Review of South Australia s Dangerous Substances and Explosives laws. Consultation Draft Discussion Paper

Transcription

1 Review of South Australia s Dangerous Substances and Explosives laws Consultation Draft Discussion Paper October 2016

2 Review of South Australia s Dangerous Substances and Explosives laws Consultation Draft Discussion Paper Overview The Dangerous Substances Act 1979 and the Explosives Act 1936 regulate the safe management of dangerous substances and explosives in South Australia for the benefit of people, property and the environment. These laws exist to ensure the safe handling and management of these products by competent people with a legitimate purpose. SafeWork SA is conducting a review of its dangerous substances and explosives legislative framework, including licensing processes, to ensure that it delivers the greatest level of safety standards as well as efficiencies through reduced red tape and regulatory and administrative burden on business. The purpose of this review is to deliver a regulatory framework that is effective and efficient whilst ensuring that the accountability for the safe management of dangerous substances and explosives is clearly assigned and understood. This process is aimed at delivering improvements by providing clearer and simpler rules whilst maintaining enforcement practices to ensure that safety outcomes are achieved. SafeWork SA has prepared this consultation draft to provide an overview of the current legislative framework with a summary of key issues and anomalies. SafeWork SA would like to hear your views. Throughout this discussion paper you will see a number of questions aimed at capturing your dangerous substances and/or explosives experience. In addition to the specific questions, SafeWork SA is interested to hear your views about any aspects of the existing dangerous substances and explosives legislation, and your ideas for improving it. Your feedback will be valuable to the development of contemporary legislation that provides for the efficient, secure and safe handling and management of these products. Consultation on the Review of South Australia s Dangerous Substances and Explosives laws will commence on 24 October 2016 and finishes at 5pm on 25 November You are asked to provide any submissions in writing to SafeWork SA: Dangerous Substances and Explosives Review Policy and Governance Team SafeWork SA GPO Box 465 KESWICK SA 5035 or webmaster.safework@sa.gov.au 2

3 Contents Page Glossary of acronyms and abbreviations Legislative framework Dangerous Substances and Dangerous Goods Hazardous Chemicals under work health and safety legislation Explosives and security sensitive substances Harmonising explosives regulation Issues with current statutory framework Scope General duties Coverage of the Dangerous Substances Act Inconsistencies Current licensing framework in South Australia Dangerous Substances Dangerous Substances Keep Licence Gas Fitting Work Permit Dangerous Substances Conveyance Licence and pipeline activity Dangerous goods transport Hazardous Chemicals under Model Work Health and Safety Regulations Explosives and security sensitive substances licensing Explosives Regulations Explosives (Fireworks) Regulations Explosives (Security Sensitive Substances) Regulations Issues with licensing framework

4 4.1 Dangerous Substances Explosives Proposed new Dangerous Substances and Explosives framework Summary of questions Attachment 1: Summary of activities that are currently regulated under the dangerous substances and explosives Acts Attachment 2: Fee structure for licence to keep dangerous substances Attachment 3: Schedule 11 Placard and manifest quantities Attachment 4: Comparison of licensed explosives activities. 36. Attachment 5: Comparison tables of state/territories notification and licensing schemes 37. 4

5 Glossary of acronyms and abbreviations ADG Code AS AS/NZS CNG COAG DG Transport Regulations DS Australian Code for the Transport of Dangerous Goods by Road and Rail Australian Standard Australian Standard/New Zealand Standard Compressed Natural Gas Council of Australian Governments Dangerous Substances (Dangerous Goods Transport) Regulations 2008 dangerous substances DS Act Dangerous Substance Act 1979 DS Regulations Dangerous Substances Regulations 2002 Explosives Act Explosives Act 1936 GHS LPG Model WHS Regulations MHF PCBU UN WHS WHS Regulations Globally Harmonized System for the Classification and Labelling of Chemicals Liquefied Petroleum Gas Model Work Health and Safety Regulations Major Hazard Facilities Person Conducting a Business or Undertaking United Nations Work health and safety Work Health and Safety Regulations 2012 (SA) 5

6 1. Legislative framework South Australia s dangerous substances and explosives laws are provided by the following Acts and Regulations administered by SafeWork SA: Dangerous Substances Act 1979; Dangerous Substances Regulations 2002; Dangerous Substances (Dangerous Goods Transport) Regulations 2008; Explosives Act 1936; Explosives Regulations 2011; Explosives (Fireworks) Regulations 2016; and Explosives (Security Sensitive Substances) Regulations Dangerous Substances and Dangerous Goods The Dangerous Substances Act 1979 (the DS Act) regulates the storage, handling, transport, conveyance, use and disposal, and quality of dangerous substances. It applies to workplace and non-workplace environments. For the purpose of the DS Act, dangerous substance means dangerous goods or any other substance, mixture or article that is toxic, corrosive, flammable or otherwise dangerous and declared by regulations to be a dangerous substance. The DS Act defines dangerous goods as: a substance or article declared by the regulations to be dangerous goods; or a substance or article determined by a Competent Authority in accordance with the regulations to be dangerous goods. The following sets of regulations currently apply under the DS Act: Dangerous Substances Regulations 2002 (the DS Regulations); and Dangerous Substances (Dangerous Goods Transport) Regulations 2008 (the DG Transport Regulations) The DS Regulations declare various substances to be a prescribed dangerous substance for specified Divisions of the DS Act and set out a scheme for the classification of those substances, including by providing for classes of dangerous substances as dangerous goods. 1 The DG Transport Regulations then provide that goods are dangerous goods if they satisfy criteria set out or referred to in Part 2 of the Australian Code for the Transport of Dangerous Goods by Road and Rail (the ADG Code). 1 Refer to Regulations 4(5) and 5 of Dangerous Substances Regulations

