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Australian Council of Trade Unions (ACTU) Submission To the Review of the National Industrial Chemicals Notification and Assessment Scheme
27 July 2012
D No. 41/2012ACTU
Level 6, 365 Queen Street
Melbourne VIC 3000
The ACTU is the peak union body representing 47 affiliated unions and the interests of almost 2 million workers across Australia. The ACTU is committed to ensuring that all workers have the right to a safe and healthy work environment and in the event of injury or illness are afforded decent levels of workers’ compensation, quality rehabilitation and the opportunity to participate in fair and equitable return to work programs.
The Victorian Trades Hall Council (VTHC) and Queensland Council of Unions (QCU) are affiliates of the ACTU and the peak union councils in Victoria and Queensland respectively. Representatives from these councils represent the ACTU on a number of NICNAS committees and forums and consequently have an in depth knowledge of the work done by the industrial chemicals regulator.
The ACTU welcomes the opportunity to provide this submission to the Review of the National Industrial Chemicals Notification and Assessment Scheme.
This Submission, in Attachment 1, is made by the ACTU and is a joint submission of the ACTU, VTHC and QCU.
Queries in the first instance should be directed to Renata Musolino
Organisation or Individual:
This submission is a joint submission from the
- Victorian Trades Hall Council (VTHC)
- Australian Council of Trade Unions (ACTU)
- Queensland Council of Unions (QCU)
VTHC OHS Information Officer
03 9659 3571
Email address: Renata Musolino
54 Victoria Street
As above Top of page
Australian Council Of Trade Unions, Victorian Trades Hall Council, Queensland Council Of Unions
A matter raised by us in a number of previous submissions is the fact that the current Australian regulatory framework for industrial and other chemicals is fragmented and lacks coordination between regulatory agencies. As the regulator of ‘industrial chemicals’ NICNAS has been able to complete much work, and done so well, often in the face of opposition and lack of cooperation from industry stakeholders and limited regulatory powers. Examples of this include the enormous amount of work completed in preparation of the IMAP; increased formal relationships with international regulators enabling increased use of assessments done by these agencies, and more. Any improvements made to NICNAS or the ICNA Act as a result of this review must include measures to ensure that recommendations are expediently implemented by the other regulators. The capacity of NICNAS to undertake its work must not be diminished, but rather enhanced.
are supportive of simplifying unnecessary complexity and confusion, eliminating unnecessary duplication, and increasing efficiency in such a way that will improve the scheme. However, we cannot support any measures that reduce protection or lead to an increase in risk to public, worker or environmental health and safety. Our current system unfortunately has gaps and unacceptable lag times in terms of protections. It also does not have what should be a necessary underlying prerogative - that is to work towards the reduction and eventual elimination of known toxic substances, while at the same time facilitating the introduction of safer new chemicals.
While we acknowledge that the current exercise is a review of NICNAS, the paper serves to highlight a number of the complexities and gaps in the regulation of chemicals. It is our view that government must examine the overall regulation of chemicals to increase protection, reduce complexity and ‘gaps’ and importantly work towards a reduction of toxic chemicals imported and used here.
Specifically in relation to our position that NICNAS must have the ability to, where necessary, require information and be able to assess chemicals (both ‘new’ and ‘existing’) for Australian conditions:
the Canadians, who are further in the prioritization and assessment of that country’s existing chemicals, found that the priorities were not what they had expected. As described by Dr Bette Meek2
at the launch of IMAP, they found that the use profile
was a critical determinant - not volume, not even hazard - as this provided the necessary information with regard to exposure. Canada has chemicals on its list (approximately 23,000) but has the further advantage of having use data, required when its system was established. This, unfortunately, was not a requirement when the ICNA Act was introduced.Top of page
the Discussion Paper does not specifically canvas the work NICNAS is currently undertaking in the area of nano forms of chemicals. There have been recent changes to ensure that any nano forms of new chemicals are notified and properly assessed (eg amendments to the permit system, etc). The more concerning issue is nano forms of existing chemicals already on AICS, whether assessed or not. This is important work that must continue as nano sized chemicals have different characteristics to their bulk counterparts and consequently do not ‘behave’ in the same way and should therefore be scrutinized.
