The information contained in this fact sheet is current as at 18 September 2006.

Topic 3 - Pollution

3.4 Toxic Chemicals

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

The manufacture, sale, use and disposal of toxic chemicals are regulated by both Federal and State laws. This section explains the scope of these laws and how you can use them to prevent environmental damage caused by toxic chemicals.

Chemical substances are first assessed by the Federal Government. The States and Territories then use their own laws to regulate the use, transport and disposal of chemicals. This section describes the federal assessment process and the New South Wales regulatory framework.

3.4.1. Federal Regulation of Toxic Chemicals

The Federal Government has established assessment processes for two classes of potentially toxic chemicals:

• industrial chemicals;[1] and
• agricultural and veterinary chemicals.[2]

3.4.1.1. Industrial Chemicals

'Industrial chemicals' are all chemicals other than those used for agricultural, veterinary or medical purposes, or which are used for human consumption or as a food additive.[3]

The Federal Government assesses industrial chemicals under the National Industrial Chemicals Notification and Assessment Scheme (NICNAS), established by the Industrial Chemicals (Notification and Assessment) Act 1989.[4]

This Act was introduced to protect people and the environment from the harmful effects of industrial chemicals by assessing their possible effects and providing information and making recommendations about them.[5]

NICNAS is located within the Office of Chemical Safety (OCS) of the Department of Health and Aging. The OCS undertakes risk assessment and provides advice on potential health risks posed by chemicals used in the community. The Federal Department of Environment and Heritage (DEH) undertakes environmental risk assessment for new and existing chemicals.

All industrial chemicals manufactured or imported between 1977 and February 1990 (existing chemicals) are listed in the Australian Inventory of Chemical Substances (AICS).[6] All industrial chemicals manufactured or imported after February 1990 are categorised as new industrial chemicals. A new industrial chemical may not be manufactured or imported unless it has first been assessed under NICNAS.[7] The assessment must consider any possible adverse health, safety or environmental effects that might arise from the manufacture, use, storage, handling or disposal of the chemical.[8]

If a chemical is already listed on AICS, the Director of NICNAS may recommend that the chemical be declared to be a ‘priority existing chemical' (PEC).[9]

The Director may only make such a recommendation if he or she is of the opinion that the chemical may give rise to a risk of adverse health effects or adverse environmental effects in its manufacturing, handling, storage, use or disposal.[10] A PEC is then subject to a similar assessment process as a new industrial chemical.[11] Any person can nominate a chemical for assessment as a PEC.[12]

A large number of chemicals are in use in Australia but only a small number have been assessed, because assessments are only required for new industrial chemicals, priority existing chemicals, and assessed chemicals which require re-assessment due to a change of circumstances.

3.4.1.2. Agricultural and Veterinary Chemicals

Agricultural and veterinary chemicals are also assessed by the Federal Government under the Agricultural and Veterinary Chemicals Act1994. For more information about agricultural and veterinary chemicals, see Section 3.5 - Pesticides. [13]

3.4.2. NSW Regulation of Toxic Chemicals

Toxic chemicals are subject to a variety of State laws in New South Wales. This section covers the following topics:

• disposal of hazardous chemicals;
• transport of dangerous goods;
• workplace health and safety;
• poisons and therapeutic substances;
• pollution offences and notices;
• common law remedies;
• environmental planning; and
• access to information.

For detailed information about New South Wales laws regulating agricultural chemicals, see Section 3.5 – Pesticides.

3.4.2.1. Disposal of Hazardous Chemicals

Under the Environmentally Hazardous Chemicals Act 1985, the Environment Protection Authority may declare substances to be chemical wastes[14] and may issue ‘chemical control orders' to regulate the disposal of chemical wastes. These orders may:

• prohibit specified activities;
• prohibit activities that don't comply with the conditions of the order;
• permit an activity unconditionally; or
• prohibit activities without a licence.[15]

When assessing a chemical or an activity, the Environment Protection Authority must consider the effect or likely effect on the environment.[16]

A licence to carry out an activity prohibited by a chemical control order must be obtained from the Environment Protection Authority.[17] Licence applicants dissatisfied with the Environment Protection Authority's decision can appeal to the Land and Environment Court. [18]

The Environment Protection Authority keeps a register of all declared chemical wastes, chemical control orders and licences.[19] This register can be inspected by the public. [20] Copies are available for a fee [21] online at www.environment.nsw.gov.au

The Environmentally Hazardous Chemicals Act also established the Hazardous Chemicals Advisory Committee, which advises the Environment Protection Authority on issues related to chemicals and their control.[22]

Prosecutions may be brought by an Environment Protection Authority officer or any person who has the consent of the NSW Minister for the Environment.[23] Any person may take civil action in the Land and Environment Court to restrain a breach of the Environmentally Hazardous Chemicals Act.[24]

3.4.2.2. Transport of Dangerous Goods

The Road and Rail Transport( Dangerous Goods) Act 1997regulates the transportation and storage of dangerous goods in New South Wales in accordance with a national scheme for regulating the transport of dangerous goods.

