A number of pieces of legislation manage the environmental effects associated with the agricultural aviation industry. The RMA and HSNO Act are most relevant to managing substances that the agricultural aviation industry discharges. The HSNO Act manages specific hazardous substances and new organisms across their life cycle, while the RMA manages environmental effects associated with the industry’s activities (a wider range of substances as well as land use matters such as noise). The Agricultural Compounds and Veterinary Medicines (AVCM) Act 1997 and Health and Safety in Employment (HSE) Act 1992 also play a role in managing the substances that the industry uses.
This section outlines the relevance of the legislation to the industry and summarises the interactions between the legislation (focussing on the implications for planning under the RMA).
Resource Management Act 1991 (RMA)
Both regional councils and territorial authorities have responsibilities for managing the effects of agricultural aviation activities under the RMA.
Section 30 of the RMA sets out the functions of regional councils which include the control of discharges of contaminants into or onto land, to air or into water. It includes the control of the use of land for the purpose of maintaining and enhancing the quality of water which may, in the context of agricultural aviation, include controlling the loading of contaminants and sites where contaminants are mixed.
Regional council responsibilities are further addressed by section 15 of the RMA which sets out requirements for discharges of contaminants to the environment. In this context, discharges include agrichemicals, fertilisers and VTAs discharged to air, onto or into land where it may enter water, or directly into water. These substances fall within the definition of contaminants under the RMA. Resource consent is required for the discharge of contaminants unless it is specifically permitted by a rule in a regional plan. Regional plans often include permitted activity rules to enable discharges of these substances, subject to conditions and/or performance standards.
Under section 31 of the RMA, territorial authorities have primary responsibility for managing the effects of land use activities, including impacts on amenity values arising from those activities. In the context of the agricultural aviation industry, the most common amenity issue or concern relates to noise from aircraft. However, it is important to note that under the RMA, territorial authorities do not control aircraft noise while the aircraft is in flight, as this is managed under the Civil Aviation Act and related rules. Therefore territorial authorities are limited to managing aircraft noise associated with airports, airstrips and landing areas. Some territorial authorities include rules in their district plans to manage the effects of land use associated with rural aviation, including noise associated with airstrips and landing areas.
Regional councils and territorial authorities both have responsibilities for preventing or mitigating the adverse effects of the storage, use, disposal or transportation of hazardous substances, where it is considered that the HSNO Act does not adequately address resource management issues within the region or district. Territorial authorities have the primary responsibility for managing these substances unless the regional policy statement specifies otherwise (s62(1) (i) of the RMA). It is therefore important that controls relating to hazardous substances are aligned across regional and district functions and they do not duplicate controls under the HSNO Act. This matter is elaborated on in the ‘implications for planning under the RMA’ section below.
Hazardous Substances and New Organisms Act 1996 (HSNO)
The HSNO Act is administered by the Environmental Protection Authority (EPA). The purpose of the 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”. It is New Zealand’s primary legislation for managing hazardous substances and new organisms across their life cycle (from import/manufacture, transport, storage, use and disposal).
The HSNO Act defines hazardous substance as any substance with one or more of the following intrinsic properties – explosiveness, flammability, capacity to oxidise, corrosiveness, toxicity (including chronic toxicity), and ecotoxicity, which on contact with air or water (other than air or water where the temperature or pressure has been artificially increased or decreased) generates a substance with any one or more of the properties specified above.
All hazardous substances, including fertilisers, pesticides[1] and VTAs, must be approved under the HSNO Act before they can be imported or manufactured in New Zealand. Individual approvals must be sought from the EPA for agrichemicals and VTAs. Under the HSNO regulations there is provision for group standard approvals for hazardous substances of a similar nature, type or use. Group standards set out conditions that enable a group of hazardous substances to be managed safely by applying a nationally consistent set of controls that must be followed. Most domestic and workplace chemicals (except for pesticides, veterinary medicines, timber treatment chemicals and VTAs) are approved under group standards. There are specific group standards for fertilisers which establish nationally consistent controls that must be followed when using these fertilisers. Lists of group standards are available on the EPA website.
The individual approval process is referred to as a HSNO assessment, which has two key steps:
- Hazard classifications are assigned to a hazardous substance which is based on Hazardous Substances (Minimum Degrees of Hazard) Regulations 2001 and Hazardous Substances (Classification) Regulations 2001.
- Controls are placed on the substance according to its hazard classification and any additional risks the substance may pose. These controls may apply to the use, storage, transportation, equipment requirements, labelling, and disposal of the hazardous substance. Any person using a hazardous substance must comply with these controls and to not do so is an offence under the HSNO Act.
