Joint ACTU/VTHC/QCU/AMWU submission

Public submissions to the review of the National Industrial Chemicals Notification and Assessment Scheme.

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Better Regulation Ministerial Partnership
Joint ACTU SUBMISSION1

December 14, 2011.

The ACTU welcomes the opportunity to submit a short paper to what we understand to be the preliminary preparatory work for the Better Regulation Ministerial Partnership prior to development of a discussion paper.

Please note that this is not a comprehensive submission - rather it is a short paper to highlight some of the union movement's concerns with the less than optimum approach to exposures of workers to chemicals at work and a few examples of some gaps in the current regulatory framework. In the second half of this paper, some NICNAS specific issues are dealt with. The ACTU notes that by limiting the inquiry to NICNAS and 'industrial chemicals' (as defined in our system) does not allow for a thorough consideration of whether Australia's current regulatory system provides workers with protection against exposures to chemicals in the workplace.

It is a premise of this brief submission that Better Regulation refers to a regulatory system that decreases the burden of ill health and environmental damage as a consequence of the occupational use of chemical substances – not simply one of 'deregulation' or of a 'reduction of regulatory burden'. This requires a comprehensive approach that integrates occupational and environmental concerns and the establishment of systems to collect data to assist in the prioritisation of regulatory and compliance efforts.

The Productivity Commission (PC) study into Chemicals and Plastics Regulation in Australia report concluded that Australia's "current regimes are broadly effective in managing risks to health and safety, but are less effective in managing risks to the environment and national security"2

However, it is the ACTU's contention that due to the paucity of Australian data, it is not possible to confidently make the statement "current regimes are broadly effective in managing risks to health and safety…." We have no evidence about how many people are currently occupationally exposed to chemical substances which pose a risk to their health and safety. There are some surveillance schemes (eg incomplete schemes for dermatitis and asthma) for disease outcomes, but the only truly national system is the Australian Mesothelioma Registry. The current situation could be summarised by saying that the absence of evidence does not and cannot equate to evidence of absence.

Objectives of the BRMP

  1. Role and functions of NICNAS to extent that reflect international best practice
  2. Governance and consultation arrangements
  3. Efficiency and effectiveness of NICNAS operating arrangements having regard to protection of human and environmental health, management of risk and compliance costs for business
  4. Implications for resourcing functions currently cost recovered.

Objective 1: Role and functions of NICNAS to extent that reflect international best practice

We have not limited our comments to NICNAS as the current Australian approach to regulation of chemicals in an occupational setting is beset by challenges, some intrinsic to the issue and others due to an uncoordinated chemical by chemical approach and a complex regulatory framework. Under the current regulatory arrangements, despite the technically excellent work undertaken by NICNAS, it is not possible for Australia's regulatory system to Freflect international best practice'.

The consequences of the current complex framework of regulation is that it is difficult to understand, difficult to implement and difficult to enforce. The best efforts by specific agencies and their staff cannot overcome flawed architecture of the system. The outcomes for workers are also deeply flawed, with the level of protection afforded by the system varying according to how a chemical is designated, and where in Australia the worker lives.

1This submission has been jointly prepared by the Australian Council of Trade Unions (ACTU), Victorian Trades Hall Council (VTHC), Queensland Council of Unions (QCU) and the National office of the Australian Manufacturing Workers Union (AMWU). Thus, any reference to the 'ACTU' in this paper is to be taken to include also the VTHC, the QCU and the AMWU.
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2From 'Key Points' Chemicals and Plastics Regulation Productivity Commission Research Report July 2008 http://www.pc.gov.au/projects/study/chemicalsandplastics/docs/finalreport



According to the Government's Standing Committee on Chemicals3, there are nine Federal Ministries involved in the regulation of chemicals and plastics. Of course this division of responsibilities has developed from differences attributable to sector, type and use of chemical etc. The usage of most chemical substances predates the introduction of various regulatory frameworks which are based on a risk management approach e.g. the registration of agricultural hazardous substances for specific uses, the classification of substances by Safe Work Australia based on the properties of the chemical substance, the assessment of risk by NICNAS for new industrial chemicals (that is, those not listed on AICS) or the measurement of emissions into the environment of 93 selected substances by National Pollution Inventory.

