S.I. No. 382/1979 - European Communities (Dangerous Substances and Preparations) (Marketing and Use) Regulations, 1979.

S.I. No. 382 of 1979.

EUROPEAN COMMUNITIES (DANGEROUS SUBSTANCES AND PREPARATIONS) (MARKETING AND USE) REGULATIONS, 1979.

I, GENE FITZGERALD, Minister for Labour, in exercise of the powers conferred on me by section 3 of the European Communities Act, 1972 (No. 27 of 1972), for the purpose of giving effect to Council Directive No. 76/769/ EEC of 27 July, 1976, hereby make the following Regulations:

1. These Regulations may be cited as the European Communities (Dangerous Substances and Preparations) (Marketing and Use) Regulations, 1979.

2. (1) In these Regulations—

" dangerous preparation " means any preparation with a polychlorinated biphenyl or polychlorinated terphenyl content higher than 0.1% by weight;

" dangerous substance " means chloro-l-ethylene (monomer vinyl chloride), polychlorinated terphenyls and polychlorinated biphenyls, other than mono—and dichlorinated biphenyls;

"the directive" means Council Directive No. 76/769/EEC of 27 July, 1976*;

^*O.J. No. L262 of 27/9/1976, p. 201-203.

" inspector " means a person appointed by the Minister to be an inspector for the purposes of these Regulations;

" the Minister " means the Minister for Labour;

" preparation " means a mixture or solution composed of two or more substances;

" substance " means, except where the context otherwise requires, any chemical element and its compounds as it occurs in the natural state or as produced by industry.

(2) Nothing in these Regulations shall be construed as regulating or otherwise applying to the carriage of any substance or preparation by rail, road, inland waterway, sea or air.

(3) These Regulations shall not be construed as applying to any substance or preparation which is in transit in the State and which is subject to customs inspection and undergoes no process.

(4) The requirements of Regulations 3 and 4 of these Regulations shall not apply to—

( a ) any dangerous substance or dangerous preparation which is used, or is intended to be used, for any analysis or test in the course of any research, development or other scientific purpose,

( b ) any dangerous substance or dangerous preparation which is shown to the satisfaction of the Minister to be intended for export to a country or territory other than a Member State of the European Communities.

3. Subject to Regulation 2 (4) of these Regulations, a person shall not place on the market any electrical condenser the total weight of which is less than 1 Kg (2.20 lbs), not being an electrical condenser which was in use before the 27th day of July, 1976, in which a dangerous substance or a dangerous preparation is used in a manner other than in a manner mentioned in column (2) of the Schedule to these Regulations.

4. (1) Subject to Regulation 2 (4) of these Regulations and paragraphs (2) and (3) of this Regulation, a person shall not—

( a ) use chloro-l-ethylene (monomer vinyl chloride) for any purpose as an aerosol propellant,

( b ) use any other dangerous substance or dangerous preparation for any purpose other than a purpose which is mentioned in column (2) of the Schedule to these Regulations.

(2) Where polychlorinated biphenyls are used as a heat-transmitting fluid in a closed circuit heat-transfer installation and the installation is used for processing foodstuffs or feedingstuffs, or pharmaceutical or veterinary products, then if, and only if, immediately before the 3rd day of August, 1976, both the polychlorinated biphenyls and the installation were used as aforesaid, paragraph (1) of this Regulation shall not come into effect in relation to the installation until the 1st day of January, 1980.

(3) Where a dangerous substance or dangerous preparation is used as a hydraulic fluid in machinery servicing cells used for the electrolytic production of aluminium, then if, and only if, immediately before the 27th day of July, 1976, such a substance or preparation was used as aforesaid, paragraph (1) of this Regulation shall not come into effect in relation to the cells until the 1st day of January, 1980.

5. (1) An inspector shall have power to—

( a ) enter, inspect, examine and search at all reasonable times—

(i) any structure or any premises or other land which he has reasonable cause to believe is being used for or in connection with the manufacture, storage, packing or placing on the market of any dangerous substance or dangerous preparation,

(ii) any premises or other land on or in which he has reasonable cause to believe there is used any process involving the use of any such substance or preparation,

(iii) any ship or other vessel, aircraft, railway wagon or other vehicle in or on which he has reasonable cause to believe any such substance or preparation is present;

( b ) to take with him a member of the Garda Síochána if he has reasonable cause to apprehend any serious obstruction in the execution of his duty;

( c ) in case he enters any structure, premises or other land, ship or other vessel, aircraft or railway wagon or other vehicle, pursuant to this Regulation—

(i) to require the person who appears to him to be in charge of the structure, premises or other land, ship or other vessel, aircraft or railway wagon or other vehicle, to produce any dangerous substance or dangerous preparation which is in his possession or under his control,

(ii) to require such person, or any person employed in or on such structure, premises or other land, ship or other vessel, aircraft or railway wagon or other vehicle, to produce any books, records or other documents which relate to transactions concerning any such substance or preparation and which are in his possession or under his control, and

(iii) to inspect any such substance or preparation and any book, record or other document produced in pursuance of a requirement under this Regulation, and, if he thinks fit, copy any entry in such book, record or document;

( d ) to make such examination and inquiry as may be necessary to ascertain whether the provisions of these Regulations are being complied with;

( e ) in case in the course of exercising a power conferred on him by subparagraph (a) of this paragraph he finds any such substance or preparation in or on any structure, premises or other land, ship or other vessel, aircraft or railway wagon or other vehicle, to require the person who appears to him to be in charge or control of such substance or preparation to give to him such information as it is in his power to give as to who is the owner of the substance or preparation;

