EDO Fact Sheet 4.4 Chemicals and pesticides

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Last updated: 28 September 2008

4.4 Chemicals and pesticides

1 Overview

Key to terms used in this Fact Sheet

APVMA means the Australian Pesticides and Veterinary Medicines Authority

DECCW means the NSW Department of Environment, Climate Change and Water

Environment Minister means the NSW Minister for Environment, Climate Change and Water

EPA means the NSW Environment Protection Authority (an independent statutory body within DECCW )

Inventory means the Australian Inventory of Chemical Substances kept by NICNAS.

NICNAS means the National Industrial Chemicals Notification and Assessment Scheme.

Many chemicals are potentially dangerous to humans, animals and plants. These substances include agricultural chemicals such as pesticides, fungicides, insecticides, and industrial chemicals such as paints, dyes, solvents, cleaning agents and plastics.

Responsibility for regulating chemicals and pesticides is split between the Commonwealth and the States as follows:

This Fact Sheet explains the Commonwealth's registration and assessment process for industrial chemicals, pesticides and veterinary chemicals, and outlines the NSW regulatory framework for managing chemicals and pesticides.

2 Industrial chemicals

2.1 What is an ‘industrial chemical'?

Industrial chemicals1 are chemicals which have an industrial use and include things such as solvents, adhesives, plastics, laboratory chemicals, refrigeration chemicals and cosmetics.2

They do not include chemicals used solely as medicines, pesticides, veterinary chemicals, food or food additives, or radioactive chemicals.3

2.2 Industrial chemicals (Notification and Assessment) Act 1989

The Industrial Chemicals (Notification and Assessment) Act 1989 (Cth) establishes a national system of notification and assessment for industrial chemicals.4 The main focus of the Act is on assessing new chemicals before they can be imported or manufactured in Australia, although existing chemicals can be assessed too if there is a concern.

The Federal Minister for Health and Ageing is responsible for administering the Industrial Chemicals (Notification and Assessment) Act 1989 through the Department of Health and Ageing.5

The National Industrial Chemicals Notification and Assessment Scheme ( NICNAS ) was established in 1990 under the Industrial Chemicals (Notification and Assessment) Act 1989.6

NICNAS is located in the Commonwealth Department of Health and Ageing and is responsible for implementing the regulatory scheme under the Industrial Chemicals (Notification and Assessment) Act 1989.

Persons who wish to import or manufacture a new industrial chemical must notify NICNAS.8 NICNAS then assesses the environmental, public health, occupational health and safety risk posed by the new chemical.9 NICNAS then issues the importer or manufacturer with a certificate or permit which set outs conditions for safe use of the chemical.

It is an offence to manufacture or import a new industrial chemical without an assessment certificate or permit (maximum penalty $33,000).10

Existing chemicals are those chemicals which are already available for use in Australia. They are listed on the Australian Inventory of Chemical Substances ( Inventory ).11 The Inventory currently lists about 40,000 industrial chemicals. It includes all new chemicals assessed since 1990.

Due to the large number of existing chemicals, NICNAS cannot provide an assessment for each chemical. NICNAS therefore assesses existing chemicals on a priority basis depending on whether the chemical poses any adverse health or environmental risks.12 NICNAS can also revisit completed assessments if new data becomes available.13

NICNAS makes recommendations on how existing chemicals can be used safely in Priority Existing Chemicals assessment reports.14 Chemicals which have been assessed by NICNAS are identified on the Inventory by the "Assessed by NICNAS" flag.

People who import and/or manufacture industrial chemicals for commercial purposes must be registered with NICNAS – regardless of the quantity of industrial chemicals manufactured or imported.15

Any person, including the Minister, can apply for an injunction in the Federal Court to prevent a breach of the Industrial Chemicals (Notification and Assessment) Act 1989.16

3 Pesticides

Pesticides are widely used to control pests on crops and in buildings. They include things such as:

Pesticides include veterinary chemicals which are used to control external parasites on animals.17

3.1 Registration and assessment of pesticides

There is a national scheme for the registration of pesticides. These types of chemicals must be assessed and registered by the Commonwealth under the Agricultural and Veterinary Chemicals Act 1994 and the Agricultural and Veterinary Chemicals Code Act 1994 before they can be sold.