There are almost 40,000 industrial chemicals listed on AICS which have been "accepted" for use, which were listed at the time the AICS was established. The vast majority of these have not been assessed by NICNAS, although it was intended that the existing chemicals of concern would be properly assessed in a manner suitable to the Australian context. At the time the Notification and Assessment Act was introduced, and AICS established, information on quantities and use of chemicals listed was not required. It is still not required and not possible for NICNAS to easily gather this information. NICNAS is currently required to carry out its work with 'one hand tied behind its back'.

As a nation we have adopted an approach to chemicals in the occupational setting which is, at best, broadly based on an assumption of "innocent until proven guilty". In some cases, even after there has been overwhelming evidence that a chemical is toxic, insufficient action is taken. This is far from international best practice. The assessment of the chemicals in use, substance by substance, is clearly unmanageable by any one agency.

Other countries grappling with the same challenges are various mechanism such as prioritisation of chemicals of high concern, toxic use reduction, and a "no data no use" approach. Toxic Use Reduction (TUR) is best showcased in Massachusetts, USA. These laws use a combination of regulatory and voluntary measures and have been effective in significantly reducing use.

The TUR approach contrasts with the Australian regulatory regimen key areas
  1. Reduction or elimination of USE where "use" refers to feedstock, usage within the enterprise and emissions. This avoids the need for end of pipe pollution control. Compare this with the Australian National Pollution Inventory, where emissions over 10 tonnes annually are counted and reported to the government, there is no need to reduce emissions
  2. Reduction or elimination of priority chemicals based upon the inherently hazardous nature of the product compared with the Hazardous substances regulations which are based on a risk management approach to specific substances which are classified by the manufacturer.
  3. Planning is mandated, action on the plans is voluntary
  4. There is considerable technical support to industry.
This approach is gaining support in Australia not only amongst unions and other NGOs. At the recent 2011 Australian Institute of Occupational Hygienists conference in Brisbane (3-7 December, 2011) Dr Tim Driscoll, an Associate Professor at the University of Sydney's School of Public Health, said an estimated 5,000 cases of workplace cancer occurred each year in Australia. He urged Australia to adopt regulations along the lines of the Toxic Use Reduction Act which in Massachusetts had triggered a 50% decline in hazardous substance releases and 21% fall in the amount used in production from 2000 to 2008. According to Dr Driscoll, '"An approach like TURA encourages industry to decrease the use of hazardous substances in general. This should decrease the levels and likelihood of exposure to workers as well as the amount of hazardous substances in the waste the industry produces.'

3SCOC website http://www.innovation.gov.au/Industry/ChemicalsandPlastics/SCOC/Pages/default.aspx


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Prioritisation of chemicals, based upon the inherent properties of substances is the basis for the European Unions REACH system ie "no data no use". The EU is developing a list of priority substances - substances of high concern.

After a wide-ranging public consultation exercise on existing chemicals, a consideration by the Productivity Commission and also representations to relevant ministers by the ACTU and community groups, there is now a commitment to ensure funding to NICNAS to initiate a 'fast tracking' to prioritise approximately 3000 chemicals over the next three years. However unlike REACH, there is no regulatory link between NICNAS and Hazardous Substances Regulations. There is only a Memorandum of Understanding between NICNAS and SWA (and other regulators). The ACTU believes that this arrangement is clearly inadequate.

