory duty in terms of their assessment of what is reasonable. In my time as Minister of this organisation, that’s never happened, because I think the EPA does get it right.

Thank you, Madam Chair. It is a pleasure to take part in the Hazardous Substances and New Organisms (Hazardous Substances Assessments) Amendment Bill—it’s quite a mouthful, actually. I thank the Minister David Parker for his full and frank responses.

My question is around methyl bromide, and it’s actually used in the Port of Picton as well—Shakespeare Bay, to be precise. You mentioned, Minister, how important a part WorkSafe plays in chemicals such as methyl bromide. A lot of logs that are exported are actually treated with methyl bromide on the journey away—the logs are loaded and they’re actually treated with methyl bromide at sea. Is that restricted if it occurs within New Zealand waters? How does that work? Is methyl bromide allowed to be carried but not used, and then used at sea? If so, where at sea is it that the laws of the land end, as far as that’s concerned, and WorkSafe’s jurisdiction ends? Is that the 12-mile limit? Is it the exclusive economic zone, or where does that happen?

I’m aware that methyl bromide is used both in the hold and portside, under tarpaulins. There are different rules that apply to each which reflect the consequences of each methodology. Obviously, if a hold has been pumped full of methyl bromide in concentrations that can kill all the bugs, there would be a danger to people who went into the hold thereafter without it being cleared. I will check with officials, but I’d presume that the jurisdiction of WorkSafe would end at the 12-mile limit, but I will see if officials are aware of that. It’s not directly on point to this bill, so if I can’t get an answer from officials, I apologise and I’m happy to get to the member later.

Indeed, that’s been confirmed by officials: 12 nautical miles.

Thank you, Madam Chair, and thank you, Minister, for that answer. While I accept it’s not particularly part of this, it does relate to the—we have these substances that are not desirable to be used but we do use them and we need to know how they’re controlled. My question was, really, around how they’re handled in New Zealand.

So if, for example, we ban methyl bromide and the Environmental Protection Agency say that that’s no longer to be used under this Act, then those logs that are going to be exported, if they’re going to be treated on the sea—not in New Zealand; outside the 12-mile limit—are they able to be carried on board so that those exports can continue but they’re just merely used and treated outside of our 12-mile limit?

Thank you, Madam Chair. I expect it is legal for vessels to carry them if they carry them safely. We wouldn’t assert the ability to control what happens on the high seas. But I’m not sure whether that practice does occur.

I do know that methyl bromide has been recently reassessed. It took a number of years. There was an assessment some years ago that proposed phasing it down to very, very low concentrations of residue, which proved impossible to achieve. There had been a hope that in the meantime there would be substitute chemicals or processes developed. Some substitute processes have been developed for some markets. Some markets are happy for the logs to be stripped of their bark and then just, effectively, steam treated, I think—or it might even just be the removal of the bark. But some markets, I think, including India, refuse to recognise that as sufficient control of the risk that a pest could be carried with the log, and so they still require fumigation.

As a consequence of the reassessment, there are strict controls covering both in-hold and on-the-wharf applications of methyl bromide. It was quite a long process because at one stage there were some wind assessments that were done that indicated that on a certain wind there could be problems caused in the Tauranga area, which the Environmental Protection Agency had to work through.

Thank you, Madam Chair. Under the principal Act, it’s clear that hazardous substances that are approved by the Environmental Protection Authority (EPA) are approved in perpetuity. However, there can be a reassessment option and programme initiated, and at select committee there was a proposal—which has been, I think, picked up in clause 4—to create a new section 20C relating to reassessment of work plans. Now, at select committee, the committee understood that the intent of the bill was for reassessment work plans only to include reassessments that were initiated by the chief executive and that they would not be able to be initiated on an applicant basis for reassessments.

So that then seems to me—on the face of it, Minister—to provide the chief executive with very significant power to manage and intercede on reassessments at the personal initiative of the chief executive. And again, just referring to a number of very keen and enthusiastic environmental NGOs who may want to have reassessments done, it seems that this legislation will simply not provide for any mechanism for an initiated reassessment option to occur, and that the only trigger for reassessment lies with the chief executive. I’m keen to know from the Minister why he thinks that power should be limited to the chief executive. Does he consider that there could ever be situations where an applicant-initiated reassessment request could be considered or triggered that was contrary to the views and opinions of the chief executive of the day? So I’d be interested in the Minister’s views on that, please.