The Federal Minister for Agriculture, Fisheries and Forestry is responsible for administering the two Commonwealth Acts, through the Department of Agriculture, Fisheries and Forestry.18

The Australian Pesticides and Veterinary Medicines Authority ( APVMA ) is a statutory authority within the Department (also referred to as the National Registration Authority – NRA).

APVMA is responsible for implementing the Agricultural and Veterinary Chemicals Act 1994 and the Agricultural and Veterinary Chemicals Code Act 1994.

As well as registering the chemical product itself, APVMA must approve a product's active constituents and labels for chemical product containers.

Under the AGVET Code, it is an offence to possess or supply unregistered products or unapproved constituents.20

Pesticides must be entered by APVMA on the public Register of Agricultural and Veterinary Chemical Products before they can be used.22

All registered products are given a unique registration number which is printed on the bottom of the product label (eg APVMA Approval No XXX, or NRA Approval No XXX), along with the conditions of use.23

If you are concerned about whether a pesticide is registered, you should call APVMA or you can search the Register on its website.

APVMA cancels registration of certain marine paints

On 31 March 2003, the APVMA cancelled the registration of all marine paints containing the chemical tributylin. It also prohibited the use of such products after 31 July 2003 following an international agreement to phase out that type of marine paint. The active ingredient was found to bioaccumulate in whales and other sea mammals and to disrupt the endocrine system of certain invertebrates.

3.2 Use of pesticides

The storage, use and disposal of pesticides in NSW is regulated by the Pesticides Act 1999 (NSW).25

The Pesticides Act 1999 is administered and enforced by the NSW Environment Protection Authority (EPA), an agency within the Department of Environment, Climate Change and Water. The Minister for the Environment has ministerial responsibility for administering the Pesticides Act 1999.

Maximum penalties: corporation $250,000; individual $120,000. The Act contains similar, lesser offences for ‘misusing' pesticides.29

Misuse of pesticides may also constitute the offence of polluting waters under the Protection of the Environment Operations Act 1997 unless the use is permitted under a pollution licence.34

For more minor breaches of the Pesticides Act 1999 where the facts are not in dispute, the EPA can issue a penalty notice (for up to $1,500) which must be paid within 28 days, rather than commencing a prosecution.38

Alternatively, the EPA can bring criminal proceedings to prosecute an offence under the Pesticides Act 1999.39 Only the EPA can bring criminal proceedings. Proceedings for an offence are taken in a Local Court or before the Land and Environment Court.40

A member of the public could bring civil proceedings to remedy or restrain a breach of the Pesticides Act 1999 if the breach was likely to cause harm to the environment.41

The EPA can issue pesticide control orders which control the way in which certain restricted pesticides can be used.42

As at September 2008, there were 15 pesticide control orders in force covering things such as: the use of 1080 baits for rabbits, feral pigs, wild dogs and foxes; endosulfan; aerial spraying; 1080 liquid concentrate; and the use of 1080 in livestock collars.

Pesticide Control (1080 Liquid Concentrate and Bait Products) Order 2008

1080 is a restricted pesticide in NSW. “1080” (pronounced ten-eighty) is the common name given to the poison sodium fluoroacetate that is used to control pest animals such as wild dogs, foxes, feral pigs and rabbits. Use of 1080 baits pose risks to the environment, particularly to wildlife and domestic animals which can be inadvertently poisoned.

On 10 October 2008, a new pesticide control order (PCO) named Pesticide Control (1080 Liquid Concentrate and Bait Products) Order 2008 commenced. It was introduced in response to new 1080 products and to incorporate new methods of application.

Only an Authorised Control Officer who has undergone specific training and obtained accreditation can supply, handle and use 1080 products.

If you intend to use 1080 pesticide, you must first read the PCO and the relevant schedule for the pest animal that you need to control. You can view the Pesticide Control (1080 Liquid Concentrate and Bait Products) Order 2008 on the DECCW pesticide control order webpage .

DECCW has also produced a Factsheet on the new 1080 PCO. The Factsheet contains the steps you need to take if you intend to use a 1080 pesticide. That includes guidelines on how to obtain 1080 baits, how to comply with the PCO, what to do after placing the baits and how to store them. Click here to view the 1080 Factsheet

There are significant penalties for unauthorised use of 1080 or failing to comply with the PCO. The maximum penalty for an individual is $60,000 and $120,000 for a corporation.

For more information about pesticide control orders visit DECCW's PCO webpage above, or call DECCW's Environment Line on 131 555 (cost of a local call).

