Broken Promise and Broken Toxic Chemicals Reassessment Process

The cost of the Government’s broken promise on highly toxic organochlorines is now clearer following ERMA’s initial reassessment of one of these chemicals.

It promised more than a decade ago when in opposition to have the reassessment of all organochlorines, as a group, made a statutory priority for ERMA but has failed to do so. In absence of any such directive, ERMA has commenced reassessing organochlorines one by one.

Yet when confronted with its first such reassessment, the pesticide endosulfan, ERMA lacks local information on risks and benefits due to an absence of monitoring, does not consider synergistic effects, and presumes a particular baseline for comparing benefits without evaluating other modes of agricultural production. Such issues are critical because of the extraordinary arrangements built into the HSNO Act 1996.

The Act provided for all 110,000 chemicals used in the country in 2001 to be simply deemed to comply with HSNO at the point they became regulated under it. None were actually assessed to see if they would pass under the new legislation. Once a HSNO approval was given in this way, the Act provides a perpetual consent that can only be revoked under a very costly reassessment process. That process requires the taxpayer or an affected party to pay to prove that a substance is too risky, not the promoters to prove that gains outweigh the risks.

Endosulfan is from the same family of bioaccumulative and endocrine disrupting chemicals as DDT and it has already been banned in 55 countries. It has also been proposed by the EU to be listed under the Stockholm Convention which, if accepted, would force New Zealand to also ban it. ERMA’s draft recommendations specify simply a tightening of restrictions on the use of endosulfan.

If on its first organochlorine reassessment, the statutory process that has been billed as the gold standard for regulation of serious environmental risk results in an inadequate review, then at least one of the following applies:

• The Government has not provided sufficient funds to make the reassessment process work as legislators intended;
• ERMA’s interpretation of the Act or allocation of its funding is unreasonable;
• Reassessment is an ineffective approach to re-regulation of toxic substances.

It is already evident that placing the burden of proof on society is unfair and so morally broke. What now needs to be determined is whether the reassessment process is also financially broke, ERMA too weak, and/or the law is insufficiently effective.

Had the Government kept its promise to force an organochlorine reassessment much earlier, New Zealand need not have waited all these years to find out that something is broken and needs fixing. Nor would people and the environment have been needlessly exposed in the meantime to the unreasonable risk activities ERMA has already identified for endosulfan and those that are almost certainly present and still legal to undertake using other organochlorines.

The case for a rewrite of the law governing reassessments is now all the clearer. A first requirement is that each approval of a substance used outside laboratories specifies an expiry date. Promoters would still have the ability to apply for a fresh approval if ERMA does not grant a rollover at the time of expiry, but the chemical would then need to actually pass the tests HSNO sets rather than the taxpayer having to pay to prove it is too risky.

While this more detailed review for New Zealand conditions is being undertaken, it makes sense to leverage off the standards set by the European Commission (EC). Europe will tend to be the global driver of toxic chemical standards through the new European Chemicals Agency and it is also New Zealand’s largest market for food exports. If New Zealand commenced a programme to amend all current approvals so as to align the conditions of use to match those set for Europe where these are higher, and update them as Europe does, it would progressively gain stricter standards for the protection of people and the environment.

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Note: The Promise to Reassess Organochlorines as a Group

During the debates preceding the passage of the HSNO Act in 1995 and 1996, the Government (then in opposition) made a specific promise with respect to reassessment of organochlorines. Then opposition environment spokesperson Pete Hodgson stated:

“In respect of organochlorines, Labour tentatively looked at the idea of including organochlorines in this legislation as the first significant reassessment task for the Environmental Risk Management Authority. … We know that organochlorines are a major problem. We know that the Ministry for the Environment has been stopped in its tracks in recent days in its investigations into organochlorines by fairly truculent behaviour from some Ministry of Agriculture officials. We gave that one up, but we say now publicly that that is what the Environmental Risk Management Authority should do first, and, certainly, if it has not done it by the time of the first rewrite of this legislation, we will be wanting it to go in.” Hon Pete Hodgson, Hansard, Report of Committee on the Hazardous Substances and New Organisms Bill, 19 December 1995

The following year, in a subsequent section of the debate, he also stated:

“Some of the bits are missing, needless to say. The Opposition tried and failed to have organochlorines reassessed as a group. We thought organochlorine pesticides were a good place to start and we wanted to write that into the legislation. There was precedent. When the Resource Management Act was passed there was a national policy statement that said: ‘You are going to come up with a coastal management plan; that is job one, and we are putting it in the law to tell you where to start so that you know which phone call to make first.’” Hon Pete Hodgson, Hansard, Hazardous Substances and New Organisms Bill: In Committee, 23 May 1996.

The hazardous substances side of HSNO was extensively amended in 2005.