Examples:
  1. The incomplete and patchy adoption of recommendations from the 2006 NICNAS Priority Existing Chemical Report for Formaldehyde: The NICNAS PEC recommended that formaldehyde be reclassified as a Category 2 carcinogen and that the occupational exposure standard based on the hazard assessment for formaldehyde be lowered to 0.3 ppm 8h TWA & 0.6 ppm STEL. The Safe work Hazardous Substances Information System (accessed10/11/2011) listed Formaldehyde as a Category 3 Carcinogen, in contrast to the Exposure standard listing formaldehyde as Category 2 carcinogen but listing the exposure standard as 1 ppm TWA and 2 ppm STEL. This example is provided to highlight the difficulties posed by both the silo approach of chemical regulation in the occupational setting for government agencies, and the inability of NICNAS to be able to put in place clearly justified controls centrally.
  2. NICNAS has done a great deal of resource intensive work over a number of years assessing a number of perfluorinated chemicals. These are used in a variety of applications, including those where stain repellency and water repellency are desired. They are effective in these applications because the C-F bond is strong and relatively resistant to degradation. However, this resistance to degradation also leads to the major concern with perfluorinated chemicals – their persistence in the environment. As well at this environmental persistence, long-chain PFCs have the potential to bio-accumulated in animals and humans. Studies have shown that with certain PFCs, such as perfluorooctanesulfonate (PROS) and perflourooctanoic acid (PFOA) have health effects on animals including reproductive toxicity, toxicity to the liver and the potential for carcinogenicity.

    There has been a lot of action globally to phase out these chemicals and to replace them with better alternatives. A number have been designated as Persistent Organic Pollutants (under the Stockholm Convention), subjecting them to restrictions on production and use.

    While Australia is a signatory to the Convention, the ratification of the listed chemicals depends on a long process, including consideration on a chemical by chemical basis, the undertaking of an RIS, etc. Once the decision is made, then it is possible under the current regulations for NICNAS to take action.

    The US EPA took action in 2002 and 2007 which effectively bans the use of PFOS and related chemicals. The European Union similarly issued a directive in 2006. In the meantime, NICNAS has issued four alerts on PFOS (in 2002, 2003, 2007 and 2008). These recommended that PFOS and related chemicals be restricted to only essential uses. Two alerts have been issued for PFOA. NICNAS has been monitoring the use of these PFCs and has determined that their use is decreasing. However, the problems include that NICNAS does not have the power to gather this information (on use and on use by downstream users), nor does it have the power to restrict or ban these chemicals. In order to achieve the outcomes that it has, NICNAS has had to expend a great deal of time and resources.

    In Australia, the restriction of chemicals on environmental grounds is extremely difficult as there is currently NO appropriate regulatory instrument and no proper risk management framework. While this was recognised by the Productivity Commission Report (in Recommendations 9.1, 9.2 and 9.3), and there has been some work to address this, the gap remains.
  3. A further example of this issue are the recommendations made in the draft PEC report for Hexabromocyclododecane (HBCD), one of a number of polybrominated flame retardants (PBFRs),released for public comment in November 20114. Even though HBCD is a Category one in terms of both acute and chronic toxicity, the only possible recommendation at this stage has been made to the Standing Council for Environment and Water – to develop an Action Plan. "The Action Plan should constitute a national approach involving federal, State and Territory agencies and should address the introduction of HBCD into Australia as a chemical entity in products and in articles".
  4. Another example of the siloed and disconnected approach to the regulation of chemicals in the occupational setting is the National Pollution Inventory. Facilities must report their emissions of more than 10 tonnes annually of the 93 substances on the inventory. There is no regulatory like between NPI and NICNAS, Safe Work Australia or the APVMA or consistency of classification of chemical hazards. For example of the 93 substances 26 are described has having some carcinogenic properties.

    Safe Work Australia writes Model Regulations for carcinogen usage inside the work site whilst the NPI records emissions of over 10 tonnes of 26 substances with some carcinogenic potential. The threshold of 10 contrasts with the threshold for Higher Hazard Substances (HHS) is 1,000lbs/year or 460 kgms.