7 The United Nations (UN) classification system for dangerous goods transport defines nine classes of substances, goods and articles; with some classes further divided into divisions. Under South Australia s laws, a reference to a class of dangerous substance is a reference to the UN Class to which the dangerous substance belongs under the DG Transport Regulations. The classes and divisions of dangerous goods relevant to South Australia s laws are: Class 1 explosives Division Division Substances and articles which have a mass explosion hazard Substances and articles which have a projection hazard but not a mass explosion hazard Division Substances and articles which have a fire hazard and either a minor blast hazard or a minor projection hazard or both, but not a mass explosion hazard Division Division Substances and articles which present no significant hazard Very insensitive substances which have a mass explosion hazard Division Extremely insensitive articles which do not have a mass explosion hazard Class 2 gases Division Division Division flammable gases non-flammable, non-toxic gases toxic gases Class 3 flammable liquids Class 4 flammable solids; substances liable to spontaneous combustion; substances that in contact with water emit flammable gases Division 4.1- Division Division flammable solids, self-reactive substances and solid desensitised explosives substances liable to spontaneous combustion substances which in contact with water emit flammable gases Class 5 oxidising substances, organic peroxides Division Division oxidising substances organic peroxides 7

8 Class 6 toxic and infectious substances Division Division toxic substances infectious substances Class 7 radioactive substances. Class 8 corrosive substances Class 9 miscellaneous dangerous goods and articles Goods too dangerous to be transported (as listed in appendix A of the ADG Code) are also captured by the DG Transport Regulations 2. The general duty of care under Section 11 of the DS Act applies for all classes of the above dangerous substances as dangerous goods. Section 11 of the DS Act states that a person must, in keeping, conveying, using or disposing of a dangerous substance, or in transporting dangerous goods, take such precautions and exercise such care as is reasonable in the circumstances to avoid endangering the health or safety of any person (including himself or herself), or the safety of property; and prevent the risk of environmental harm. However, other duties under the dangerous substances legislation may not apply to all of the above dangerous substances as dangerous goods; and not all are enforced and regulated under the dangerous substances legislation. For example, infectious substances (Division 6.2) and radioactive substances (Class 7) are excluded from the scope of transport activities 3. In South Australia these two substances are primarily enforced and regulated by legislation administered by Department of Health and the Environment Protection Authority 4. Licensing requirements under the dangerous substances and explosives legislation as administered by SafeWork SA is detailed at section 3 in this discussion paper. 1. Do you, or your organisation keep, handle, transport, convey, use or dispose of dangerous substances? 2. Are you satisfied with the existing dangerous substances legislation [Dangerous Substances Act 1979, Dangerous Substances Regulations 2002 and Dangerous Substances (Dangerous Goods Transport) Regulations 2008]? 3. If not, can you please describe any issues or concerns that you have with the existing dangerous substances legislation? 2 Refer to Regulation 12 of Dangerous Substances (Dangerous Goods Transport) Regulations Refer to Regulation 3 of Dangerous Substances (Dangerous Goods Transport) Regulations Refer to the Controlled Substances Act 1984 and Radiation Protection and Control Act

9 1.2 Hazardous Chemicals under work health and safety legislation In addition to dangerous substances, there is another category of chemicals called hazardous chemicals. Hazardous chemicals (as opposed to prescribed dangerous substances and dangerous goods) are those that, following exposure, can have an adverse effect on health. Many hazardous chemicals are also classified as dangerous goods (e.g. petrol or sulphuric acid). However, not all dangerous goods are classified as hazardous chemicals (for example, Bhusa hay) and vice versa (e.g. some combustible liquids). Chapter 7 of the Work Health and Safety Regulations 2012 (SA) (the WHS Regulations) imposes duties upon persons conducting a business or undertaking (PCBU) at a workplace about labelling, safety data sheets and manifests as well as the safe use, handling (including transport), generation and storage of hazardous chemicals, control of risk and provision of supervision for workers. Hazardous chemical means a substance, mixture or article that satisfies the criteria for a hazard class in the Globally Harmonized System for the Classification and Labelling of Chemicals (GHS), except for substances, mixtures or articles that satisfy the criteria listed in regulation 5 of the WHS Regulations. Regulation 351 Management of risks to health or safety of the WHS Regulations requires that a PCBU must manage risks to health and safety associated with using, handling (including transport), generating or storing a hazardous chemical at a workplace. Hazardous chemicals at non-workplaces are also regulated under the work health and safety (WHS) legislation, but with a narrower scope 5. The WHS Regulations cover major hazard facilities (MHF). MHFs are locations such as oil refineries, chemical plants and large fuel and chemical storage sites where large quantities of hazardous materials are stored, handled or processed. Operators of determined MHFs have certain obligations under the WHS Regulations. These include the requirements to hold a licence, notify the Regulator and prepare a safety case that demonstrates that the safety management system will control risks arising from major incidents and major incident hazards and that the control measures implemented at the facility are adequate. In addition to the general obligations relating to the management of risks to health or safety contained within the WHS Regulations (i.e. Regulation 351 described above), the DS Act also contains a general duty under section 11 of the DS Act to manage risks associated with dangerous substances. Where a hazardous chemical at a workplace is also considered a dangerous substance a PCBU (employer) may be required to comply with two different duties and provisions contained in two separate sets of legislation relating to the administration of the same chemical. The current situation in South Australia where the WHS legislation (in particular the hazardous chemicals regulations) operates in parallel with specific dangerous substances and dangerous goods legislation means that it is important to ensure that the legislative 5 Refer to Schedule 1 of WHS Act 2012 and Regulation 328(3) of the WHS Regulations

