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MFE Provides Approvals for Toxic Substances

MFE Provides "Back Door" Approvals for Toxic Substances

The Ministry for the Environment (MFE) has engineered what is essentially a one-way gate for existing toxic substances – free entry for all and huge barriers to removing any single one from legal use, no matter what adverse effects later emerge.

Passage through Parliament today of a bill to amend the Hazardous Substances and New Organisms Act (HSNO) has locked in this process.

Every chemical in use in the country in 2001 - some 110,000 - is simply being deemed to comply with HSNO without any having been assessed to see if they would actually comply with legislation that is claimed to be a "gold standard".

What makes this process untenable is that once a HSNO approval has been given in this way, it is a perpetual consent and can only be revoked under a very costly reassessment process. ERMA currently has funds available for less than one such reassessment a year – just $57,597 – and the Minister for the Environment would give no assurances to Parliament today about future levels of funding. While it is intended that extra conditions will be placed on substances judged to be most risky, this approach can not be expected to do the job in serious cases.

A clear alternative is for each approval of a substance to specify an expiry date so that at some point old technology toxic chemicals will no longer be legal to use. Their promoters will still have the ability to apply for a fresh approval, but the chemical will then need to actually pass the tests HSNO sets, rather than being let in the back door again. This provides incentives to compare the old with new substances and do the same job with less risk. Further, the applicant would have to pay for that assessment – as is the case for substances not currently in use that must also meet the full HSNO test.

One of the most bizarre aspects of the current process is that the taxpayer has to pay to remove any chemical later found not to meet HSNO standards – even when it was never assessed and was simply deemed to have complied.

MFE has however set up a framework that will leave victims carrying much of the liability for any damage arising from toxic substances. HSNO does not make promoters or users liable for damage they may cause, even if they break ERMA conditions. Innocent parties effectively carry the risk for any financial harm and for any health effects not covered by ACC as common law actions offer so little chance of a remedy.

MFE has thus devised a process that requires Government to pay to prove an existing substance is unsafe, not promoters to prove it is safe, and tends to leave victims, not the Crown, to pick up the tab if Government fails to allocate the necessary funds to do the job. As the author of these perverse incentives, the ministry has surrendered regulatory credibility in respect of toxic substances.

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