PDF printable version of NICNAS Community Engagement Forum (CEF) submission (PDF 124 KB)
August 3, 2012
To the Review team
The Community representatives of the NICNAS Community Engagement Forum (CEF) welcome the opportunity to provide this submission to the Review of the National Industrial Chemicals Notification and Assessment Scheme.
The CEF was established in 2003 initially as a mechanism to assist NICNAS address aspects of the community’s right to know in relation to the control and use of industrial chemicals. It meets regularly, and has become the mechanism the organization has for consulting and engaging with the community on policy and on the ramifications of industrial chemicals on public health, worker health and the environment.
It is the view of the CEF that NICNAS must be supported in the work that it is doing to ensure that industrial chemicals, both new and ‘existing’ are properly assessed to ensure that the risks posed to the Australian community (public and worker) and to the environment are minimised.
The CEF would also wishes to commend NICNAS in its ongoing efforts to ensure ongoing engagement with the community through its ongoing support of the CEF and other tripartite working groups.
The Community members of the CEF:
Dr Liz Hanna (PHAA) & Dr David Oakenfull (Choice) [Representing Public Health]
Ms Jane Bremmer & Ms Jo Immig (National Environmental Consultative Forum)
[Representing Environmental Standards and Interests]
Ms Pamela Grassick & Ms Renata Musolino (ACTU) [Representing Worker Health and Safety]
Member, NICNAS Community Engagement Forum (CEF)
c/o OHS Unit,
54 Victoria Street
Carlton South VIC 3053
03 9659 3571
03 9639 0408
Submission in response to the Review of the National Industrial Chemicals Notification and Assessment Scheme Discussion Paper
The Community Engagement Forum (CEF) was established in 2003 initially as a mechanism to assist NICNAS address aspects of the community’s right to know in relation to the control and use of industrial chemicals. It meets regularly, and has become the mechanism the organization has for consulting and engaging with the community on policy and on the ramifications of industrial chemicals on public health, worker health and the environment.
The CEF is broadly supportive of NICNAS and its efforts to improve the regulation of industrial chemicals in Australia. The CEF has been critical at times of the Government’s under-resourcing of NICNAS which has greatly impacted on their ability to implement necessary reform in this area.
While the CEF supports reforming the complexity, confusion and duplication that exists within the state and federal system that governs chemicals, we strongly oppose any reform which reduce protection or lead to an increase in risk to public, worker or environmental health and safety.
In particular, we believe that the system currently does not have sufficient emphasis on reducing and eliminating known toxic chemical and expediting the introduction of safer chemicals.
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Part 4—The regulatory framework for industrial chemicals (options A1–A3)
The CEF supports option A2 with minor enhancements. We also believe that there are benefits in Options 1 and 3.
A1—The development of such a manual would be useful to both industry (particularly small business) and 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.
Whilst some of this information has recently been addressed by NICNAS as a result of recommendations of the Existing Chemicals Review with the publication of a Who’s Who in Australian chemical regulation and recently put on the NICNAS website, such a manual would be valuable in detailing the risk assessment requirements that introducers of industrial chemicals need to provide to NICNAS as well as providing transparency for the public. As other jurisdictions such as Japan, make publicly available their risk assessment methodologies, so too should an OECD nation such as Australia.
This was a recommendation of the ECR and the benefits to NICNAS would be in improved assessments and subsequent public health and environmental outcomes, particularly if NICNAS can require assessment data related to endocrine disruption, children’s (and other vulnerable sub populations) environmental health assessments, climate change impacts, chemical fate and disposal assessments and other long-term environmental and public health considerations. It is important in our opinion that NICNAS be supported with increased data gathering powers and such a manual could provide up front requests to Industry about the level of data expected by NICNAS in chemical assessments. There is great opportunity to improve chemical assessments in Australia through such a manual.
—The current role of the SCOC is a limited one (to oversee the implementation of the Productivity Commission recommendations). It is not a forum for discussion and consideration of broader chemical issues, nor are bodies such as NICNAS and SafeWork formally represented. Stakeholders are also formally unrepresented except for occasional invitations to participate on narrowly defined matters.
The CEF supports the establishment of a ‘cross portfolio group’. It should, however, have a broader remit than the current role of the SCOC, as suggested by the Discussion Paper. Areas that we consider to be of particular importance are:Top of page
- Consideration of overall policy issues, in particular development of proposals that would incorporate the “precautionary principle” into appropriate legislation (as in the European Union’s REACH system).
- Ensuring that prompt action is taken when new science reveals previously unknown risks from exposure to chemicals in current use.