Thank you, Madam Chair. The chief executive of the authority—and I should go back a step. The Environmental Protection Authority (EPA) takes these decisions independently of the Government. They’re not ministerial decisions, and neither should they be, because it’s a regulator that’s trying to get the best safety outcome for New Zealand as well as within the bounds of safety; good economic outcomes where chemicals are needed in New Zealand’s economy. The Act provides that there are criteria set out at section 62(a) to (d) of the Act; I haven’t got those in front of me, but I can get them for the member if the member is interested.

But in addition to that, the work plan must list the substances and give an indicative time frame for when the work will start. But then the authority comes into play rather than the chief executive, which is provided for in new section 20C(4), in clause 4 of the bill. It says: “The Authority must ensure that the work plan (a) gives the highest priority to … (i) hazardous substances that are prohibited for use under section 64: (ii) hazardous substances that are subject to restriction under section 64A;”. So in the end the authority has control of the list and they’ve got duties to prioritise the things that are most important to prioritise.

Thank you, Madam Chair. Minister, thank you for bringing this bill, the Hazardous Substances and New Organisms (Hazardous Substances Assessments) Amendment Bill, to the House. ACT New Zealand supports this bill. Anything that reduces the regulatory burden on New Zealand consumers, taxpayers, and businesses is welcomed by ACT. So thank you, Minister, and thank you to the officials for putting in all that effort.

I just want to ask you about new section 20C—in clause 4—“Reassessments work plan”. It’s quite likely that there are a range of hazardous substances for which an evaluation by technical experts would point to the need to either reduce, limit, or stop their use, as better products are available. That’s what we understand the reassessments work plan will be designed to do.

I just want to ask the Minister—and he might need to consult with officials—has there been an appropriation in a Budget to reform or improve the reassessments process? Will the existing resources, staff, and IT systems that the Environmental Protection Agency currently uses be able to be used? And in terms of the reassessments work plan, it requires the plan to be put together within 12 months, I understand, of the legislation passing. Given it’s taken quite a long time for the legislation to move through the House, is it likely that we’ll know the time frame or schedule for reassessment to proceed? Is this something likely to happen in 2023, or is it more likely to be 2024 before the reassessments process starts? And, if so, are there any interim measures that you think should need to be taken?

In respect of the Budget point, no, there hasn’t been additional budget given to the Environmental Protection Agency (EPA). The long-term funding of the EPA is actually being reviewed this year, which is not to say that it will be substantially increased, but it could be.

In respect of the most important feature of this bill, the very fact of the passage of this bill enables the EPA to do more with the budget that it has, because they can now adopt information from overseas regulators that have been approved through the process that I covered in response to an earlier question.

In respect of the date by which the work plan will be set, I’ll ask officials that now, but I don’t know it to be earlier than the 12 months.

Thank you, Madam Chair. Going back to the reassessments, the Minister will be aware that many of the hazardous substances that would come up for reassessment are seasonal in nature. So a crop where a family group of chemicals is used is totally reliant on the season. If a chemical comes up for reassessment during that period and they decide to halt the use of it during that reassessment, what processes does that go through so that we have assurance when , for example, kiwifruit or the wine industry or wheat harvest, or whatever it is is reaching a critical stage that requires a chemical to deal with a certain disease threat and then suddenly it’s halted and we can’t use it, and when there’s no time whatsoever to get alternative chemistry to deal with that particular challenge? How do we know that that has been taken into account before that halt is being called? So I guess what I’m saying is: how high is the bar for that halt of use?

Those are issues that are determined by the Environmental Protection Authority (EPA) on the facts that are before them. I suppose it would depend a bit on the practicality of alternatives to the danger, relatively, that is posed by the incumbent, if you like, and their assessment of risk. I know that in the case of methyl bromide, again, the prior reassessment, because it’s now been reassessed twice, gave a very long lead-in period. But those, in the end, are for the discretion of the EPA to take in accordance with the advice that they get from the expert panels that provide them technical advice.

In respect of the earlier question from Simon Court, the department’s confident that they will do it within 12 months. They don’t have a specific date earlier than 12 months but they confirm that it won’t be this year, it will be next year.

Well just further to that, Minister, is there no reasonableness test or anything other than just the judgment of the person concerned, rather than something prescribed to meet a certain standard of reasonableness?

I—

CHAIRPERSON (Hon Jacqui Dean): Hon David Parker.

Sorry, Madam Chair, I should’ve called. I don’t understand that they’re to be stated in that way. There are various factors that have to be taken into account by the EPA. Their primary focus is, obviously, safety but they also have regard to the societal benefit of the chemicals that are used. They balance all of those issues in a way that is wise. So I haven’t heard complaints in my time as Minister as to how they have abused that process. I’ve never had a complaint in that regard, and I’m not expecting any.

Part 1 agreed to.

Part 2 Consequential and other amendments, and the Schedule