The storage and transport of dangerous goods is subject to a system of licences and standards. There are various classes of dangerous goods, each with its own required system of labelling, transport and storage.

The specific requirements of licensing and standards for road transport are found in the Road and Rail Transport (Dangerous Goods) (Roads) Regulations 1998.[25] Rail transport is regulated by the Road and Rail Transport (Dangerous Goods) (Rail) Regulations 1999.[26] The storage, packaging and transport of explosives is regulated by the Occupational Health and Safety Act 2000.[27]

3.4.2.3. Workplace Health and Safety

Under the Occupational Health and Safety Act 2000, employers must ensure the health, safety and welfare of all employees at work.[28] This includes safe use, handling, transporting and storage of substances people intend to use at work, as well as equipment used.

Manufacturers and suppliers of substances which will be used in the workplace are required to ensure that health risks do not arise if the substances are used properly.[29]

The Occupational Health and Safety Act applies to all workplaces in New South Wales.[30] Occupational health and safety committees must be established in workplaces where twenty or more people are employed if a majority of employees request it.[31]

3.4.2.4. Poisons and Therapeutic Goods

The Poisons and Therapeutic Goods Act 1966 deals with poisons and therapeutic substances and regulates who can possess and supply these substances.

3.4.2.5. Pollution Offences and Notices

There are a number of general pollution offences that may arise in relation to the transport, storage, use and disposal of toxic chemicals.[32]

For example, it is an offence to allow a substance to leak, spill or escape from its container in a manner that results, or is likely to result in, harm to the environment.[33] Storing chemical containers negligently so that residual chemicals leak or spill and cause harm to the environment may constitute an offence.[34] If the chemicals make their way into any waters, the offence of pollution of waters may have been committed.[35]

The directors and management of a company may, in certain circumstances, be personally liable for an offence committed by an employee of the company.[36] Occupiers of premises, including farmers, may also be liable for the actions of their employees.[37]

Many chemical manufacturing works and chemical storage facilities will require an environment protection licence.[38] It is an offence for those works or facilities to operate without a licence.[39]

The Environment Protection Authority or local council may issue a ‘clean up notice' to a person who causes a chemical spill.[40] The Land and Environment Court has broad powers to make people who are responsible for chemical spills and accidents pay the clean-up costs.[41]

Funding to clean up some toxic chemical problems may be available under the Environmental Trust Act 1998, but in some circumstances the money expended under this Act may be recovered from the person who caused the problem.

3.4.2.6. Common Law Remedies

It may be possible to obtain compensation by claiming common law damages for harm caused by the use of chemicals. 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.

3.4.2.7. Toxic Chemicals and Environmental Planning

Premises used to store, handle or manufacture toxic chemicals may only be built on appropriately zoned land. Many current zoning definitions in local environment plans define ‘offensive and hazardous industry' as industry which, because of the nature of its operations, must be carried out in detached or isolated buildings.[43]

However, State Environmental Planning Policy No. 33 – Hazardous and Offensive Development classifies fewer developments as hazardous or offensive. The definitions contained in that policy retrospectively override any definitions in a local environmental plan, so a development application can be lodged for some proposals which may appear to be prohibited under the current local zoning.[44]

Chemical factories or storage areas will sometimes be defined as a 'designated development', which requires an environment impact statement to be prepared. [45] In such cases, public notification of the development application must be given, inviting submissions from the public. [46] Third party merit appeals will also be available.[47] (see Section 2.1.2.- Development Assessment)

3.4.3. Access to Information

The growth of the chemical industry and an increase in industrial accidents has raised public concern about the threats that toxic chemicals can pose to a community. This concern has resulted in community demand for information about using, transporting and storing chemicals.

Unlike the United States, Australia does not have 'Community Right to Know' legislation, which gives the public access to information about chemicals being released into their community.[49]

However, the Plastics and Chemicals Industry Association (PACIA) has a 'community right to know' code of practice, which allows public access to information, including safety data sheets, outputs from industrial premises, waste treatment and disposal, risk assessments and incidents occurring on industrial premises. This code is available at www.pacia.org.au.

The Australian Inventory of Chemical Substances contains information about all chemicals considered suitable for commercial production and use in Australia. The inventory is available for public inspection. Copies of the inventory are available for a fee, and it can be searched online from the NICNAS website at www.nicnas.gov.au.

Copies of development consents for chemical works are available from the local council which granted the development consent. Councils are legally required to allow members of the public to view development applications and associated documents free of charge.[50]

If chemical works hold an environment protection licence, a copy of the licence and other information may be obtained from the public register maintained by the Environment Protection Authority. The register is available online at www.environment.nsw.gov.au.

The Commonwealth Department of Environment and Heritage (DEH) has created a National Pollutant Inventory (NPI), which provides the community with more information about toxic chemicals and other pollutants. The NPI is available online at www.npi.gov.au.

