Pesticides Regulation 2017 consultation

A total of 31 submissions were received from industry, State and local government, and the public

• Twenty eight submissions were from organisations and three were from individuals.
• Four submissions were supportive of the proposed Regulation without further comment.
• Six submissions were broadly supportive of the proposed Regulation but also made comments on specific matters.
• Twenty six submissions made comments on new or changed provisions of the proposed Regulation.
• Ten submissions made comments on provisions of the existing Regulation which are being carried forward to the proposed Regulation.
• Four submissions made comments which are outside of the scope of the Regulation remake, such as being relevant to the responsibilities of other State and Commonwealth agencies or which would require changes to the Pesticides Act.

Licensing

Where submissions made mention of licensing, they were broadly supportive of the Regulation’s role in establishing a licensing framework for higher risk occupational pesticide users in NSW. A number welcomed the move towards improved national harmonisation and cross-border consistency of licensing requirements.

No submissions were received that were unsupportive of existing licence categories, however some sought minor clarification of definitions of prescribed pesticides work, exclusions/exemptions to licensing and requirements for trainees. Several detailed changes were made to the finalised Regulation in response to these comments.

Ground applicator licences only to apply to private operators

For the proposed new licence categories, the main matter raised in submissions was questioning the case for pesticide ground applicator licences being required for workers in public authorities, including local councils. As a result the finalised Regulation was amended so that only commercial service providers will be required to hold this licence. This change still achieves NSW national harmonisation objectives regarding the introduction of licensing of ground applicators. More detailed points were raised regarding exclusions or exemptions for volunteer bush care work and the new licence requirement’s possible effect on cotton growers. Changes were made to the finalised Regulation in response to these comments. This change is not expected change costs to public authorities of over the life of the Regulation as users will still be required to complete mandatory refresher training.

New business licences deferred to a future amendment

The introduction of three new business licence categories proposed in the draft Regulation was removed from the finalised Regulation. During the consultation period health agencies in Queensland and Victoria, which also currently do not license pest management technician and fumigator businesses, were unable to confirm the timing of when these would be introduced in their jurisdictions. Introduction of business licences in NSW will now be progressed as a future standalone amendment to ensure the best possible harmonisation of cross-border licensing requirements is maintained, particularly with Victoria and Queensland. This change is expected to defer costs to industry of $234,000 which would otherwise have been spent in the first year of the Pesticides Regulation.

Several submissions included comments about the scope of licensing that the EPA considered were outside of the scope of the Regulation.

Training

Where submissions made mention of training, all were supportive of NSW maintaining mandatory training in safe pesticide use for persons who use pesticides in occupational settings. A number were explicitly supportive of the new quality-assurance program pathway to maintaining user competency and the finalised Regulation clarifies this can also include suitable stewardship programs.

Several training organisations raised the possibility of allowing refresher training in safe chemical use outside the formal requirements of the national vocational training system as is being trialled in South Australia from July 2017. This was considered to require further consultation with other NSW training providers and industry stakeholders.

One observed that persons who mix and load chemicals for aerial applicators should not be subject to the Regulation’s training requirement if they have completed the Association’s own ‘Spraysafe’ loader/mixer training. A new exclusion to this effect was added to the finalised Regulation. This change is expected to result in a saving of $231,000 to industry.

A number of submissions provided comments on appropriate training requirements for both licensees and occupational users who only need to undertake training. The EPA will consider these on their merits. They did not require any adjustments to the finalised Regulation because the EPA can stipulate required qualifications by an order published in the NSW Government Gazette.

Record keeping

Where submissions made mention of record keeping, all were supportive of NSW maintaining mandatory pesticide use record keeping for persons who use pesticides in occupational settings. A number were explicitly supportive of the move to simplify record keeping for non-licensed pesticide users.

Submissions from two industry associations however did not support the requirement for licensee’s clients to always be given a copy of the pesticide use record, on the basis that it adds to costs with computerised invoicing now being common-place. This is a requirement in the existing Regulation for all aerial applications but for pest management technicians and other service providers only when powered pesticide application equipment is used. In response to these comments and follow-up discussion in the finalised Regulation this provision was changed to an obligation to provide a copy of the record if requested by the client. Compared to the draft Regulation, this change is expected to reduce the incremental costs to industry of $205,474 over the life of the Regulation.

Several submissions raised further detailed matters regarding the information that must be recorded. Where appropriate minor changes were made in the finalised Regulation.

