Explanatory note
This note is not part of the regulations, but is intended to indicate their general effect.
Regulation 1 gives the Title of these regulations as the Health and Safety at Work (Hazardous Substances) Amendment Regulation 2017.
Regulation 2 provides that these regulations commence on 1 December 2017, which is when the majority of provisions of the principal regulations commence.
Regulation 4 amends regulation 2(2) (regulations that are to commence on 1 June 2018) by replacing an incorrect reference to regulation 4.3 with the intended reference to regulation 4.5, and by consequentially adding references to several specific provisions in the principal regulations that refer to regulation 4.5.
Regulation 5 makes consequential amendments to regulation 3 (interpretation) to support amendments made by other provisions. In particular, regulation 5—
amends the definitions of handle and transportable container:
inserts a new definition of portable tank.
Regulation 6 amends regulation 1.9(a) by correcting a reference to the capacity of the relevant substance. The effect of the amendment is that the regulations will not apply to the relevant substance when stored in specified small quantities (rather than large quantities).
Regulation 7 inserts new regulation 1.13 (refrigeration systems containing flammable gas refrigerants) to clarify the extent to which the principal regulations apply to refrigerators (and similar appliances) and refrigeration systems. This was previously unclear.
Regulation 8 amends regulation 2.5 (duty of PCBU to display signage: general duty) by clarifying the extent to which signage requirements apply to transit depots and premises used for milking animals. This clause also makes the reference to refrigerant substances consistent with other references in the principal regulations.
Regulation 9 amends regulation 2.6 (signage requirements for general duty) by correcting an incorrect cross-reference. The effect is to expand the circumstances in which certain signage requirements do not apply.
Regulation 11 amends regulation 2.9 (signage at workplace where milking animals are milked) to clarify the relationship between regulations 2.9 and 2.5.
Regulation 12 amends regulation 9.3 (class 1 substances generally to be under control of certified handlers) by adding new regulation 9.3(5)(c). The effect is that the relevant substances are not required to be under the personal control of a certified handler when being transported or when being loaded onto or unloaded from a transport vehicle. This is consistent with the limited role the principal regulations have in regulating the transport of hazardous substances (see regulation 1.6).
Regulation 13 amends regulation 10.10 (requirements for refrigeration systems containing LPG, propane, butane, isobutane, or other flammable refrigerant) by—
correcting a reference to the applicable AS/NZS standard:
making minor consequential amendments that support new regulation 1.13.
Regulation 15 amends regulation 10.31 (requirements for surface containers of up to 60 L) by making clear that the pooling substances referred to are of class 3 or 4.
Regulation 16 amends regulation 10.32 (requirements for surface containers of more than 60 L and up to 450 L) by making clear that the pooling substances referred to are of class 3 or 4.
Regulation 17 amends regulation 10.33 (requirements for surface containers of more than 450 L) by making clear that the pooling substances referred to are of class 3 or 4. In addition, new regulation 10.33(1A) is inserted, providing for the capacity of the secondary containment system where the pooling substances are in a portable tank.
Regulation 18 amends regulation 11.11 (duty to hold certain packages or transportable containers of class 3.1 substance in building or external storage area of certain type). The amendment to regulation 11.11(3)(a)(iii)(A) removes the reference to a provision of the relevant AS standard that must be complied with to avoid the storage requirements of regulation 11.11(1), but that is no longer applicable.
Regulation 19 amends regulation 12.13 (requirement to have secondary containment system for pooling substances) by replacing regulation 12.13(1)(a). The new paragraph makes clear that the class 5.1.1 substance that regulation 12.13 is concerned with are pooling substances.
Regulation 20 amends regulation 12.14 (requirements for surface containers of up to 60 L) by making clear that the pooling substances referred to are of class 5.1.1.
Regulation 21 amends regulation 12.15 (requirements for surface containers of more than 60 L and up to 450 L) by making clear that the pooling substances referred to are of class 5.1.1.
Regulation 22 amends regulation 12.16 (requirements for surface containers of more than 450 L) by making clear that the pooling substances referred to are of class 5.1.1. In addition, new regulation 12.16(1A) is inserted, providing for the capacity of the secondary containment system where the pooling substances are in a portable tank.
Regulation 23 amends regulation 12.38 (requirement to have secondary containment system for pooling substances) by replacing regulation 12.38(1)(a). The new paragraph makes clear that the class 5.2 substances that regulation 12.38 is concerned with are pooling substances.
Regulation 24 amends regulation 12.39 (requirements for surface containers of up to 60 L) by making clear that the pooling substances referred to are of class 5.2.
Regulation 25 amends regulation 12.40 (requirements for surface containers of more than 60 L and up to 450 L) by making clear that the pooling substances referred to are of class 5.2.