10 schemes and regulatory requirements are consistent in order to avoid unnecessary complexity and unnecessary compliance costs. 4. Do you, or your organisation, use, handle, generate or store a hazardous chemical that is also considered a dangerous substance? 5. Can you please describe any issues or instances of duplication or inconsistency arising from the current situation in South Australia where the WHS legislation (in particular the hazardous chemicals regulations) operates in parallel with the dangerous substances legislation? 6. Can you please describe any other concerns with the operation of the WHS legislation in parallel with the dangerous substances legislation? 1.3 Explosives and security sensitive substances Explosives Act 1936 The Explosives Act 1936 (the Explosives Act) is primarily designed to prevent misuse and reduce the risk of damage to people, and property due to incidents involving explosives. It applies to occupational and non-occupational activities involving explosives. For the purpose of the Explosives Act, explosive means: gunpowder, nitro-glycerine, all compounds and mixtures containing nitro-glycerine, guncotton, blasting powder, fulminate of mercury or of other metal, coloured fires, and every other substance used or manufactured with a view to produce a practical effect by explosion or a pyrotechnic effect; and fog-signals, fireworks, fuses, rockets, percussion caps, detonators, cartridges, ammunition of all descriptions, and every adaptation of preparation of an explosive. In addition, section 5 of the Explosives Act confers on the Governor the power, by proclamation, to proclaim a substance which appears to be specially dangerous to life or property by reason of its explosive properties or any component to be deemed to be an explosive within the meaning of the Explosives Act. Section 6 of the Explosives Act then provides that the Director may, with the consent of the Governor, define the composition, quality or character of any explosive, and may classify explosives. The following sets of regulations currently apply under the Explosives Act: the Explosives Regulations 2011 the Explosives (Fireworks) Regulations 2016, and the Explosives (Security Sensitive Substances) Regulations

11 The Explosives Regulations 2011 (the Explosives Regulations) support various aspects of the operation of the Explosives Act, including a transport classification code and storage category for explosives. The Explosives (Fireworks) Regulations 2016 ensure that a person requires approval to manufacture, keep, convey, sell or use certain fireworks and also prohibit the importing of certain fireworks. The Explosives (Security Sensitive Substances) Regulations 2006 relate to any substance that is declared to be an explosive and declared as a security sensitive substance. Currently this applies only to substances containing more than 45% (mass content) of Ammonium Nitrate. There have been no further substances declared to be a security sensitive substance since the inception of this regulation in Do you, or your organisation, manufacture, import, keep, convey, transport, use, sell or dispose of explosives (including fireworks or security sensitive substances)? 8. Can you advise whether you are satisfied with the existing explosives legislation [Explosives Act 1936, Explosives Regulations 2011, Explosives (Fireworks) Regulations 2001, and Explosives (Security Sensitive Substances) Regulations 2006? 9. Can you please describe any issues or concerns that you have with the existing explosives legislation? 1.4 Harmonising explosives regulation In December 2012, the Council of Australian Governments (COAG) agreed harmonising explosives regulation should be progressed by the then Select Council on Workplace Relations, where there are clear benefits to be derived. In March 2015, COAG noted a business case for developing nationally consistent explosives regulations and agreed that WHS ministers would continue to take forward this work through Safe Work Australia. A Strategic Issues Group on Explosives was established by Safe Work Australia to progress this work, with members from each jurisdiction, the Australian Industry Group (Ai Group), the Australian Chamber of Commerce and Industry (ACCI) and the Australian Council of Trade Unions (ACTU). Public consultation on the national reform of explosives legislation was undertaken between July and September 2015 by Safe Work Australia. The result of that process identified four key areas for harmonisation that were viewed by businesses requiring improvements. These included nationally consistent explosives definitions, consistent licence framework, consistent notification and explosive authorisation processes. 11

12 2. Issues with current statutory framework 2.1 Scope The DS Act (and associated Regulations) provide for the keeping, conveying, using or disposing of a dangerous substance, or in transporting dangerous goods; while the Explosives Act provides for the manufacture, carriage, shipping, sale and storage of explosives. While the various sets of explosives regulations expand the scope of activities to include importing, exporting, keeping, using, supplying and disposing; there remains inconsistency between the Dangerous Substances and Explosives legislation in relation to the activities which are regulated in a consistent manner. Table 1 in Attachment 1 provides a summary of activities that are currently regulated under the dangerous substances and explosives Acts. 2.2 General duties The DS Act contains a general duty of care to manage risks associated with dangerous substances. Specifically, section 11 of the DS Act states that a person must, in keeping, conveying, using or disposing of a dangerous substance, or in transporting dangerous goods, take such precautions and exercise such care as is reasonable in the circumstances to: avoid endangering the health or safety of any person (including himself or herself), or the safety of property; and prevent the risk of environmental harm. However, despite explosives creating a comparable, if not greater, level of risk, the Explosives Act does not have a comparable set of general duties to the DS Act. 10. What is your view on the inconsistency between the general duties contained in the DS Act and the Explosives Act? Should this inconsistency be addressed and, if so, how? 2.3 Coverage of the Dangerous Substances Act 1979 The DS Act has a heavy reliance on the interpretation of the dangerous goods definition as provided by the ADG Code and the dangerous goods transport laws. This means that there are a number of substances which can be considered to be dangerous for non-transport activities but are not caught by the Act unless it is prescribed by regulations. Some examples include the handling of: combustible liquids, substances classified as goods too dangerous to be transported for example, unstable explosives or unstable chemicals such as nitroglycerine; and substances whose concentrations fall below that which requires it to be classified as a dangerous good. In addition, the range/scope of Class 1 Explosives under the ADG Code may not be extensive enough for activities other than transport because the dangerous goods 12