Notification

Where submissions made mention of notification, they were supportive of NSW maintaining its current pesticide use notification requirements. The EPA’s experience is that these provisions are popular in the general community. One submission posited a significant expansion of notification requirements in NSW.

Only one submission did not support the proposal to newly add NSW universities to the definition of public authorities required to give notice in accord with a publicly available pesticide use notification plan. Two other universities explicitly supported this in submissions and supportive informal comment was also made by others. The EPA has a range of resources available that will assist universities develop their notification plan, where this has not already occurred on a voluntary basis.

Penalties

Most submissions made no comments on the increase to the quanta of penalties in the proposed Regulation and where comments were made these were supportive. One submission noted that the dollar amounts penalties did not precisely align with the penalty unit amounts in the Regulation for court-imposed fines – this is a consequence of the $1500 ceiling on penalty infringement notices specified in the Pesticides Act.

Licence fees

Two submissions advocated that there should be reduced fees for larger organisations with larger numbers of technicians. Otherwise there was little comment on the fee changes.

No changes to the quanta of fees was made. However, a new provision was added to the finalised Regulation allowing the EPA to waive a licence or trainee permit fee, in full or part, as circumstances may justify. Fees for pest management technician and fumigator licences will remain significantly lower in NSW than is the case in Victoria and Queensland.

Other provisions

Definition – exempt ‘domestic like’ use of pesticide

Since 2002 the Regulation has contained an exemption to the record keeping and training and provisions for small scale use, similar to what may occur in a home and garden situation. Previously it was referred to as the small use exemption, in the remade Regulation it changed to domestic-like use exemption (cl. 4). Several submissions specifically expressed their support for this change.

The change did however lead to some comments of its effect in several submissions

• It should be clarified that using ‘hand-held equipment’ includes using a body-mounted knapsack and that it applies to bush care – the wording of the definition does in fact cover this.
• The quantities should be reduced —
  • as it allows up to 100 L of product to be made up from 1 L of concentrate– this is not correct as the definition explicitly places a 20 L ceiling on made-up product for it to apply.
  • to reduce risks to the community and persons with chemical sensitivity.
• It should be limited to domestic purposes where there is no fee or reward being offered for the work – this is in fact the case being dealt with by how provisions in the Regulation call up this definition.
• A requirement should be added that the label or permit must still be followed – this was considered unnecessary, as the exemption is only relevant to training, licensing and record keeping and this provision does not change the effect of section 15 of the Pesticides Act.

No changes were considered necessary to this definition in the finalised Regulation.

Miscellaneous provisions

Only three direct comments were made in submissions on miscellaneous provisions. One submission from suggested a minor change to the wording of the clause 57 - the EPA considered this unnecessary to meet the intent. Another submission suggested this clause could be expanded to allow use of products according to approved label instructions that apply in other states – the EPA concurs in-principle but considers this should be looked at once the outcomes of the current national process to harmonise off-label use rules has progressed further (see below for more on this). One submission suggested that the EPA should consult with stakeholders before Gazetting new competencies. This is always EPA practice and no changes to this provision are considered necessary.

Other matters

Some submissions made comments on matters that were outside the scope of the Regulation remake

• There should be a new standard condition on businesses mandating use of appropriately qualified technicians - this is already required by the Act and Regulation
• Additional conditional exemptions should be added requiring agricultural users to have a food safety plan - this is outside the scope of the Regulation and is covered by the NSW Food Safety legislative framework.
• The use of pindone and 1080 vertebrate bait products should be harmonised between the states – these controls are currently dealt with by relevant NSW pesticide control orders issued under the Pesticides Act. The EPA agrees with this aim and is working with other jurisdictions towards this.
• Further reforms were needed to achieve a one-stop-shop for the pest control industries dealing with government – this is being progressed through licensing reforms associated with the implementation of the NSW Biodiversity Conservation Act 2016.
• NSW should have more permissive off-label pesticides use laws that align with those of Victoria. This is outside the scope of the Pesticides Regulation remake and would require changes to the Pesticides Act. The national Agriculture Ministers forum in May 2017 resolved to develop a uniform national approach to off-label pesticide use by end 2018. The EPA and NSW Department of Primary Industries are closely involved in this process.
• Two submissions called for wide-ranging changes to the management of pesticides in Australia. One of these explicitly called for glyphosate and neonicotinoids to be banned, which is a matter for the Australian Pesticides and Veterinary Medicines Authority.