    Of concern is that evidence from the United States suggests that industrial facilities that perform poorly under the EPAs Clean Air Act are also facilities that have come to the notice of the OSHA for poor health and safety performance.5
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The lack of Australian data on either exposures or uses of chemicals is highlighted by the difficulty in estimating the number and future number of occupational cancers. Australia does not have the equivalent of CAREX CanadaCarex Canada6 which could be used to better inform us on an estimate of work related cancers. The Health and Safety Executive in UK is funding research which includes the development of a methodology to estimate the future burden of occupational cancers. Australia sadly lacks equivalent data which could be used to identify where these potential risks exist.

Objective 2: Governance and consultation arrangements

Governance: The Commonwealth Government has placed NICNAS under the Department of Health and Ageing, signalling that its role is primarily that of protecting the health of Australians and our environment. As discussed above, the ACTU believes that NICNAS requires additional powers in order to carry out what it needs to do.

Consultation: NICNAS has for some years ensured there is ongoing consultation with stakeholders through the formalisation of the IGCC and the CEF. The various implementation steering groups, established to bring forward changes to the scheme (such as Low Regulatory Concern Chemicals, or the review of the Existing Chemicals Program) have been tripartite, with stakeholders nominating representatives onto the various 'Technical Working Groups'. NICNAS also ensures that any 'advisory groups', established to explore emerging issues (such as the addition of cosmetics into the scheme, or the regulation of nanomaterials) have stakeholder as well as expert members.

Any proposed changes to the scheme are the result of extensive public consultation, and the ACTU is satisfied that NICNAS has had and continues to have a genuine commitment to consultation.

Objective 3: Efficiency and effectiveness of NICNAS operating arrangements having regard to protection of human and environmental health, management of risk and compliance costs for business

The activities of NICNAS are fully cost-recovered. On November 30 the period for public submissions on the draft NICNAS Cost Recovery Impact Statement7 (CRIS) closed. The CRIS was informed by an Activity Based Costing (ABC) study conducted by independent consultants that provided an up-to-date analysis of the costs associated with the activities undertaken by NICNAS. Stakeholder views obtained through a discussion paper, workshops, and online survey in2010 were also considered in the development of the CRIS. In our view, work of NICNAS is of a high technical standard, and carried out efficiently, as demonstrated by the ABC. However, resources and powers limit the work it can complete. The ACTU wishes to emphasise that NICNAS must be adequately funded as its resources are stretched and too often it is required to react to urgent requests – albeit sometimes provided with additional funding from other departments to do so.

4 Draft report can be downloaded from the NICNAS website http://www.nicnas.gov.au/Consultations/HBCD_draft_for_public_comment_PDF.pdf
5 From The Pump Handle Science Blog http://scienceblogs.com/thepumphandle/2011/11/chronic_polluters_also_chronic.php
6 http://www.carexcanada.ca/en/
7 For more information, see the NICNAS website: http://www.nicnas.gov.au/Current_Issues/CRIS.asp


A current example of this is the recent and growing concerns with the array of chemicals used in Coal Seam Gas Extraction ('fraccing'). Recommendation 10 of the recent Senate Interim Report8 on the issue is:

The committee recommends that the Commonwealth provide funds to NICNAS to enable that organisation to undertake a comprehensive review of the chemicals used in fraccing, having particular regard to the quantities, combinations of chemicals and the way in which these chemicals are used and to confirm safe levels for their use. This study should be completed within the next two years. The Commonwealth and state governments should act promptly to ensure all fraccing activities comply with any NICNAS recommendations.

The issues for NICNAS are:
  • There are 23 'existing chemicals' involved, none of which have had adequate assessments
  • NICNAS has no power to gather the necessary information to undertake these assessments – the regulator will need to 'ask' industry/companies
  • There is no obligation for NICNAS to consider these chemicals BEFORE any other chemicals – there is national system for prioritising
  • Finally, there is no obligation on the Commonwealth or State governments to take up any recommendations following the assessments.
NICNAS has undertaken extensive work to ensure that as much as possible, assessments done of chemicals under comparable overseas assessment schemes are used, minimising cost to business.