Regulation 26 amends regulation 12.41 (requirements for surface containers of more than 450 L) by making clear that the pooling substances referred to are of class 5.2. In addition, new regulation 12.41(1A) is inserted, providing for the capacity of the secondary containment system where the pooling substances are in a portable tank.
Regulation 27 amends regulation 13.12 (licence required for possession of certain class 6 substances) as follows:
subclauses (1) and (2) clarify references to the controlled substance licence that is required under regulation 13.12(3) by specifying the type of controlled substance licence:
subclause (3) corrects the language in regulation 13.12(3)(b) that is used to refer to regulations 13.9 and 13.11.
Regulation 28 amends regulation 13.13 (licences required for supply and acquisition of certain class 6 substances) as follows:
subclause (1) amends the heading for consistency with similar headings:
subclause (2) clarifies the reference to the controlled substance licence that is required under regulation 13.13(3) by specifying the type of controlled substance licence:
subclause (3) inserts new regulation 13.13(4), which provides alternative controls that remove the requirement for the substances to be under the control of the holder of a controlled substance licence.
Regulation 29 amends regulation 13.30 (requirement to have secondary containment system for pooling substances) by replacing regulation 13.30(1)(a). The new paragraph makes clear that the class 6 or 8 substances that regulation 13.30 is concerned with are pooling substances.
Regulation 30 amends regulation 13.31 (requirements for surface containers of up to 60 L) by making clear that the pooling substances referred to are of class 6 or 8.
Regulation 31 amends regulation 13.32 (requirements for surface containers of more than 60 L and up to 450 L) by making clear that the pooling substances referred to are of class 6 or 8.
Regulation 32 amends regulation 13.33 (requirements for surface containers of more than 450 L) by making clear that the pooling substances referred to are of class 6 or 8. In addition, new regulation 13.33(1A) and (1B) is inserted: new subclause (1A) replicates regulation 13.31(2) and 13.32(2) by lowering the required capacity of secondary containment where the pooling substances have lesser hazard classifications; new subclause (1B) provides for the capacity of the secondary containment system where the pooling substances are in a portable tank.
Regulation 33 amends regulation 13.39 (matters to be certified for hazardous substance location where class 6 or 8 substances are present) by replacing paragraph (f) with new paragraphs (f) and (fa), which more clearly and fully set out the content of current paragraph (f).
Regulation 34 amends regulation 14.26 (measures required to restrict fumigant emission from treated soil). The reference in regulation 14.26(2)(a) to the specific fumigant Tri-Form 60 is replaced with “the fumigant” for consistency with regulation 14.26(1).
Regulation 36 amends regulation 15.6 (application of subpart 2). New regulation 15.6(3) is inserted, and regulation 15.6(1) is consequentially amended, to clarify the extent to which subpart 2 of Part 15 applies to low-pressure fire extinguishers.
Regulation 38 amends regulation 15.21 (application of subpart 3). Subpart 3 of Part 15 applies to low-pressure fire extinguishers, and this amendment signals that certain provisions of subpart 2 also apply.
Regulation 39 amends regulation 15.29 (outlet connection for cylinder valves) by correcting an incorrect reference to a standard with which LPG cylinder valve outlets must comply.
Regulation 42 amends regulation 16.30 (requirements for UN approved containers) by inserting new regulation 16.30(4A), which makes clear that WorkSafe can perform the functions of a competent authority under the UN Model Regulations incorporated by reference into regulation 16.30. This is necessary because the UN Model Regulations do not merely impose duties: they involve regulator activity in order to be effective.
Regulation 43 amends regulation 16.36 (requirements for issue and renewal of in-service compliance certificates) by replacing a reference to complying with Schedule 24 generally with a reference to complying with applicable requirements of Schedule 24. Not all of Schedule 24 is applicable in this situation. The amendment aligns regulation 16.36(4) with regulation 16.36(3).
Regulation 45 amends regulation 17.6 (design, construction, and installation of above ground stationary tanks for hazardous liquids) by adding a new standard to regulation 17.6(1) that must be complied with.
Regulation 46 amends regulation 17.64 (service tank in stationary container system) by correcting an incorrect reference in regulation 17.64(2) to the stationary container system described in regulation 17.64(1).
Regulation 47 amends regulation 17.80 (records for stationary container systems) by replacing regulation 17.80(1)(a) to correct an incorrect description of what separation distances must be included in the site plan. This clause also amends regulation 17.80(1)(c) by replacing an incorrect reference to “place” with a reference to “workplace”.
Regulation 50 amends regulation 17.92 (validity of compliance certificate for stationary container system) by providing for the option of a safe work instrument specifying the period of validity of a compliance certificate.
Regulation 51 amends regulation 18.9 (handling, packaging, and storage of approved hazardous substances) by adding a further exception to the requirements in regulation 18.9(1). New regulation 18.9(2)(ab) allows a PCBU to use the holder of a controlled substance licence to handle (etc) the relevant substances.