Part 4 – The regulatory framework for industrial chemicals (options A1 – A3)
Of the three options, the ACTU believes that option A2 is the most important, but with enhancements (see below). However, we also believe that there are benefits in also implementing Options 1 and 3.
- the development of such a manual would very useful not only to industry (particularly small business) but also to the general public. Its development, by mapping out the various processes, and describing the roles and responsibilities would also assist in highlighting the gaps and duplication in the regulatory system.
-The ACTU supports the establishment of a ‘cross portfolio group’ which, however, needs to have a broader remit, as suggested by the Discussion paper, and include the matters listed. Of most importance to the trade union movement would be not only the identification and addressing of gaps in regulatory coverage, but also consideration of broader policy matters such as legislation on the reduction of toxic substances.
It has been our experience that the current role of the SCOC is a limited one: basically to oversee the implementation of the Productivity Commission recommendations accepted by Government. This has been an ongoing concern for the ACTU, as the primary focus and interest of the PC was ‘competitiveness and productivity’, not
the protection of health of the community or the environment. Thus, while SCOC has been forum at which the various regulatory agencies have been able to meet and discuss issues and progress against those recommendations, it has not been a forum for discussion and consideration of broader chemical issues such as prevention of exposure.Top of page
Further, the actual regulatory bodies such as NICNAS and SafeWork Australia have not had formal representation, and were not always necessarily present. Stakeholders (unions, industry groups) were invited on several occasions to participate and hear reports from various departments, but are also not represented, nor have a formal role - there needs to be more formalized processes in place for involvement of and consultation with stakeholders.
- Given the current limitations of NICNAS powers, and the lack of/slow implementation of NICNAS recommendations, it is crucial that at the very least
the MOUs be strengthened (reviewed and amended as necessary) and that they be adhered to. As noted above, the ACTU believes an overhaul of chemical regulation overall is needed, however a strengthening the MOUs should be done in the interim. The coordination, review, updating and implementation of the MOUs should be one of the responsibilities of the cross portfolio group, (as per Option A2) at least in the first instance.
Part 5 – New industrial chemicals (options B1-B6)
This section contains a useful summary of the current problems and limitations of the process for new chemicals, for example highlighting the fact that other agencies can take years to consider and implement NICNAS recommendations; and that while NICNAS can impose controls for lower risk chemicals, it loses the power to do so for higher risk chemicals.
The ACTU in general supports the listed ‘objectives for reform’ with the following provisos:
- that the first objective (protection of public, worker and environmental health and safety) must be the most important. An ‘appropriate’ level of protection cannot be determined on the basis of seeking to fulfill the second objective - that is, ‘enhancing competition - minimizing the cost of regulation to industry.’ The ACTU expects that government implement necessary regulation. The ACTU supports simplification of the system so that newer, safer chemicals can be more easily introduced with cost and time delays reduced so far as possible.
- the objective of chemicals regulation must be to provide protection and so if this necessitates some ‘disruption’ to the role of one or others of the ‘risk managers’ then this should not be ruled out.
To preface the comments to this section, the ACTU would like the following points noted:
- some categories/permits (creating ‘complications’ and ‘complexity’) were introduced to facilitate easier and less costly introduction: for example, the LRCC category, and Permits to allow for small quantities for research and development purposes. The trade union movement has had input and participated in more recently formed consultative forums at NICNAS for many years. It is acknowledged that the number of categories can be initially overwhelming and complex. However while there may be opportunities for simplification, in our view there is also a problem with a lack of adequate industry knowledge - particularly the smaller sectors.
- NICNAS has undertaken a great deal of work over the past few years to maximize use of, where possible, assessments done under overseas schemes, including entering into formal agreements with agencies. However, where the content of such assessments has not been able to be accessed, NICNAS has had no choice but to require full assessments to be provided.
- In response to industry concerns that the current assessment process for new chemicals is too costly and time consuming, and is a disincentive for the introduction of safe chemicals, the ACTU would support investigation of the possibility of establishing a ‘short cut’ assessment process for some chemicals. Those suitable would be those which have been assessed as ‘safe’ and approved for use in countries with similar levels of chemical assessment schemes - as long as there is confidence in the assessments and NICNAS could access relevant data and request specific data relevant to Australian conditions. If, as claimed by industry, the outcomes of lengthy assessments done here after similarly lengthy assessments done in the EU or US are essentially the same, then this would be a possibility.Top of page
- The ACTU supports an assessment of the various categories, the volume thresholds, data requirements and applicability criteria to simplify, clarify and where appropriate, rationalize and harmonise with overseas schemes - if an equivalent or better level of assessment and protection of human and environmental health is achieved. The process must take into account specific Australian conditions/use/etc.
