8. Make Controls Understandable for Users and Enforcement Officers

Situation

The control regulations are performance-based and technically complex. They do not describe what a person has to do – but the outcome that has to be achieved. It was intended that industry groups would develop codes of practice that would become approved codes of practice and these would provide the ‘how to guides’. However limited codes are available at this time because the base regulations are not complete.

Two-thirds of New Zealand enterprises employ less that 50 people. They often do not have the capacity or knowledge to convert the technical controls into practical means to meet the controls. While generic codes will be helpful, particular industries may not have the resources to prepare codes of practice for their industry.

Opportunity

There is an opportunity to improve the clarity, practical nature and cost effectiveness of the controls.

How

There are four proposals to improve the clarity, practical nature and cost effectiveness of the controls. The first proposal can be done immediately while the others require Act amendments to be implemented:

• user-friendly guidance and developing codes of practice;
• change HSNO to enable ERMA to put conditions on approvals rather than references to the control regulations;
• change HSNO to enable ERMA to issue standards; and
• change HSNO to provide a simplified code of practice approval process.

How in the short term – guidance

The three proposals above (approval conditions, standards and simplifying the code of practice approval process) may require legislative change and may take some time to implement. We also propose two methods to help make controls understandable in the short term: codes of practice and user-friendly guidance.

User-friendly guidance should be developed on an industry basis. This guidance would take an industry, for example domestic pest control, consider the substances used, the controls that apply to those substances, and develop a short guidance note on what they could do to meet the controls. This industry-based guidance would be prescriptive rather than performance based and could be used as a basis for developing codes of practice. The guidance could be an industry code (as the dry-cleaning industry has drafted) but as it is not approved it would have no legal standing.

There are several codes of practice currently underway within industry. However there needs to be more, particularly as substances are transferred. We propose that a group be formed including ERMA, MfE and industry to determine what the priority for New Zealand user-friendly guidance and codes of practice are, and how they should be funded.

How – conditions on approvals

We propose that ERMA issue conditions either in conjunction with or instead of the existing control regulations. The distinction being that controls are limited to the words within the control regulations, and conditions can take from the controls and be turned into more user-friendly and practical means to mange the potential effects of hazardous substances.

Further, it is recommended that the conditions be incorporated into the approval document rather than relying on referring to the regulations. The regulations then become, in effect, a ‘tool box’ for ERMA rather than users having to refer back to the regulations.

Flexibility for innovation can be maintained.

This proposal requires the regulator, ERMA to do some of the work that codes of practice were intended to cover. It needs a lot more work to be fully assessed however we think it has potential for making controls easier to follow and is worth pursuing.

How – standards

We propose that ERMA be given the ability to issue a standard set of controls for groups of substances. For example a packaging and labelling standard for groups of veterinary medicines. Again this means that an importer, manufacturer or user would not have to refer to the control regulations. They only need to look at the standard.

How – a simple code of practice approval process

Approved codes of practice were primarily intended to be a means of complying with the regulatory controls. In addition they could be the route through which the performance-based controls are interpreted for people. However the resources and expertise available to develop suitable codes has proven to be a barrier to their adoption. The process for approving codes needs to be kept simple so that ERMA can quickly approve and update codes, enabling them to be more readily available as was intended. In addition, use of codes does ultimately substitute for compliance with controls.

Subsequent benefits

Use of standards will also enable ERMA to group notified toxic substances and apply controls accordingly as part of the transfer process, without having to assess each individual substance.