13 classification system is applicable for transport only. The classification within Class 1 under the ADG Code differs from other dangerous goods classes in that the classification is packaging dependant and relates to the substance or article remaining in its closed transport packaging form. The substance or article within an inner packaging may or may not be an explosive as individual components, but the overall outer packaging containing the substances or articles may give rise to a combined result for assignment into Class 1 explosive. This means that it does not necessarily provide information on the fundamental properties of the substance or article when it is handled in other activities (as is the case with other dangerous goods classes). Once an article or substance is removed from the explosive transport packaging, it may: (a) revert to being a non-explosive article or substance; or (b) remain as an explosive (at a higher or lower hazard level); or (c) be a substance that is too dangerous to be transported. Despite these occurrences, the substance or article still needs to be regulated, even if it is no longer within the ambit of the ADG Code. The issue of conveyance leads to a variety of associated matters. For example, the way that the dangerous goods transport scheme has been framed in South Australia does not fully allow SafeWork SA to deal particularly well with matters involving the carriage of dangerous substances on inland waterways or within the coastal waters of the State (by various forms of craft, ships, boats or other vessels). There is also a gap with the carriage of dangerous substances through the air when the activity involves heights that are not administered by the Civil Aviation Safety Authority. Another form of conveyance that needs to be considered involves the movement of dangerous substances through pipelines or other means (such as plant other than vehicles). 11. What is your view on the inconsistency between the activities regulated under the DS Act and the activities regulated under the Explosives Act? Should this inconsistency be addressed and, if so, how? 12. What activities should be regulated by the DS Act and what activities should be regulated by the Explosives Act? 2.4 Inconsistencies There are inconsistencies between the definitions under the DS Act and the Explosives Act. 6 Similar concepts are expressed differently. 7 6 For example, both Acts have their own definition of vehicle. 7 For example, the DS Act refers to the transport of dangerous goods while the Explosives Act refers to the carriage of explosives or to explosives being carried. 13

14 The result is that some of the definitions and classifications, especially in relation to hazardous chemicals, do not provide or deliver a comprehensive set of controls under the legislation as it currently stands. Different classification schemes and definitions used in the ADG Code and under the WHS Act have also resulted in some gaps in regulation and control of dangerous substances, dangerous goods and explosives. Furthermore, the Explosives Act uses the concept of carriage and the term vehicle is defined much more broadly when compared to the DS Act. Vessels and boats are then separately defined in the Explosives Act. The concept of conveyance is then defined differently in the DS Act. 8 The result is gaps and inconsistencies across the two Acts and a lack of coherence. The adoption and use of national codes and other instruments can also mean that change may not be achieved quickly or that certain aspects of the scope or content of the national instruments do not suit all local jurisdictions. In other words, emerging issues or changing business practices may require changes to be made to the regulatory instruments or schemes but change may be difficult to achieve, or may take some time to achieve, through national processes. Furthermore, not all jurisdictions may regulate the same substances or activities in the same way or, to the extent that a particular activity may be carried out in a particular jurisdiction, that jurisdiction may decide to rely on general work health and safety legislation rather than specific statutory schemes relating to the regulation of dangerous substances or goods. It is also the case that the administration of various forms or classes of dangerous substances may be split in some of the other jurisdictions, and/or that different definitions or terminology apply. This may cause difficulties when attempting to develop comprehensive and coherent regulatory mechanisms that are intended to be used or adopted on a uniform basis across jurisdictions. It therefore appears that inconsistencies and difficulties have arisen because of differences in legislative approaches and administration when one jurisdiction is compared to another. 13. Can you provide examples of inconsistencies between the existing legislation regulating dangerous substances and explosives, and how have these inconsistencies impeded your ability to conduct your business? 8 Under the Dangerous Substances Act 1979, the concept of conveyance does not include the movement of a dangerous substance by vehicle (but does include the movement of a dangerous substance by a craft, pipeline or other means). 14

15 3. Current licensing framework in South Australia 3.1 Dangerous Substances In South Australia, SafeWork SA administers the enforcement and compliance of the licensing scheme under the DS regulations for the keeping of dangerous substances. A licence to keep dangerous substances is required for prescribed quantities of Liquefied Petroleum Gas (LPG), which is of Division 2.1 within Class 2, flammable liquids (Class 3), toxic substances (Class 6) and corrosive substances (Class 8) Dangerous Substances Keep Licence A dangerous substances licence is issued after SafeWork SA is satisfied that the site complies or the licence holder is capable of complying with the relevant regulations. The licence holder can proceed with the regulated activity once the essential minimum safety requirements defined by the regulations have been achieved. SafeWork SA undertakes early engagement and risk management of domestic and commercial businesses that want to keep dangerous substance(s). During the licence application process, a site visit is undertaken by a SafeWork SA inspector to confirm suitability of the proposed activity, premise and storage location. If the site is not suitable, advice is given by the inspector on issues to be resolved, otherwise a licence is not issued and the substances cannot be kept at the premises. Income generated through the licensing process assists in partial cost recovery associated with these assessments by SafeWork SA s dangerous substances inspectors. Additionally, the licence provides the regulator the opportunity to place conditions on a licence to ensure particular safety issues are addressed or develop a compliance plan which can be made a licence condition to ensure requirements for particular activities are addressed within a certain timeframe. Legal or enforcement action can then be taken for failure to comply with a licence condition. Liquefied Petroleum Gas (Class 2) Liquefied Petroleum Gas (LPG) is a Class 2 substance within Division 2.1 (flammable gases). A licence is required for any premises that keeps more than 250kg of LPG. This quantity does not include disposable non-refillable containers; or any cylinder that is in use or on an industrial premises, when located and used in accordance with Australian Standard AS 1596 The Storage and Handling of LP Gas (AS 1596). An industrial premises means a place where the occupier engages one or more persons to make, repair or alter an article for specified activities and places. For a full definition of industrial premises, please refer to the DS Regulations. Notification of LPG tank installation and removal is required as part of the licensing process and compliance with AS 1596 is mandatory to obtain a DS keep licence. 9 9 Refer to regulation 40 of the Dangerous Substances Regulations