For more information on HSNO classes, controls and regulations see Technical Information relating to the Agricultural Aviation Industry on the NZAAA website and the Hazardous Substances section on the EPA website.
Changes to the regulation of hazardous substances
In 2016 there will be a change to how hazardous substances are regulated. The new workplace health and safety regime will come into force during 2015-2016 with the Health and Safety at Work (HSW) Act. As part of these changes, there will be new HSW regulations describing how hazardous substances must be addressed in workplaces (for example how they must be handled and stored).
This change will mean that:
- The EPA will no longer set rules (controls) on the workplace use of hazardous substances, these will be set in regulations under the HSW Act.
- The EPA will still set the controls under the HSNO Act for labelling, packaging, safety data sheets, consumer product content (i.e. allowable levels) and disposal regardless of where the hazardous substance is to be used. The EPA will also set environmental and non-workplace public health controls.
- In the workplace, WorkSafe New Zealand will enforce the controls under the HSW Act and environmental and disposal controls set under the HSNO Act.
The EPA is also proposing to develop a new classification system based on the United Nations Globally Harmonised System of Classification and Labelling of Chemicals. This will replace the regulations referenced above.
More information and updates on the new workplace health and safety regime are available on the Ministry of Business Innovation and Employment and WorkSafe New Zealand websites.
Agricultural Compounds and Veterinary Medicines Act 1997 (ACVM)
The ACVM Act is administered by the Ministry for Primary Industries (MPI). Under the ACVM Act, MPI manages agricultural compounds in relation to risks that these compounds may pose to trade in primary produce, animal welfare, agricultural security and public health. The ACVM Act also ensures residues comply with domestic residue standards and consumer information is provided on agricultural compounds.
Products are required to be registered under the ACVM Act unless they are exempt from registration under Regulations. Registration requires the manufacturer to provide data on efficacy, residues, product chemistry and safety on their product. This data is assessed in relation to the risks managed under the ACVM Act and appropriate controls or conditions are placed on the registered product. Those products exempt from registration under Regulations have to comply with conditions outlined in the Regulations. Pesticides and VTAs require registration, while fertilisers are exempt from registration.
Product labels are approved as part of the registration process and establish the framework within which a substance can be used. The label contains the critical information for the end-user to use the product effectively and safely. The focus of the label relates mainly to HSNO and ACVM Acts; it does not contain all the legal requirements that are covered under other legislation such as the RMA.
Health and Safety in Employment Act 1992 (HSE)
The purpose of the HSE Act is to promote the prevention of harm to people at work, and others in the vicinity of places of work. The HSE Act manages the exposure of people to identified hazards to reduce risk. In the aviation sector the Civil Aviation Authority administers the HSE Act, as well as the Civil Aviation Act 1990 and related rules. CAA is also a delegated enforcement agency for HSNO.
As noted in the ‘changes to the regulation of hazardous substances’ section, a new workplace health and safety regime will come into force during 2015-2016 with the HSW Act and associated regulations. The Ministry of Business Innovation and Employment and WorkSafe New Zealand websites should be referred to for up-to-date information on these changes.
Interaction between legislative requirements
It is important to understand both the primary role of, and interaction between, the various pieces of legislation that regulate the agricultural aviation industry to ensure that controls are aligned and duplication is avoided. The areas of commonality in the legislation outlined above relate to the management of substances used by the industry.
The roles of the key legislation in relation to the use of substances can be summarised as:
- HSNO Act - addresses risks to the environment, people, and communities by conducting thorough risk, cost and benefit assessment on specific hazardous substances so that the overall benefits are balanced against potential risks. Through this assessment controls are applied to the hazardous substance to prevent or manage adverse effects of it.
- RMA - identifies and manages potential adverse effects on the environment associated with the discharge of the substances (contaminants) through the use of plan provisions and resource consent conditions. These controls can be applied at any geographic level.
- ACVM Act - manages risks of agricultural compounds on primary produce, animal welfare, agricultural security and public health by establishing controls and conditions on them.
- HSE Act - manages the exposure of people to identified hazards in their workplace[2].
Conditions or controls relating to the use of agrichemicals, fertilisers and VTAs can be applied under all of these Acts. Therefore, the potential exists for duplicating requirements for operators under the RMA, HSNO Act and ACVM Act, which can lead to increased complexity and compliance costs if these requirements are not well aligned. Where appropriate controls exist under other legislation such as the HSNO, ACVM and HSE Acts, it is unnecessary for RMA policies and plans, or conditions of consent, to duplicate these requirements. For example:
- In most circumstances HSNO controls should manage the risks from the discharge of substances used by the industry and therefore controls under the RMA are not required (see the ‘implications for planning under the RMA’ section below).