- The ACTU has no issue with an investigation into expanding exemptions where it can be demonstrated that such changes will not have a negative impact on the protection to public, worker or environmental health and/or safety. It should be noted that the community stakeholders were involved with and supportive of the introduction of the LRCC reforms, the objectives of which included facilitation of safer chemicals to Australia (and hopefully a corresponding reduction of less safe chemicals in use).
The evaluation of the impact on industry of the LRCC reforms done in 2009 revealed these are underutilized by industry3
. The ACTU supports a review to ensure maximum efficiency in delivering stated objectives - that is, facilitation of notification of LRC chemicals. However, given the lack of industry knowledge, and the lack of an evaluation of the outcomes - types of chemicals introduced; quantities; whether these have replaced existing less safe chemicals - it would be premature to vary/increase thresholds or categories for ‘LRC Chemicals’.
- The ACTU agrees with this, as a streamlined pre-assessment process which would enable NICNAS to refuse an application if there is missing information, would assist industry and reduce time delays.
- Point 1:
Again, the ACTU supports simplification and streamlining of the assessment process in such a way as to re-align the assessment effort towards chemicals of higher concern and facilitate introduction of safer, low concern chemicals. Any changes which result in a better and more streamlined and efficient process for both NICNAS and industry are acceptable as long as the integrity of the assessment process is not compromised.
- Point 2:
The ACTU believes that NICNAS needs
to have the power to refuse an assessment certificate if the introduction of the chemical poses an unacceptable risk to the public, workers or the environment - and this should not be in only in ‘very limited circumstances’. As has been acknowledged in the discussion paper, and our previous submissions, there are ongoing problems with the ‘risk regulators’ implementing the necessary conditions to ensure such chemicals do not pose such a risk.
It would be hoped that any ‘new’ chemicals industry seeks to introduce into Australia will be safer and pose much lower risks than ‘existing’ chemicals. Our regulatory system should be such that there is a disincentive to the introduction of chemicals which posed unacceptable risks - even if these risks can be mitigated by the introduction of controls, the preference must be to have intrinsically safe chemicals.Top of page
The ACTU fully supports this option, as it ensures that necessary control measures are in place from the moment the chemical can be used in Australia and avoid the current situation whereby NICNAS recommended measures may not be implemented (or implemented at different times) by the various risk managers. If the assessment of a new chemical concludes that it needs to have an exposure standard, for example, or other control imposed (supported by assessments done elsewhere), then the exposure standard (or other condition) should be a condition of its introduction here - and set either automatically or by NICNAS. As there is no previous use of the chemical, there is no added cost to industry to establish the exposure standard.
Delaying the issue of the assessment certificate until such time as the risk management agencies implement the necessary conditions is likely to lead to potentially long delays - but if NICNAS does not have the power to implement controls, then this would be an alternative.
While the current legislation means that NICNAS could impose conditions only on the introducer (manufacturer or supplier) this would ensure that the appropriate information would (by law in the case of OHS) be passed on to the purchaser/user. However, legislation should be amended so that IF a new chemical is hazardous - but can be used safely with conditions - then this chemical should be automatically classified as hazardous and be placed on the HSIS (and linked to GHS requirements)
- In relation to AICS
If NICNAS has determined that controls are required for a chemical to be able to be used safely, and these have not been implemented/imposed by the relevant risk managers, then either
these controls carry over to AICS or
the chemical should not be listed on AICS. This is particularly important at the point that the chemical, through its listing on AICS, becomes generally available.
If options under B4 are implemented, no chemical should be allowed to be introduced in the first place (and therefore, after 5 years be automatically added to the AICs) unless
adequate conditions have been imposed - either by NICNAS, or by other risk managers at time of introduction.
Point 3: Agreed
- Agreed, any necessary consequential changes following changes to legislation (including to that of other regulators/agencies) to progress above options must be made to ensure fairness, etc
NICNAS should have the ability to refuse an assessment certificate and/or list a chemical on AICS on the basis of an assessment that the chemical poses a risk that cannot be adequately controlled using standard controls or that there are no control/conditions in place.