16 The licence term is 1 year. The current licence fee structure for LPG is contained at Attachment 2. Currently other flammable gases and Class 2 gases are not captured by regulation for licensing to keep these substances at any premises. Flammable Liquids (Class 3) A licence is not required if the following quantities are kept: (a) up to 120 litres of Class 3, Packing Group I or II provided that it is contained in packaging which has a capacity of less than 60 litres; (b) up to litres of Class 3, Packing Group III; (c) up to litres of Class 3, Packing Group I or II and up to litres of Class 3, Packing Group III provided that the premises have an area of not less than two hectares and in or on which premises there is carried on a rural industry and that (i) any above ground storage is separated from protected works as defined in Australian Standard AS 1940 The Storage and Handling of Flammable and Combustible Liquids (AS 1940) and any part of the boundary of the land by not less than 15 metres; and (ii) the area of ground around the storage is kept clear of combustible vegetation or refuse for a distance of not less than 3 metres; (d) any quantity of Class 3, Packing Group I or II provided that it is contained in packaging which has a capacity not exceeding 5 litres and where the substances as packaged are manufactured products; (e) any quantity of Class 3, Packing Group III provided that it is contained in packaging which has a capacity not exceeding 25 litres and where the substances as packaged are manufactured products. Note, a typical example of a manufactured product is paint. Any quantity of flammable liquids that exceeds (a) to (e) above will require a licence to keep. Compliance with AS 1940 is mandatory to obtain a DS keep licence. Notification of flammable liquid tank installation and removal is required as part of the licensing process 10. The licence term is 1 year. contained at Attachment 2. The current licence fee structure for Flammable L i q u i d s is Currently combustible liquids are not captured by regulation for licensing to keep these substances at any premise. 10 Refer to regulations 42 and 43 of the Dangerous Substances Regulations

17 Toxic and Corrosive Substances (Classes 6 and 8) A licence is required for Classes 6 and 8 substances where the packing group is the same and the quantity is greater than 250 (kg or L) of Packing Group I, (kg or L) of Packing Group II or (kg or L) of Packing Group III. For mixed packing groups, a licence is required where the quantity kept meets the prescribed formula in Regulation 58 of the DS Regulations. The licence term is 1 year. The current licence fee structure for Toxic and Corrosive substances is contained at Attachment Gas Fitting Work Permit The dangerous substances legislation currently provides for a permit scheme to cover gas fitting work, repair or maintenance to internal combustion engines powered by LPG or Compressed Natural Gas (CNG). This generally covers activities around handling and using LPG and CNG with work performed on automotive vehicle engines, fork lifts and stationary engines. A person must not carry out any class of gas fitting work unless the person is the holder of a permit which allows the person to carry out that class of gas fitting work 11. There are six classes of gas fitting work permit as follows: Class 1 all classes of gas fitting Class 2 three installations for approval (a pre-requisite to obtaining a Class 1) Class 3 fork lifts only (installation, maintenance, repair) Class 4 vehicle gas equipment (maintenance, repair) Class 5* stationary engines (installation, maintenance, repair) Class 6 other situation specific e.g. wreckers removing systems (combination of installation, maintenance, repair). The permit term is for 3 years. The current fee for a 3-year permit for all classes is $107. * Work on stationary engines that involves large volume of LPG/CNG may also require a 'Type B' gas licence issued by the Office of the Technical Regulator. A person who carries out gas fitting work must ensure, where the work is for the use of LPG, that the work is carried out in accordance with the relevant requirements of Australian Standard AS/NZS 1425 LP Gas Fuel Systems for Vehicle Engines. A person who carries out gas fitting work must ensure, where the work is for the use of CNG, that the work is carried out in accordance with the relevant requirements of Australian Standard AS/NZS 2739: Natural Gas (CNG) Fuel Systems for Vehicle Engines. 11 Refer to Regulation 28 of the Dangerous Substances Regulations

18 3.1.3 Dangerous Substances Conveyance Licence and pipeline activity The DS Act provides the ability for the Competent Authority to license activity in relation to the conveyance of prescribed dangerous substances. However, at this time no licences have been able to be issued under this category of licence, as no substances have been prescribed in regulations for this licence category. Despite this, Regulation 54 does provide requirements in relation to design, construction, testing or maintaining a pipeline associated with conveyance activity of dangerous substances Dangerous Goods transport The DS Transport Regulations support various aspects of the operation to dangerous goods land transport activity. The application of the approved ADG Code is given regulation status. Licences are required for vehicles and drivers for the carriage of certain dangerous goods. Part 4 of the DS Act and Regulation 4 of the DS Transport Regulations exclude the transport of the following dangerous goods (except when they are being transported with other dangerous goods): (a) dangerous goods of UN Class 1 (explosives); (b) dangerous goods of UN Division 6.2 (infectious substances); (c) dangerous goods of UN Class 7 (radioactive material); (d) explosives within the meaning of the Explosives Act and substances declared to be explosives by proclamation under section 5 of that Act. The regulations require a vehicle transporting dangerous goods and the person driving the vehicle in prescribed quantities to be licensed. A vehicle and a driver are required to be licensed to transport dangerous goods when the vehicle is used to transport: dangerous goods in a receptacle with a capacity of more than 500 litres; or more than 500 kilograms of dangerous goods in a receptacle. A licence is not required when: the dangerous goods are transported in an intermediate bulk container (IBC) where the IBC is not filled or emptied on the vehicle, and the total capacity of IBCs on the vehicle is not more than 3000 litres; a licence is in force in respect of the vehicle under the Explosives Act; the vehicle is a unit of rolling stock; or the vehicle is a prime mover or a converter dolly. Driver Licence is issued for up to 3 years. Vehicle Licence is issued up to 3 years. 18