Another area in which NICNAS has done great work is in responding to the Monash report (Review of Nanotechnology Regulation in Australia - July 20089) which highlighted a number of 'triggers', or regulatory gaps in the regulation of the emerging area of nanotechnology. Within its current budget, NICNAS has established a tripartite Nanotechnology Advisory Committee, which assisted NICNAS in the development of a number of options papers regarding the regulation of nanotechnology. NICNAS has been able to introduce changes which close some of the loopholes which would have allowed nano sized particles of 'new' chemicals being introduced with no assessment. It is currently working on the more complex, and for the union movement, extremely important area of nanomaterials of existing chemicals.

On the whole, with the powers and resources it has, the ACTU believes that NICNAS performs well, but as noted, its powers are too limited and the system too diffuse to adequately ensure the 'protection of human and environmental health'. Depending on MOUs to deliver means that outcomes are not achieved, as discussed above, and this means that workers, the public and the environment continue to be exposed to unacceptable risks.

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Objective 4: Implications for resourcing functions currently cost recovered

See above.

NICNAS should have its powers increased to enable decisions on assessed chemicals (eg restrictions or bans) to be made centrally. However, 'fixing' NICNAS will not fix the system. The ACTU consequently makes the following recommendations:

8 Interim report: the impact of mining coal seam gas on the management of the Murray Darling Basin
9The Monash Report : http://nano.foe.org.au/sites/default/files/Review%20of%20Nanotechnology%20Regulation%20in%20Australia%20-%20Monash%20Report%20July%202008.pdf

Recommendation 1:
A proper and comprehensive review into Toxics Use and Chemical Regulation as the first step towards developing a regulatory regime that encourages the reduction in toxics use (e.g. Toxic Use Reduction), encourages the elimination of known toxic agents and which institutes legislation similar to that of the European Union i.e. REACH.

Recommendation 2:
Give NICNAS the powers to:
  • Gather information on the quantity and use of chemicals and downstream users (where necessary)
  • Ban/restrict chemicals based on its assessments (either PEC assessments or whatever will replace these)
  • Increase co-operation and use of assessments from comparable overseas schemes
Recommendation 3:
The creation of a single overseeing body with the role of coordinating the healthy and safe use of chemicals in the occupational setting which is able to make recommendations to individual agencies to ensure consistency, identify gaps or contradictions within the systems and to shepherd the adoption of a best practice approach which incorporates toxic use reduction, prioritisation of hazards of high concern and the gathering of useful data to inform future regulation and use.

Recommendation 4:
That Australia create the regulatory circumstances to be able to ratify ILO Convention Chemicals

The union movement does not oppose reduction in regulatory burden but contends that this should never be the primary aim of a regulatory regime. A regulatory regime must be designed to protect human health and environmental health from the adverse effects of exposures to chemicals. On this basis the regulatory regime must rely on fundamental principles of:
  • Reduction of the toxic load on humans and the environment through the overall reduction of toxics use whilst maintaining economic viability of enterprises (for example the Toxic Use Reduction 10)
  • Community and worker right to know about the risks associated with chemical use. This is one of the platforms of REACH11 i.e. no data no use - chemicals without evidence that they can be used safely cannot be used until the evidence is provided
  • Alignment with and regular updating to current international standards, as minimum, for the protection of human and environmental health.
  • A regulatory regime that promotes higher-order controls to eliminate or minimise toxic exposures. Such a regime would need to develop and utilise the phase out of substances of high concern e.g. IARC group 1 and 2A carcinogens and mutagens etc.
  • Industry development policy that provides incentives for the technical/technological innovations, including advances in green chemistry, to reduce use of toxics and hence reduce exposure of humans and the environment

10 Toxic Use Reduction http://www.turi.org/policy/ma_tura_program/toxics_use_reduction_act_tura
11 Registration, Evaluation, Authorisation and Restriction of Chemical substances. More information at http://ec.europa.eu/environment/chemicals/reach/reach_intro.htm

Appendix

Some examples of where Australia is not keeping pace with the world.