Part 6 – Existing industrial chemicals (options C1-C6)Top of page
It is in the area of Existing Chemicals that the trade union movement has the greatest concerns and the current activity in prioritizing the - grandfathered - existing chemicals on AICS is fully supported. This section of the Discussion Paper succinctly outlines the shortcomings with the current ICNA Act with regard to assessing the large number of grandfathered chemicals placed on AICS over twenty years ago. The widespread community concern and dissatisfaction was acknowledged by NICNAS and triggered a major community consultation in 2006 on alternatives and amendments to the Priority Existing Chemicals scheme. The review resulted in twenty-three recommendations, which were grouped into five areas.4
- Better engagement and communication
- Enhancing mechanisms to identify chemicals of concern: new screening processes
- Improving efficiency
- Targeted assessments
- Increasing legislative reach: enhanced control powers
This exercise was ‘overtaken’ by the Productivity Commission Report - and subsequent to this, the development by NICNAS, after extensive consultation with stakeholders, of the IMAP process. It must be kept in mind, however, that the Australia-wide consultation exercise led to community expectations that the process to assess existing chemicals would be improved.
The ACTU believes that the options as described here do not adequately address the difficulties and inefficiencies of the current assessment of existing chemicals. See comments, below.
Further, the ACTU believes that the objectives as listed are insufficient. The Australian government needs to have as an objective the reduction of, with a view to eventually eliminating, the use of toxic substances. This is an objective of a number of international chemical regulatory systems (eg REACH; TURA)
- It is unclear what is meant by the ‘existing assessment process’ in this option. Is it the current legislated one (ie the PEC process), or is it the IMAP process, which, at the moment is primarily one of prioritization of AICS in preparation for assessments?
There are several problems with the current PEC process - inability to mandatorily call for information until a chemical has formally been declared a PEC; the legislated time frames; inability to do assessments other than full PEC assessments. Because of these and other issues, the very few PEC assessments done in the past 20 years and
the inconsistent implementation by the relevant ‘risk managers’ of the recommendations coming from these very thorough PEC assessments, it has been totally unsatisfactory. Consequently maintaining the current system is not going to achieve any of the objectives.
- Again this is unclear - when this refers to ‘non-PECs’ - does this mean chemicals that will not be part of the initial list as prioritized under the current IMAP process? Refer to previous recommendations regarding giving NICNAS capacity to do a number of different types of assessments, produce alternative information products, and also ability to issue mandatory calls for information in order to do these. Any of these may be all that would be required, or it may lead to a more extensive assessment.
The proposal to publish outcomes to ensure transparency is supported, as is the ability to undertake assessments of groups of chemicals where appropriate. The ACTU however, does not support a model like that used in New Zealand, however, where industry ‘self-assign’ chemicals to a pre-determined ‘group standard’. Consequently, this proposal is tentatively supported, however, more detail is required.Top of page
– The broadening of NICNAS powers to enable it to mandatorily call for information on certain chemicals beyond its very limited powers to do so is crucial if the system is to be improved in order to assess the many thousands of grandfathered chemicals listed on AICS - not only to be able to do so in support of C5. Clearly, there will need to be controls in place with regard to the confidentiality of some information, and the process should be as straightforward and the cost to industry kept as low as possible.
– A number of options for NICNAS to enable it to set conditions for new chemicals when issuing assessment certificates or listing chemicals on AICS were canvassed/proposed under the discussion on new chemicals. The ACTU considers it would be consistent for NICNAS to have similar powers for existing chemicals, to be used when necessary.
Consequently, the option of removing the power to impose conditions is not supported. Again the problem has been that even after extensive assessments of existing chemicals, the relevant risk managers, have not implemented NICNAS recommendations (or done so only after lengthy delays). Examples include the recommendation to reduce the exposure standard for formaldehyde; or the work done on lead in paints. As noted above, the union movement is most concerned with the lack of progress in the assessment of existing chemicals - the inadequate updating/amendment of necessary condition/controls and the lack of any objective to reduce use/introduction of chemicals known to be toxic (eg known carcinogens)
Point 1: The problem is not that there are/would be ‘no other means by which the risk (as identified by the assessment) can be addressed’, but rather that the appropriate risk managers have not consistently implemented the recommendations. While it has been acknowledged that ‘lack of means’ may be an issue for chemicals posing risks to the environment, it is not lack of means that has been the issue in the occupational health and safety area. Once there is clarity in terms of roles this may cease to be an issue. However, NICNAS should be given the legislative power to impose conditions - as per new chemicals - until such time as these are implemented by the relevant risk managers.