We would emphasise that the role of the SCOC has been limited to overseeing the implementation of the Productivity Commission’s recommendations as accepted by Government and that the emphasis has been on ‘competitiveness and productivity’, not the protection of public health and safety or the environment. We would also remind the Minister for Finance and Deregulation and the Minister for Health that Governments and Regulatory Authorities exist solely for the purpose of serving the needs of the population they represent, that is, the entire Australian Community. Whereas part of that role is to keep the economy functioning, their primary responsibility is to provide public goods, such as protecting the health of the population and environments in which they live. Endorsing decisions that amplify health risks runs counter to this fundamental entrusted responsibility.
Perceptions of the relative prioritisation of these responsibilities can be skewed by the influence of lobbyists. It must be acknowledged that industry lobbyists are well organized, well-funded and this well-oiled machine has gained considerable traction. In contrast, lobbying to protect health and the environment largely falls to volunteer public interest groups, who do not enjoy the equivalent luxuries of funded full-time positions and the capacity to develop expertise, glossy briefs or hire expensive consultant experts to support their efforts. The Union movement is the only ‘stakeholder’ that can fund policy activities to some extent. Advocates for the protection of general population health (e.g. vulnerable groups), and the environment have no funding source to support their activities. It must also be noted that these groups are not protecting vested interests—but rather advocating so that governments and regulatory authorities undertake their DUTY to protect ALL Australians, including the non-represented, the voiceless and future Australians. It is essential, therefore, that any new ‘cross portfolio group’ have formal structures in place to ensure that community organisations promoting consumer safety, public health and the environment are also heard, their concerns considered and, where appropriate, acted upon.
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Australia is a signatory to a number of international conventions related to chemicals management such as RIO, Bahai and SAICM and therefore has a responsibility to provide for equitable and resourced representation of civil society so as to participate in the policy-decision making relating to chemical safety and management in Australia. Any overarching committee would need to support international standards for community engagement and the CEF Community Engagement Charter was developed to provide NICNAS and the DoHA with such advice and should therefore be utilized in relation to this recommendation.
—Given that NICNAS has limited powers and depends on other agencies to implement its recommendations, it is very important that at the MOUs be strengthened and adhered to. 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. It is imperative that any MOU arrangement has the representation and support of the Ministries for Health, Environment, and Local Government.
Part 5—New industrial chemicals (options B1-B6)
The CEF supports the listed ‘objectives for reform’ with the following provisos:
- Protection of public, worker and environmental health and safety must be the most important objective. This is not to be sacrificed to the desire by the government and industry to focus on ‘enhancing competition … minimizing the cost of regulation to industry.’
- 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.
The CEF would also ask the Review to note that there have been significant positive reforms within the system which should not be undone. This included actions by NICNAS (in consultation with stakeholders) to:
- *[sic] introduce “shortcuts” for industry such as the category of LRCC, which made introduction easier and less costly, and
- efforts to access sufficient information about assessments done by foreign governments, including entering into agreements.
—the CEF supports harmonization with overseas schemes if specific Australian conditions and uses are taken into account and where sufficient information and data to ensure that the overseas scheme is adequate is available. We would particularly support initiation of a process whereby restrictions imposed on usage of a particular chemical in a comparable jurisdiction automatically triggers the same restrictions here. Such restrictions could be provisional and subject to review by NICNAS or other responsible authority.
Harmonisation should not result in reduced chemical assessments and associated risk management advice already existing in Australia unless publicly demonstrated to be justified. Furthermore, acceptance of overseas data MUST include acceptance of risk management advice and decisions.Top of page
—The CEF supports exemptions where these are:
- evidence-based, and
- have no negative impact on public, environmental and worker health and safety.
Absence of evidence of harm cannot be taken to mean that there is no potential harm. Decisions on exemptions must be based on evidence. It is concerning to the CEF that this Review has relied on the advice of the LRCC review report which did not engage civil society (despite originally be required to) and without any data to justify the claims that have been made. A full consideration of the LRCC project, including data on the volumes and types of chemicals involved and the benefits to public health and environment, must be undertaken. Such evidence is urgently needed to justify such exemptions before acceptance of industry requests is granted ahead of this public right to know about the LRCC scheme.
—The CEF agrees that NICNAS should be able to refuse applications with missing information. This is a fundamental requirement for any government regulator and there is a community expectation that NICNAS already holds these powers.
—The CEF supports NICNAS being granted that power to refuse an assessment certificate if the introduction of the chemical poses an unacceptable risk to the public, workers or the environment.
The CEF supports this option, as it ensures that necessary control measures are in place from the moment the chemical is approved for use in Australia. 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.
—If NICNAS has determined that controls are needed for the safe use of a chemical and these controls have not been implemented by the relevant risk managers, then these controls must either:
- carry over to AICS, or
- the chemical should not be listed on AICS.
If options under B4 are implemented, no chemical should be allowed to be introduced in the first place unless adequate conditions have been imposed—either by NICNAS or by other risk managers at time of introduction.