- HSNO Act controls and classifications can inform the tracking of VTAs and the storage and management of substances, such as group standards for fertiliser, therefore controls under the RMA may not be required.
- Label requirements set by the ACVM and HSNO Acts form the basis for outlining the risk a substance poses and how a substance should be used and managed. However not all controls may be specified on labels (this may not be physically possible) and for this reason safety datasheets and product safety cards (NZS 8409) are designed for users and contain more comprehensive information for HSNO controls to ensure that substances are adequately managed.
- NZS8409:2004 Management of Agrichemicals is an approved Code of Practice under HSNO that is also relevant to the management of agrichemicals under the RMA because it sets out best practise on safe, responsible and effective management as to how these substances can be used, stored, transported and disposed.
Implications for planning under the RMA
The RMA and HSNO Acts are the main legislation relevant to managing substances that the agricultural aviation industry discharges, and must therefore be considered together when examining the risks that the aerial application of agrichemicals, fertiliser and VTAs pose. The potential overlap in controls between the two Acts is explicitly recognised in section 142 of the HSNO Act, and the policy tool for minimising this overlap is provided in section 32 of the RMA which requires an evaluation of the appropriateness, effectiveness and efficiency of plan provisions.
Section 142 of the HSNO Act requires every person exercising a power or function under the RMA relating to the storage, use, disposal or transportation of hazardous substances to comply with any HSNO requirements. However, section 142 also gives councils the ability to impose more stringent requirements in regional or district plans if it is deemed “necessary” for the purposes of the RMA.
More stringent requirements in regional or district plans are likely to relate to area-specific circumstances. This reflects the difference between the HSNO Act which controls specific substances irrespective of where they are used, compared to the RMA which controls the effects of activities on the environment (and hence has a geographic focus). Potential situations where additional controls on substances used in agricultural aviation may be necessary under RMA plans or as consent conditions include:
- Managing potential effects on sensitive activities or sensitive natural environments.
- Managing reverse sensitivity.
- Managing cumulative effects from storage of hazardous substances. Location Test Certificates may be required and will include all hazardous substances stored on a site.
- Managing cumulative effects from repeat or long-term use.
The Quality Planning guidance note on Managing Hazardous Substances – interface between the Hazardous Substances and New Organisms Act and the RMA states that the “inclusion of hazardous substance controls in plans should be the exception rather than the rule, and only included when a rigorous section 32 analysis shows that these controls are justified”.
Under the RMA any new or amended provisions in a plan must be justified in a section 32 evaluation. A section 32 evaluation requires councils to consider the extent to which the proposed objectives are the most appropriate way to achieve the purpose of the RMA, and whether the proposed policies, rules and other methods are the most appropriate way to achieve the objectives by identifying other reasonably practicable options for achieving the objectives and assessing the efficiency and effectiveness of the provisions in achieving the objectives.
In the context of hazardous substances, one of the most important section 32 considerations is whether controls are required under the RMA or whether HSNO controls on the particular substance will sufficiently manage potential environmental effects. Compliance with HSNO is compulsory if there is a conflict between controls (s142 of HSNO) and HSNO requirements should not be duplicated in regional or district plans. If a council considers that RMA controls are required, these controls should specifically address those matters where HSNO does not address identified resource management issues. The rationale for these more stringent controls should also be specifically assessed and documented through the section 32 evaluation.
More information on the relationship between HSNO and RMA controls is provided on the Quality Planning website (Managing Hazardous Substances – interface between the Hazardous Substances and New Organisms Act and the RMA). Guidance on section 32 evaluations is provided on the Ministry for the Environment’s website (A Guide to Section 32 of the RMA).
[1] EPA and the HSNO Act refer to “pesticides” which include herbicides, fungicides, insecticides, detergents, sanitisers, VTA’s timber treatments, animal remedies and fumigants. “Agrichemicals” is a term used to describe herbicides, fungicides, insecticides, detergents, sanitisers. Refer to the ‘definition of agrichemical’ section of this guidance note and Appendix 3 in Technical Information relating to the Agricultural Aviation Industry.
[2] The HSW Act will change the way hazardous substances are regulated when it comes into force during 2015-2017. Details are provided on the Ministry of Business Innovation and Employment and WorkSafe New Zealand websites.