Point 2: The ACTU believes this is a power that NICNAS should have, particularly in cases where there is overwhelming international information on the seriousness of the hazard. Clearly there would be a requirement for consultation with other regulators and stakeholders, and an assurance of procedural fairness.
– The AICS should be updated not only in terms of prioritization for purposes of assessments, but also a ‘clean up’ through the removal of unused chemicals, in particular where the use of these chemicals has declined and ceased due to their toxicity and there are alternative chemicals available. In order to undertake both of these tasks, NICNAS requires information on use (volumes). The process should be done in such a way as to ensure that only chemicals that have not been used (or essentially not used) are removed, or at least placed on a separate list. Under the proposal it would be at least 5 years (more due to public notification, opportunity to comment, consideration of comment, decision-making) before any chemical would be removed from the AICS - if possible, this timeframe should be reduced in the case of toxic chemicals.
Once a chemical has been removed from AICS, should any company wish to re-introduce it, that chemical should be treated as if it were a ‘new chemical’ - ie through application for an assessment certificate, permit or other instrument under the Act. The ACTU notes, however, that there may be some issues here as if such chemicals are imported in ‘pre-mixed formulations’, unless they are hazardous, then we may not be able to have this information.
– this is a necessary consequence of any changes being made.Top of page
Part 7 – Post market monitoring and enforcement (Options D1-D3)D1
- The ACTU supports streamlining the secondary notification process - secondary notifications should only be required when new health/safety or environment information becomes available on a previously assessed chemical which may necessitate amending required controls or there is a significant change in proposed use. Increased volumes of ‘safe’ chemicals should not necessarily
trigger a secondary notification.
providing greater flexibility to NICNAS in how it would undertake a secondary notification would improve the current system in that it would allow for the organization to choose an appropriate level of assessment. However, there should be clear and achievable timeframes established for the completion of secondary notifications.
The ACTU agrees that providing information on a chemical’s function or use when adding it to AICS would certainly be positive in terms of clarifying obligations for other users with regard the need for secondary notifications.
– While there is a clear need for secondary notifications, we note again that a serious shortcoming of the existing system is that that when additional information (eg adverse effect reports, changes in use, international exposure standards, etc) becomes available for the vast majority of chemicals on AICS that have not been assessed, NICNAS cannot declare/require a secondary notification. The only clear thing that NICNAS can do is to declare the chemical a PEC - as noted above, a cumbersome and lengthy process, not suited to the immediate need to do something in such circumstances.
Consequently the ACTU strongly supports this proposed option, but the circumstances which could trigger a secondary notification should be expanded to also include other triggers - such as changes to overseas exposure standards, new research, etc. The ACTU supports the proposal that anyone can report adverse effects or any other relevant information to NICNAS (including the public). However, there needs to be much more detail on what the comprehensive system would involve, including information on how the APVMA system works, how responsive and comprehensive it is and any strengths and weaknesses it may have. Note that Recommendation 4.3 from the broad public consultation on the Existing Chemicals scheme was "Examine the feasibility of a nationally co-ordinated system of surveillance monitoring and post market reporting." This has been a long-standing concern of the general public.
–The ACTU supports the implementation of this option as providing a more comprehensive, contemporary and flexible compliance regime would increase the ability of NICNAS to more effectively monitor and ensure compliance.
Part 8 – Other reforms – release of information and confidential commercial information (OptionsE1-E2)Top of pageE1
- The ACTU supports this option, as provision of necessary information by NICNAS to other risk managers will increase their ability to fulfill their obligations; it does not seem logical that NICNAS is currently unable to share such information with other agencies. Any ‘commercially in confidence’ information supplied by notifiers to NICNAS should maintain its status with the other agencies - that is, it would not be released publically but used only in relation to ensuring compliance with conditions, monitoring, and so on. This change would increase protections to the public, workers and the environment. If there is such information that the risk managers felt needed to be more generally released to ensure management of risk, then this would have to be released - but after notification/consultation with the notifier.