A pilot must hold a special pesticide rated licence, and the aircraft must have an aerial applicator licence, before engaging in aerial spraying.43 The EPA issues licences for aerial pesticide spraying.44

The holder of the aircraft must keep detailed records of each spray application, including the pesticide that was applied, the land on which it was applied, and the weather conditions at the time of application.

Aerial spraying equipment must not be attached to aircraft unless the aircraft is approved by the Civil Aviation Safety Authority for agricultural operations.

A pilot is not allowed to discharge pesticide within a distance of 150 metres horizontally from the boundary of any dwelling, school, factory or other public place without prior written permission from the occupier of the premises (see Pesticide Control Order Air 1).

APVMA has also produced information concerning how the APVMA determines the size of no-spray zones when registering a pesticide, some standard operating principles and some standard risk scenarios.

4 Hazardous chemicals

4.1 Environmentally Hazardous Chemicals Act 1985

The use and disposal of hazardous chemicals in NSW is regulated under the Environmentally Hazardous Chemicals Act 1985.45 The Act is administered by the EPA.

The Act allows the EPA to control chemical wastes which are likely to be accumulated, dumped or abandoned, thus causing a threat to human health and the environment.

If the EPA is concerned that a particular chemical substance is likely to be accumulated, dumped or abandoned, it can declare that substance to be a ‘chemical waste'.46

Chemical control orders can be made for chemicals that have been declared as waste and for any other chemicals that are declared as environmentally hazardous. A chemical control order can prohibit the use of a chemical, and can specify how the controlled chemical can be safely handled and disposed of.47

Chemical control orders are usually made where controls on chemicals are required beyond those available under pollution laws (eg discharge limits under pollution licences, or labeling requirements).

It is an offence to breach a chemical control order or a condition of a licence (maximum penalty corporation $137,500; individual $66,000).51

The Environmentally Hazardous Chemicals Act 1985 is enforced through the processes established by the Protection of the Environment Operations Act 1997 (eg Tier 1, 2 and 3 offences, including penalty notices):52 see Fact Sheet 4.1 on Air, Water and Noise Pollution. Public register The EPA is required to keep a public register53 of:

5 Other legal mechanisms controlling the use of chemicals

5.1 Pollution licencing

A pollution licence may be required for chemical usage under the Protection of the Environment Operations Act 1997. Activities which require a pollution licence are listed in Schedule 1 of the POEO Act (scheduled activities).

Listed activities which relate to pesticide or chemical usage (and thus require a pollution licence from the EPA) include:

See Fact Sheet 4.1 on Air, Water and Noise Pollution for more information on pollution licencing.

5.2 Development consent and chemical facilities

Local environment plans may contain restrictions on where an ‘offensive and hazardous industry', such as a chemical facility, can be built.

State Environmental Planning Policy No 33 – Hazardous and Offensive Development classifies fewer developments as hazardous and offensive, thus making it easier for them to be approved despite being in zones where they may be prohibited.

SEPP 33 also requires an applicant for development consent for a potentially hazardous industry to carry out a preliminary hazard analysis.56 The SEPP also lists additional factors for a consent authority to consider when assessing a hazardous development, such as the hazard analysis, and any likely future use of the surrounding land.

‘Chemical industries' and ‘chemical storage facilities' over certain thresholds or located in environmentally sensitive areas are listed as ‘designated development' under the Environmental Planning and Assessment Act 1979.57

This means that a development application for a new chemical industry or chemical storage facility which is listed as designated development must be accompanied by an environmental impact statement.58

This also means that any person (a third party) can challenge the merits of any development consent in the Land and Environment Court (See Fact Sheet 2.3, para 5 Appeals for more information).

5.3 Contaminated land

Contaminated land in NSW is regulated under the Contaminated Land Management Act 1997: for more information on how contaminated land is regulated, see Fact Sheet 4.2.

5.4 Common law remedies (damages)

It may be possible to obtain compensation (damages) for harm caused to a person or property by the use of chemicals or pesticides. You should seek medical and legal advice as soon as possible if you think you have been injured as a result of exposure to chemicals or pesticides.

6 Transport of dangerous goods

The Act adopts uniform national requirements set out in the Australian Dangerous Goods Code for the classification, packaging, loading, consigning, marking and placarding of dangerous goods and vehicles.

The Act is administered by both DECCW and WorkCover. DECCW maintains a public register of drivers licences and vehicle licences under the Act.