19 The current licence fee for a driver licence is $75.50 and vehicle licence is $151 (for a one year licence). 3.2 Hazardous Chemicals under Model Work Health and Safety Regulations Under regulation 348 of the model Work Health and Safety Regulations (the model WHS Regulations) a person conducting a business or undertaking (PCBU) at a workplace must ensure that the regulator is given written notice if a quantity of a Schedule 11 hazardous chemical or group of Schedule 11 hazardous chemicals that exceeds the manifest quantity is used, handled or stored, or is to be used, handled or stored, at the workplace. Schedule 11 Placard and manifest quantities of the model WHS Regulations is contained at Attachment 3. It should be noted that regulation 348 of the model WHS Regulations does not operate in South Australia so the PCBU notification requirement does not apply. Assessments of the business impact and safety risks of implementing regulation 348 of the model WHS Regulations to replace the dangerous substances licensing system supported this decision. However, this means that in South Australia the only chemicals that are regulated through either a licensing or a notification scheme are LPG, flammable liquids, toxic substances and corrosive substances, which represents a lower range of chemicals to what is currently captured under the hazardous chemicals notification requirement in the model WHS Regulations and is something that may need to be addressed. Queensland, New South Wales, Tasmania and the Northern Territory have implemented regulation 348 of the model WHS Regulations within their jurisdiction s WHS laws. The Australian Capital Territory has not adopted or implemented any of Chapter 7 of the model WHS Regulations. Victoria and Western Australia s WHS laws are not based on the model WHS laws; however, these two states have adopted thresholds that are similar to Schedule 11 within their dangerous substances legislation. In reviewing South Australia s existing dangerous substances licensing system, consideration needs to be given as to the range and the quantities of substances for control or a licence to be required. For example, combustible liquids and all of the Class 2 gases, Class 4 and Class 5 substances are either licensed or required to be notified in every other state/territory, but not in South Australia. Some states also licence/notify for the storage and handling of Class 9 dangerous goods. Full details of the comparison of chemicals licensed for activities across states/territories are provided in Attachment Explosives and security sensitive substances licensing South Australia s licensing arrangements are intended to ensure explosives are used safely and for legitimate purposes by authorised people, under regulatory oversight. Occupationbased licences may be issued to individuals including blasters and pyrotechnicians. Activitybased licences may be issued to businesses and individuals undertaking activities, like manufacturing or storing explosives. The following licences are the key explosives and security sensitive substances licences under the Explosives Act. 19

20 3.3.1 Explosives Regulations 2011 The Explosives Regulations support various aspects of the operation of the Explosives Act, including a classification code for explosives transport and categories for storage application. Explosive Factory Licence This licence permits the manufacture of authorised explosives at a specified factory site. A licence is granted to the occupier of the factory and valid only for that occupier and only in respect of the site specified in the licence and is not transferable. The current cost of an Explosive Factory Licence is $318 and the licence term is 1 year. Filling Cartridges for Small Arms Licence Regulation 5.02 of the Explosives Regulations requires persons who fill cartridges for small arms to hold a licence. A person must not fill or cause to be filled cartridges for small arms with an explosive unless a licence is held to manufacture explosive or a licence to store explosives. Person filling safety cartridges for private use only and holds a firearms licence are excluded. Carriage Licence This licence is required for the land transport of explosives where the quantity carried exceeds 15kg of gunpowder or a quantity of any other explosive exceeding 3kg. It is not required for the carriage of Classes 1.3G, 1.4G, or 1.4S explosives (for example, party poppers, Christmas crackers or safety fuse). A licence may be granted only to the owner to whom it is issued, for the vehicle specified and for the quantity of explosive stated for carriage. Currently there are four licence categories for the carriage of explosives by vehicle and the current cost of the Carriage Licence is: up to 60kg $37 up to 265kg $58 over 265kg to 1 000kg $63.50 over 1 000kg $186 These licences are not transferable. The licence term is 1 year. Vehicles are also required to be design approved by the Chief Inspector for any segregation devices used for transporting incompatible loads. Additional security requirements for loads of certain explosives types in accordance with the Australian Explosives Code are placed as conditions of licence. Transport routes are also approved for the carriage of explosives over 1 000kg with mass explosion hazards. The explosives regulations also provide for the licensing of explosives carried on vessels, ships, boats and crafts on waterways. 20

21 Storage Licence for Explosives A premises licence is required for the storage of explosives in quantities exceeding 3kg and up to 60kg. The licence is valid only for the person to whom it is issued and for the premises in respect of which it is issued and is not transferable. A magazine licence is required for the storage of explosives exceeding 60kg. The current cost of the Storage Licence for Explosives is: up to 30kg $58.50 up to 60kg $107 The current cost of a magazine licence is: up to 1 000kg $186 over 1 000kg $322 The current cost of portable magazine licence is: up to 60kg $127 up to 1 000kg $373 over 1 000kg $647 The licence term is 1 year. Licence to Import Explosives and export activity This licence is required for the importation (including importation from interstate) of any class of explosive in quantities exceeding 3kg. Notification is required for each consignment imported into South Australia. Notification must be given at least two clear working days prior to the import/export. The licence term is 1 year. The current cost of the Licence to Import Explosives is: Explosives of Classification Code 1.2G, 1.3G, 1.4G and/or 1.4S $63.50 All Classification Codes $107 Explosives Permit This permit provides a person with authority to possess, purchase, sell, supply and exchange explosives. All applications for a South Australian explosive permit must include a current National Police Clearance Certificate (NPC). There are no fees attached to a permit to purchase. 21

22 Blasters Licence The regulations prescribe for the licensing of blasters in mining operations. A person must not conduct a blasting operation unless the person holds a blaster licence authorising the conduct of the operation. All applications for a South Australian Blasters Licence or renewal must include a current National Police Clearance Certificate. The current cost of the Blasters Licence is $71.50 and the licence term is 3 years. Licence to mix and use Ammonium Nitrate This licence is required for the mixing and using of ammonium nitrate (e.g. ANFO [Ammonium Nitrate Fuel Oil]). If the explosive mixture is stored overnight, a licence to store on premises or in a magazine is required. A licence granted is valid only for the person to whom it is issued, and for the place or places mixed and used, and for the particular Ammonium Nitrate mixture specified in the licence. The licence term is 1 year. The current cost of a Licence to mix and use Ammonium Nitrate for one place only is $58.50 and for more than one place is $ Explosives (Fireworks) Regulations 2016 A key feature of the fireworks scheme is that a person requires the approval of the Director to manufacture, keep, convey, sell or use certain fireworks. The regulations also prohibit the importing of certain fireworks. The regulations also set out a licensing scheme for three different licences in relation to the use, sale, supply or possession of certain fireworks. Licence holders are required to notify the public and the Director for all outdoor firework displays and special effect displays conducted. Pyrotechnicians Licence $234 Pyrotechnicians Display Business Licence $157 Pyrotechnicians Sales Business Licence $ Explosives (Security Sensitive Substances) Regulations 2006 The requirements for a licence under the Explosives Act in relation to an explosive apply to a security sensitive substance. Security sensitive ammonium nitrate (SSAN) is the only substance regulated under the Explosives (Security Sensitive Substances) Regulations SSAN is defined as ammonium nitrate (AN), or any AN mixture containing greater than 45 per cent mass content of AN. Solutions of AN are excluded. SSAN products must be authorised in South Australia by the manufacturer or importer. A person requires a licence or permit: 22