References

1. Industrial Chemicals (Notification and Assessment) Act 1989 (Cth)
2. Agricultural and Veterinary Chemicals Act 1994.
3. Industrial Chemicals (Notification and Assessment) Act 1989 (Cth), ss. 6 and 7.
4. Industrial Chemicals (Notification and Assessment) Act 1989 (Cth), s. 3.
5. Industrial Chemicals (Notification and Assessment) Act 1989 (Cth), s. 3(a).
6. Industrial Chemicals (Notification and Assessment) Act 1989 (Cth), ss. 11 and 12.
7. Industrial Chemicals (Notification and Assessment) Act 1989 (Cth), s.21.
8. Industrial Chemicals (Notification and Assessment) Act 1989 (Cth), ss. 32(2) and 33.
9. Industrial Chemicals (Notification and Assessment) Act 1989 (Cth), s.50B(1).
10. Industrial Chemicals (Notification and Assessment) Act 1989 (Cth), s.50B(2).
11. Industrial Chemicals (Notification and Assessment) Act 1989 (Cth), ss.51(3), 57 and 60A.
12. Industrial Chemicals (Notification and Assessment) Act 1989 (Cth), s. 55(1).
13. Other federal and state laws regulate pharmaceuticals, food additives, fertilisers and veterinary drugs. These laws are beyond the scope of this publication.
14. Environmentally Hazardous Chemicals Act 1985, s.10(1).
15. Environmentally Hazardous Chemicals Act 1985, ss. 22 and 23.
16. Environmentally Hazardous Chemicals Act 1985, s.17.
17. Environmentally Hazardous Chemicals Act 1985, s. 28.
18. Environmentally Hazardous Chemicals Act 1985, ss. 37-40.
19. Environmentally Hazardous Chemicals Act 1985, s. 52.
20. Environmentally Hazardous Chemicals Act 1985, s. 52(3)(a).
21. Environmentally Hazardous Chemicals Act 1985, s. 52(3)(b).
22. Environmentally Hazardous Chemicals Act 1985, ss. 6 and 7.
23. Environmentally Hazardous Chemicals Act 1985, s. 56(3)&(4).
24. Environmentally Hazardous Chemicals Act 1985, s. 57.
25. These refer to the Road Transport Reform (Dangerous Goods) Regulations 1997 (Cth), which contain the specific provisions.
26. These refer to the Australian Code for the Transport of Dangerous Goods by Road and Rail (Cth), which contains the specific provisions.
27. These provisions were inserted by the Occupational Health and Safety Amendment (Dangerous Goods) Act 2003.
28. Occupational Health and Safety Act 2000, s.8.
29. Occupational Health and Safety Act 2000, s.11.
30. Occupational Health and Safety Act 2000, ss. 5 and 9.
31. Occupational Health and Safety Act 2000, s. 17(1).
32. Protection of the Environment Operations Act 1997, ss. 115-117, 120, 124, 135, 145.
33. Protection of the Environment Operations Act 1997, s. 116
34. Protection of the Environment Operations Act 1997, s. 116
35. Protection of the Environment Operations Act 1997, s. 120.
36. Protection of the Environment Operations Act 1997, s. 169.
37. Protection of the Environment Operations Act 1997, s. 257.
38. Protection of the Environment Operations Act 1997, s. 43 and Schedule 1.
39. Protection of the Environment Operations Act 1997, ss. 47 and 48. The maximum penalty for operating a facility which requires a licence without a licence is, in the case of a corporation $250,000 with a possible further penalty of $120,000 for each day the offence continues, and in the case of an individual the maximum penalty is $120,000 with a possible additional $60,000 for each day the offence continues.
40. Protection of the Environment Operations Act 1997, ss. 6, 91-92.
41. Protection of the Environment Operations Act 1997, ss. 243-250.
42. Mountfoot v Werf (Local Court, Perth, 10068 of 1989).
43. See for example: Environmental Planning and Assessment Model Provisions 1980, cl.4, definition of ‘offensive or hazardous industry'
44. State Environmental Planning Policy 33- Hazardous and Offensive Development, cl. 6.
45. Environmental Planning and Assessment Act 1979,s. 78A(8)
46. Environmental Planning and Assessment Act 1979,s. 79
47. Environmental Planning and Assessment Act 1979,s. 79
48. Kummer and Central Coast Against Chemicals Inc v Bayer Australia Ltd and Wyong Shire Council, Land and Environment Court B 40260 of 1990.
49. The US Emergency Planning and Community Right-to-Know Act of 1986establishes requirements for Federal, State and local governments, Indian Tribes, and industry regarding emergency planning and “Community Right-to-Know” reporting on hazardous and toxic chemicals. The Community Right-to-Know provisions help increase the public's knowledge and access to information on chemicals at individual facilities, their uses, and releases into the environment. States and communities, working with facilities, can use the information to improve chemical safety and protect public health and the environment.
50. Local Government Act 1993, s.12.

© 2007 Environmental Defender's Office (Ltd) NSW