( f ) to examine the stock of any such substance or preparation which he finds in the course of an inspection pursuant to this Regulation;

( g ) where he has reasonable cause to believe that at or on any structure, premises or other land, ship or other vessel, aircraft or railway wagon or other vehicle, a contravention of these Regulations has been or is being committed, to use force where necessary in order to enter the structure, premises or other land, ship or other vessel, aircraft or railway wagon or other vehicle, provided he is so authorised by a warrant of a Justice of the District Court (which such Justice is hereby authorised to issue upon reasonable ground being assigned on oath), or, if it appears to him to be a case of emergency and that the delay in obtaining a warrant would be likely to endanger life, without being so authorised; and

( h ) for the purpose of any examination or inquiry under this Regulation to require any person whom he finds on any such structure, premises or other land, ship or other vessel, aircraft or railway wagon or other vehicle, or whom he has reasonable cause to believe to be, or to have been within the preceding two months, employed at or on the structure, premises or other land, ship or other vessel, aircraft or railway wagon or other vehicle, to answer, in the absence of persons other than a person nominated by him to be present and any persons whom the inspector may allow to be present, such questions as the inspector thinks fit to ask, provided that any answer given by a person in pursuance of a requirement imposed under this paragraph shall not be admissible without his consent in any proceedings.

(2) Where an inspector in the course of exercising a power conferred on him by paragraph (1) (a) of this Regulation finds any thing which he reasonably believes to be a dangerous substance or a dangerous preparation, the owner thereof, the person who appears to the inspector to be in charge or in control thereof and any person who is the servant or agent of such owner shall enable the inspector to use any thing which is then under such occupiers' or person's control and required by the inspector for the purpose of making an examination, inspection or search pursuant to this Regulation or the taking of a sample pursuant to Regulation 6 of these Regulations.

(3) If any person wilfully delays an inspector in the exercise of any power under this Regulation, or fails to comply with a requisition of an inspector made in pursuance of this Regulation or wilfully withholds any information as to who is the owner of a dangerous substance or dangerous preparation found by an inspector in the course of exercising a power conferred on him by paragraph (1) (a) of this Regulation, or prevents, or attempts to prevent, a person from appearing before or being examined by an inspector, that person shall be deemed to obstruct an inspector in the execution of his duties under these Regulations.

6. (1) An inspector may, at any time after informing either the owner of a substance or preparation found by him in the course of exercising a power conferred on him by Regulation 5 (1) (a) of these Regulations or a person who appears to him to be in charge or in control of, or to have other responsibilities as regards, such substance or preparation, take for analysis sufficient samples of the substance or preparation if he reasonably believes the substance or preparation to be either a dangerous substance or a dangerous preparation and if the substance or preparation is one in relation to which he reasonably suspects a contravention of any of these Regulations.

(2) The owner or other person referred to in paragraph (1) of this Regulation may, at the time when a sample is being taken under this Regulation and on supplying the necessary appliances, require the inspector to divide the sample into three parts, to mark and seal or fasten up each part in such manner as its nature permits, and—

( a ) to deliver to him one part,

( b ) to retain one part for future comparison,

( c ) to submit one part for analysis,

and any analysis under this Regulation shall, if the person by whom the requisition under this paragraph is made so requires, be carried out by or under the direction of the State Chemist or a person who is for the time being approved of for the purposes of this Regulation by the Minister.

(3) A certificate purporting to be a certificate by the State Chemist or a person who is for the time being approved of for the purposes of this Regulation by the Minister as to the result of an analysis of a sample taken under this Regulation shall in any proceedings for an alleged offence under these Regulations be admissible as evidence of the matters stated therein, but either party may require the person by whom the analysis was made to be called as a witness.

(4) It shall not be lawful for any person, except in so far as is necessary for the purposes of a prosecution for an offence under these Regulations, to publish or disclose to any person other than the owner of the relevant substance or preparation (at the time when the sample was taken) or the Minister the results of an analysis made under this Regulation.

7. The Minister shall furnish an inspector with a certificate of his appointment and when exercising any powers conferred by these Regulations, the inspector shall, if requested by any person affected, produce the certificate to that person.

8. (1) An offence under these Regulations may be prosecuted by the Minister.

(2) Notwithstanding section 10 (4) of the Petty Sessions (Ireland) Act, 1851, proceedings for an offence under these Regulations may be instituted at any time within one year after the date of the offence.

9. (1) A person who contravenes Regulation 3 or 4 (1) of these Regulations shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £600.

(2) Any person who contravenes Regulation 6 (4) of these Regulations shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £300.

(3) Any person who—

( a ) obstructs or interferes with an inspector in the course of exercising a power conferred on him by these Regulations,

( b ) fails to comply with a requisition made by an inspector under these Regulations,

shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £100.

10. In any proceedings for an offence under these Regulations and in which it is alleged that there was a contravention of Regulation 3 or 4 (1) of these Regulations it shall not be necessary to prove either of the following, namely, that the dangerous substance or dangerous preparation to which the alleged offence relates was not used for any analysis or test or in the course of any research, development or other scientific purpose or that such substance or preparation was not intended to be so used and the onus of proving that such substance or preparation was so used or was intended to be so used shall be on the person against whom the proceedings are instituted.

SCHEDULE.

GIVEN under my Official Seal, this 30th day of November, 1979.

GENE FITZGERALD,

Minister for Labour.

EXPLANATORY NOTE.

These Regulations limit the marketing and use of polychlorinated biphenyls (PCBs) and polychlorinated terphenyls (PCTs) and ban the use of monomer vinyl chloride as an aerosol propellant.