23 (a) to import or export a security sensitive substance; (b) to sell or otherwise supply a security sensitive substance; (c) to purchase or otherwise acquire a security sensitive substance; (d) to use or dispose of a security sensitive substance; (e) to manufacture a security sensitive substance; (f) to store a security sensitive substance; (g) to carry a security sensitive substance. A licence or permit remains in force for a period specified in the licence or permit. The current cost of the licence or permit for the manufacture, storage, carriage, import or export, purchase or acquisition, sale or supply, and use or disposal of Security Sensitive Ammonium Nitrate (SSAN) for a one year term is $ Table 1 provides the number of dangerous substances and explosives licences in South Australia according to the licence type. Licence Type Number of Licences Dangerous Substances Keep - Liquefied Petroleum Gas 2970 Keep - Flammable Liquids 1728 Keep - Toxic and/or Corrosive 368 Gas fitting work permit 493 Dangerous Goods Transport - Vehicle 1294 (includes vehicles and trailers) Dangerous Goods Transport - Driver 2198 Explosives Factory 1 Carriage 553 Storage 353 (magazines + premises) Import 82 Blasters 919 Mix and Use Ammonium Nitrate 116 Permit to Purchase 89 Pyrotechnician 57 Pyrotechnic Display Business 13 Pyrotechnic Sales Business 2 Security Sensitive Ammonium Nitrate Carriage 164 Storage 193 Manufacture 1 Purchase/acquire (permit) 191 Import/export (permit) 30 Sell/supply (permit) 39 Use/dispose (permit)

24 14. Are you a holder of multiple licences? If so, how many licence types do you hold? 15. Are the term/periods of licence sufficient? If not, which licence type and for what period would you like to see a change? 16. Is there a fee structure model you would prefer to see in a new licensing system? 24

25 4. Issues with licensing framework 4.1 Dangerous substances South Australia s dangerous substances licensing system applies to a limited range of substances kept at any premises (i.e. not just workplaces). However, in the other jurisdictions a much broader range of chemicals (for example, from Class 1 to 9 dangerous goods and combustible liquids) are regulated under either a licensing system or notification requirement, which is based on Schedule 11 Placard and manifest quantities of the model WHS Regulations (i.e. Attachment 3). For example, in South Australia LPG is the only dangerous substance within the entire Class 2 of Dangerous Goods (Class 2 deals with Gases) that require any premises keeping that substance to be licensed. A licence is only required when more than 250kg of LPG is kept on the premises. LPG, which includes Propane, Butane and mixtures of these gases, falls within Division 2.1 Flammable Gases of Class 2 Gases. However, other flammable gases, such as acetylene and hydrogen, which are also Flammable Gases of Division 2.1 Dangerous Goods are not required to be licensed in South Australia unless quantities kept at any premise reach MHF thresholds. Similarly, other Gases of Class 2, such as those falling within Division 2.2 (Non-flammable, non-toxic gas) and Division 2.3 (Toxic gas) are not required to be licensed in South Australia. Other states and territories in Australia regulate a wider range of dangerous goods or hazardous chemicals, and in different quantities either through a licensing scheme or a notification requirement. For example, Queensland; Victoria; Tasmania and the Northern Territory appear to regulate gases based on manifest quantities under a notification requirement. New South Wales also regulates gases based on manifest quantities under a notification requirement; however, it appears that in NSW the notification scheme operates similar to a licensing scheme. The manifest quantities in all states, except Victoria, are the same as Schedule 11. Western Australia and the Australian Capital Territory operate a licensing scheme for Division 2.1 flammable gases. Schedule 11 Placard and manifest quantities of the model WHS Regulations sets the threshold for notification of flammable gases at 5 000L, whereas any premises keeping more than 250kg of LPG in South Australia is required to be licensed. Gases under pressure; combustible liquids; self-reactive substances; flammable solids; organic peroxides; and oxidising liquids and solids are examples of other groups of hazardous chemicals which are listed in Schedule 11 and therefore regulated under a notification requirement or licensing scheme in other states and territories, but not in South Australia. The manifest quantities for flammable liquids specified in Schedule 11 also demonstrates inconsistency with South Australia, where a licence threshold begins at 60 litres or up to 120 litres contained in packaging of a capacity not more than 60 litres (packaging group I and II). Schedule 11 manifest quantity for flammable liquids starts at 500 litres (packing group I) and litres (packing group II). 25

26 Differences in licensing arrangements across jurisdictions may have implications for businesses, but particular issues and their impact on businesses are not known for hazardous chemicals or dangerous goods that are currently not enforced by a licensing or notification scheme in South Australia. 17. Do you, or your business, have any concerns with the range of chemicals or activities currently licensed or not licensed in South Australia? 18. Would you like to see more or less chemicals licensed in South Australia? Please provide details. 19. Are there any customer service related issues with dangerous substances licensing processes you would like to see improved? 4.2 Explosives South Australia s licensing arrangements are intended to ensure explosives are used safely and for legitimate purposes by authorised people, under regulatory oversight. Occupationbased licences may be issued to individuals including blasters and pyrotechnicians. Activitybased licences may be issued to businesses and individuals undertaking activities, like manufacturing or storing explosives. Attachment 4 compares state and territory licensing arrangements for various explosives activities. 20. Do you, or your business, have any concerns with the range of activities currently licensed under the explosives legislation in South Australia? 21. Are there any customer service related issues with explosives licensing processes you would like to see improved? 26