Failure of current regulatory regimes to keep up to date with international standards:
  • SWA: Australian Exposure Standards – Australia lags behind many comparable countries in amending (usually reducing) exposure standards. This puts the health of workers at unnecessary increased risk.
  • SWA: Schedule of carcinogens
  • SWA: Schedule for Health Surveillance
  • the partial implementation of GHS (hazardous substances regulation adopts a modified GHS)
  • Lack of a plan, no commitment to:
    • reduce the use of carcinogens, mutagens and teratogenic chemicals in use
    • implementation EU REACH–type legislation (i.e. no data no use unless specifically exempted) (the ACTU strongly supports a shift in the present Australian chemicals assessment and management framework to the REACH approach).
Gaps in linkages between regulatory regimes
  • Lack of mandated link between NICNAS reviews of existing chemicals and recommendations and Hazardous Substances Regulatory packages
  • Lack of any regulatory or other regime to reduce the use of Toxics e.g. Toxic Use Reduction legislation
  • SCOC, no involvement of community or worker representation or direct consultation with worker/community representatives
  • National Pollution Inventory not linked to NICNAS, workplace or ag/vet chemical controls.
  • NPI appears to be outside the social partners, community involvement in the NPI processes (Environment Ministers – EPHC - National Framework for Chemicals Environmental Management NChEM http://www.ephc.gov.au/taxonomy/term/75)
  • Lack of co-ordinated response to the regulation of nanomaterials
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Suggestions for improved regulatory framework to reduce exposures to toxic substances
Objective
Some Suggested Specific Actions
Improved laws and regulations that reflect current knowledge and risks and strengthens identification, notification, enforcement, surveillance, registries and reporting of chemical exposure
  • Development of National Occupational and Environmental Strategy
  • Public enquiry on occupational and environmental carcinogens (e.g. Senate enquiry)
  • ILO ratifications by Australia of:
    • Chemicals Convention 170
    • Occupational Cancer Convention 139
  • Adoption of toxic use reduction approach for industry, both voluntary and mandated through legislation
  • Sun setting of use of IARC Class 1 carcinogens
  • Funding to advise employers on product substitution for Class 1 and 2A carcinogens
  • Scheduling of all Class 1 and 2 carcinogenic substances into hazardous substances regulations
  • Health surveillance requirement on all Class 1 and 2a IARC substances included in model regulations
  • Companies to report annual workplace exposures on a list of priority chemicals for phase out or minimisation of exposures
  • SWA and WorkCover/WorkSafe Authorities supporting education and info programs on work related cancer
  • Extension and regulatory linkage of the National Pollution Inventory to toxic use reduction and control of workplace exposures
  • Greater Number of audits: lower volume imports, usages e.g. like the National Pollution Inventory
  • Improved reporting by jurisdiction on response to the Occupational Disease Strategy
  • SWA coordinate a program to test work-relatedness of cancer in patients with cancer (including employment conditions).
  • Asbestos
  • Vendor disclosure Laws at point of sale for homes
  • Long term plan on removal of in situ asbestos from public buildings
  • Public education campaign on exposure risks for DIY renovations
  • Tighter monitoring and enforcement of Australia's importation ban of asbestos
  • Dust Diseases Board in every state
Improved collection of comprehensive Australian data and research on exposures to carcinogens and links between cancer and occupation.
  • Occupational and environmental Cancer Research grant scheme developed under auspices of SWA for new neglected and emerging cancer risks
  • 6 monthly meetings of occupational researchers to advise/support SWA
  • Career Development Award established by SWA for occupational and environmental cancer researchers
  • Establish a program like GISCOP93 (French study) i.e. encourage greater involvement of the medical profession in the collection of information about occupational relatedness of disease.
  • The establishment of an Australian exposure database similar to CAREX (Canada)