Regulation 52 amends regulation 18.10 (handling, packaging, and storage of unapproved hazardous substances) by adding a further exception to the requirements in regulation 18.10(1). New regulation 18.10(2)(ab) allows a PCBU to use the holder of a controlled substance licence to handle or supply, etc, the relevant substances. In addition, a minor correction is made to regulation 18.10(1).
Regulation 53 amends regulation 18.12 (laboratory manager). New regulation 18.12(3A) allows a laboratory manager to supply or acquire certain substances by treating that manager as the holder of a controlled substance licence.
Regulation 54 makes a number of amendments to Schedule 1 (transitional, savings, and related provisions). The amendments are set out in the Schedule of these regulations.
Regulation 55 amends Schedule 13 (class 6.1 substances that require controlled substance licence) by—
amending item 9 by replacing the reference to “Ferafeed Paste” with a more complete and accurate reference to “Feratox pellets in Ferafeed paste”:
inserting new items 10 and 11, which describe 2 new substances that require handling only by the holder of a controlled substance licence.
Regulation 56 amends Schedule 26 (tracking of hazardous substances) by adding 3 new substances (in new items 5A, 5B, and 5C) to table 2 (other hazardous substances that require tracking).
The Schedule (see regulation 54) contains amendments to Schedule 1 (transitional, savings, and related provisions) as follows:
clause 1 (interpretation) is amended by—
amending the definition of 2004 Transfer Notice to make clear that the definition contemplates amendments to that notice made up to 30 June 2006:
inserting a new definition of 2006 Transfer Notice in support of new clause 40A of Schedule 1.
new clauses 33A to 33F are inserted into Schedule 1. The new clauses provide as follows:
new clause 33A provides for compliance plans for tank wagons that were in force immediately before the commencement date. Those compliance plans continue in force on and after that date and, along with certain provisions of Part 16 of the principal regulations, form a compliance option for the relevant duty holder:
new clauses 33B to 33F provide for the development of new compliance plans for post-commencement use of tank wagons designed and used as fertiliser loaders and aircraft refuellers (loader-refuellers). These provisions replicate existing clauses 42 to 44 of Schedule 1, which apply to existing stationary container systems, and provide as follows:
new clause 33B requires the relevant PCBU to comply, in relation to an existing loader-refueller, with either Part 16 or a compliance plan approved under new clause 33D:
new clause 33C provides how the PCBU must develop a compliance plan and give it to WorkSafe:
new clause 33D provides for WorkSafe’s approval of the compliance plan:
new clauses 33E and 33F make further provision for tank wagons to which either new clause 33A or new clauses 33B to 33D apply as follows:
new clause 33E sets out the way in which regulation 16.36 (requirements for issue and renewal of in-service compliance certificates) applies to those tank wagons:
new clause 33F provides for an additional in-service compliance certificate where, after repair, alteration, or accident, the tank wagon no longer complies with the compliance plan or new clause 33E.
new clause 40A is inserted, which provides that an existing stationary container system that complied with design and manufacture requirements immediately before the commencement date, and that continues to be compliant, must be treated as still being compliant on and after commencement.
minor amendments are made to clause 42 (existing stationary container systems) for the purpose of clarification.
clause 43 (existing stationary container systems: preparation of compliance plans) is amended to simplify the process of preparing a compliance plan.
new clause 44A (existing requests for approval of compliance plans) is inserted, which continues pre-commencement requests for approval of compliance plans as requests for approval under clause 44. This continuation occurs if the requests for compliance plans were made in accordance with the Hazardous Substances and New Organisms Act 1996 (HSNO) and were received but not determined by the Environmental Protection Authority (EPA) before the commencement date. WorkSafe must determine the application under the principal regulations, may ask the applicant for additional information, and may refuse to approve the plan if the information is not given.
clause 50 (approved compliance plans for existing secondary containment systems) is amended by changing a date in the definition of existing stationary tank or process container in clause 50(3). The effect of the change of date is to make the pre-commencement compliance referred to more recent, and of a higher level, so that treating the system as compliant on and after commencement is appropriate.
new clause 51 (existing applications for approvals, certificates, and other matters) is inserted, which provides for the continuation of a number of pre-commencement applications as corresponding applications under the principal regulations, as follows:
the pre-commencement applications and the corresponding post-commencement applications are set out in the table in new clause 51:
pre-commencement applications must be treated as corresponding applications under the principal regulations if, before the commencement date, they—
have been made in accordance with the HSNO Act; and
have been received but not determined by the EPA or other decision-maker:
the decision-maker must determine the relevant application under the principal regulations, may ask the applicant for additional information, and may refuse to give or issue the approval, certificate, or other matter if the information is not given.