27 5. Proposed new Dangerous Substances and Explosives framework The purpose of the review will be to deliver a regulatory framework that is effective and efficient whilst ensuring that the accountability for the safe management of dangerous substances and explosives is clearly assigned and understood. This process is aimed at delivering improvements by providing clearer and simpler rules whilst maintaining enforcement practices to ensure that safety outcomes are achieved. A possible option for reducing duplication and delivering the outcomes identified above is to combine the key principles and elements of the existing dangerous substances and explosives acts into a new, single Act to effectively administer and regulate various aspects of the management of dangerous substances, hazardous chemicals and explosives in South Australia to provide for the safety of persons, property and the environment from their misuse. The cornerstone of new combined legislation would be a new definition of Dangerous Substances to include: a. explosives; b. hazardous chemicals; c. combustible liquids; d. dangerous goods; e. goods that are too dangerous to be transported; f. other substances and articles declared by or under the regulations to be dangerous substances. Various sets of regulations supporting the Act could be prepared dealing with different activities involving those substances listed above. For example: Act combining Dangerous Substances and Explosives Dangerous Substances Regulations Dangerous Goods Transport Regulations Explosives Regulations Fireworks Regulations The above diagram depicts four different sets of subject matter specific regulations, however, any number of sets of regulations could be prepared as is required and/or relevant. 27

28 This option would result in greater efficiency as it means that a business or undertaking that participates in various activities involving dangerous substances, hazardous chemicals and explosives would only be required to apply a single Act and only those regulations that apply to the activities conducted by their business. At the same time, a comprehensive set of statutory provisions that would have a number of consistent or corresponding provisions would result in more effective rules that improve accountability for the safe management of dangerous substances. Standard provisions and benchmarks could be set across all of the regulatory schemes, resulting in efficiencies in administration and greater opportunities to ensure that the schemes operate effectively. The key will be to establish the basic structures of the scheme in the principal legislation and to provide for a great deal of the detail in the regulations. This will give the flexibility to cover new activities and substances that may need to be regulated, controlled or in the future because of changing or emerging circumstances. Furthermore, flexibility will be required to ensure that South Australia can adopt and, if necessary adapt, national reforms and regulatory instruments relevant to the administration of State laws relating to dangerous substances and goods. 22. What issues or improvements would you like to see in a new system? 28

29 6. Summary of questions 1. Do you, or your organisation keep, handle, transport, convey, use or dispose of dangerous substances? 2. Are you satisfied with the existing dangerous substances legislation [Dangerous Substances Act 1979, Dangerous Substances Regulations 2002 and Dangerous Substances (Dangerous Goods Transport) Regulations 2008]? 3. If not, can you please describe any issues or concerns that you have with the existing dangerous substances legislation 4. Do you, or your organisation, use, handle, generate or store a hazardous chemical that is also considered a dangerous substance? 5. Can you please describe any issues or instances of duplication or inconsistency arising from the current situation in South Australia where the work health and safety legislation (in particular the hazardous chemicals regulations) operates in parallel with the dangerous substances legislation? 6. Can you please describe any other concerns with the operation of the WHS legislation operating in parallel with the dangerous substances legislation? 7. Do you, or your organisation manufacture, import, keep, convey, transport, use, sell or dispose of explosives (including fireworks or security sensitive substances)? 8. Can you advise whether you are satisfied with the existing explosives legislation [Explosives Act 1936, Explosives Regulations 2011, Explosives (Fireworks) Regulations 2001, and Explosives (Security Sensitive Substances) Regulations 2006? 9. Can you please describe any issues or concerns that you have with the existing explosives legislation? 10. What is your view on the inconsistency between the general duties contained in the DS Act and the Explosives Act? Should this inconsistency be addressed and, if so, how? 11. What is your view on the inconsistency between the activities regulated under the DS Act and the activities regulated under the Explosives Act? Should this inconsistency be addressed and, if so, how? 12. What activities should be regulated by the DS Act and what activities should be regulated by the Explosives Act? 13. Can you provide examples of inconsistencies between the existing legislation regulating dangerous substances and explosives, and how have these inconsistencies impeded your ability to conduct your business? 29

30 14. Are you a holder of multiple licences? If so, how many licence types do you hold? 15. Are the term/periods of licence sufficient? If not, which licence type and for what period would you like to see a change? 16. Is there a fee structure model you would prefer to see in a new licensing system? 17. Do you, or your business, have any concerns with the range of chemicals or activities currently licensed or not licensed in South Australia? 18. Would you like to see more or less chemicals licensed in South Australia? Please provide details. 19. Are there any customer service related issues with dangerous substances licensing processes you would like to see improved? 20. Do you, or your business, have any concerns with the range activities currently licensed under the explosives legislation in South Australia? 21. Are there any customer service related issues with explosives licensing processes you would like to see improved? 22. What issues or improvements would you like to see in a new system? 30

31 Attachment 1 Table 1: Summary of activities that are currently regulated under the dangerous substances and explosives Acts Dangerous Substances Act 1979 Explosive Act 1936 Manufacture No Yes Import No Yes Export No Yes Transport Yes Yes Store Keep/Purchase or Acquire Use Sell/Supply Yes (it s captured and referred to as keep below) Yes but limited to keep ( keep would cover the act of possession in acquiring, storing or using prescribed dangerous substances) Yes (but very limited application. General duty, section 11 of the Act still applies to all cases) No Yes Yes Yes Yes Dispose No (only under general duty section 11 of the Act) Yes 31

32 Attachment 2 Fee structure for licence to keep dangerous substances 32