—Agreed, any necessary consequential changes following changes to legislation to progress above options must be made to ensure fairness, etc .
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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.
Any ‘conditions of control’ must be evidenced and proven to the satisfaction NICNAS and DoHA for the long-term protection of public health and the environment. This may require cross-sector and inter-agency involvement with other regulators and civil society input and representation.
Part 6—Existing industrial chemicals (options C1-C6)
It is in the area of Existing Chemicals that stakeholders have the greatest concerns. 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.
Although this review was ‘overtaken’ by the Productivity Commission Report and the eventual IMAP process (which involved extensive consultation with community and industry representatives), it needs to be kept in mind that the Australia-wide consultation exercise led to community expectations that the process to assess existing chemicals would be improved.
The options described in the paper do not adequately address the difficulties and inefficiencies of the current assessment of existing chemicals. As well, 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 (e.g. REACH; TURA)
Any reform in the area of existing chemicals must acknowledge that Australia is at an international disadvantage because of the failure to require volume and use data from industry when the scheme was established. The broad and far reaching unknown impacts for the Australian community and environment remain as a result of this lack of critical exposure data. Any reform must aim to redress this.
—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; and 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.
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Consequently maintaining the current system is not going to achieve any of the objectives and these problems must be addressed, including giving NICNAS the power to require a mandatory call for information related to existing chemicals.
—The proposal to publish outcomes to ensure transparency is supported, as is the ability to undertake assessments of groups of chemicals where appropriate. However it is vital that NICNAS retains the powers to undertake necessary cradle to cradle chemical assessments.
—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.
—This option is not supported. Even after extensive assessments of existing chemicals, NICNAS has made recommendations that were not implemented by the relevant risk managers. 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. It would be consistent for NICNAS to have similar powers for existing chemicals, to be used when necessary.
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. While in the longer term, once there is clarity in terms of roles, this may cease to be an issue, in our view, 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. This must include the ability to annotate AICS.
NICNAS should maintain the power to remove a chemical from AICS, 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. Top of page
—Where possible, 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 10 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 introduce it, that chemical should be treated as if it were a ‘new chemical’—i.e. through application for an assessment certificate, permit or other instrument under the Act.
—this is a necessary consequence of any changes being made.
Part 7—Post market monitoring and enforcement (Options D1-D3)D1
—The CEF 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 CEF agrees that proving 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 (e.g. 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 necessarily suited to the immediate need to do something in such circumstances.
Consequently the CEF 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 CEF supports the proposal that anyone can report adverse effects or any other relevant information to NICNAS (including the public).
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—The CEF 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 (Options E1-E2)E1
—The CEF supports this option, as provision of necessary information by NICNAS to other risk managers will increase their ability to fulfil their obligations –it does not seem logical that NICNAS is currently unable to share such information with other agencies. The CEF would assume that any ‘commercially in confidence’ information supplied by notifiers to NICNAS would 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.
—The ICNA Act should generally be amended to be consistent with contemporary standards, including those relating to confidentiality criteria. 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
—As stated previously, the CEF 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. It is not, however, acceptable in any way that Australia automatically accept the outcomes of international assessments without scrutiny of the data.
—The CEF 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)
There is an ongoing issue with chemicals in articles. The CEF does not believe that the current regulatory arrangements adequately cover the regulation of chemicals in articles. The options in the Discussion Paper, while positive, also do not adequately address community concerns with articles, or chemicals in articles, particularly when these are emitted from the articles.
The CEF understands that there is emerging international work in the area of assessment of chemicals in articles and chemical compounds. Australia needs to ensure that we participate in and keep up with this work, and utilize it as much as possible.
—The CEF 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, more than simple ‘clarification’ is needed—the CEF believes there is a clear gap in Australia’s regulatory scheme specifically in relation to articles as well as for multi-chemical products.
—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)H1
—The CEF does not support transfer of enforcement of the Cosmetics Standard to the ACCC. This would lead to duplication and the loss of NICNAS expertise in the area of cosmetics. It is our preference that NICNAS maintain this responsibility. Top of page
—The CEF 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 labelled 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)
What is of the utmost importance it that Australia ensures that we have the proper mechanisms so that we comply with the requirements of the Rotterdam and Stockholm Conventions. The CEF supports 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)
The CEF agrees that this should be considered later. The CEF believes that the sectors currently represented on the CEF cover the role of civic society engagement adequately and should be supported and strengthened. There is a need to provide stronger federal environment agency involvement on working committees and groups.
The CEF supports the concept of a strategic advisory committee to advise the Director of NICNAS.
Part 8—Other reforms—Governance—Relationship with the Department of Health and Ageing (DoHA) (Option K1)K1
A full list of all 2012 submissions can be viewed at June 2012 submissions to the review of NICNAS
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