- This option should be implemented - the ICNA Act should generally be amended to be consistent with contemporary standards, including those relating to confidentiality criteria, so long as this is done in such a way as to increase transparency. Apart from ensuring the Act is up to date, the need to comply with inconsistent requirements in different Acts can lead to confusion.
Part 8 – Other reforms – use of foreign schemes / international assessments (Options F1-F2)F1
– The ACTU supports increased utilization of overseas assessments on the proviso that the data contained in these can be properly accessed (for checking and monitoring) and
that NICNAS has the ability to require information specific to Australian use and conditions where necessary and include in the assessments. NICNAS has been doing a great deal of work in terms of facilitating use of as much of international assessments as is possible, and this work should continue. It is not acceptable in any way to the ACTU that Australia automatically accept the outcomes of international assessments ‘with closed eyes’ - increased use of assessments
is supported, this does not necessarily mean acceptance of outcomes
. If there can be some re-aligning of the process, a fast-tracking for chemicals with low hazard/risk in order to refocus more activity onto those with higher hazard/risk, then this should be explored, so long as we can have confidence in the integrity and appropriateness of outcomes.
Further, and most importantly, if there is to be a move towards increased reliance on overseas assessments of new chemicals with a view to facilitating registration for industry, then similarly there should be a corresponding increased acceptance of overseas introduction of limitations, restrictions and bans of existing chemicals.
– The ACTU is not contrary to better aligning Australia’s scheme with comparable international ones so long as any amendments/changes do not reduce the current levels of protection - but enhance them. This should be in addition to the goal of international harmonization and reduction of duplication and inconsistencies.
Part 8 – Other reforms – chemicals in articles (Options G1-G2)
This section highlights a potential gap - that is: how are chemicals which may leach from or otherwise be emitted from articles regulated? The union representatives on the NICNAS CEF have reported that this has been an issue of some confusion, and this confusion has been acknowledged by some sectors of industry. Even when the responsible agency is identified, the matter referred to it, too often no or little action results. This is clearly a problem which needs sorting out.
- The ACTU believes that a clarification of the role of NICNAS with regard to chemicals in articles needs be dealt with in the proposed manual, as well as a clarification of the role of other agencies, and a subsequent update of MOUs are important and should be done as a first step as soon as possible. However it appears that this may be a ‘gap’ in the current regulation of chemicals, and must be addressed by government.
- If the ICNA Act needs to be amended, it should be done so only after any gaps are identified and addressed - either in this or other pieces of legislation.
Part 8 – Other reforms – chemicals in cosmetics (Option H1-H2)Top of pageH1
- The ACTU does not support transfer of enforcement of the Cosmetics Standard
to the ACCC. As noted in the paper, this would lead to duplication and further, the loss of NICNAS expertise in the area of cosmetics. It is our preference that NICNAS maintain this responsibility. There may need to be some overall consideration of how cosmetics are currently regulated as there are overlaps (TGA, NICNAS, ACCC) as well as potential gaps.
- The ACTU supports the development of provisions specific to cosmetics (including potentially those listed in the Discussion Paper) into the ICNA Act - in consultation with stakeholders. It should be noted that although a product may be labeled a ‘cosmetic’ it can be extensively used in industrial settings.
Part 8 – Other reforms – Import and export of chemicals under the Stockholm and Rotterdam Conventions (Option I1-I2)I2
- It is crucial that whatever mechanisms are in or put in place to ensure Australia’s compliance with the Rotterdam and Stockholm Conventions are effective. The ACTU tends to support Option I2
as if this review results in NICNAS having increased powers to address ‘gaps’, then NICNAS should retain this responsibility.
Part 8 – Other reforms – Governance – Committees (Option J1)JI
- agree that this matter should be considered later - It should be noted that some of these committees are on-going (eg CEF, IGCC) and some established as needed (eg the NAG, the CAG). Consideration should be given to how and why these were established, effectiveness and so on.
Part 8 – Other reforms – Governance – Relationship with the Department of Health and Ageing (DoHA) (Option K1)K1
Top of page
A full list of all 2012 submissions can be viewed at June 2012 submissions to the review of NICNAS