S.I. No. 279/2011 - Fluorinated Greenhouse Gas Regulations 2011.

Notice of the making of this Statutory Instrument was published in

“Iris Oifigiúil” of 17th June, 2011.

I, PHIL HOGAN, Minister for the Environment, Community and Local Government, 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 Regulation (EC) No 842/2006¹ of the European Parliament and of the Council of 17 May 2006 on certain fluorinated greenhouse gases, hereby make the following Regulations:

Citation and Commencement

1. (1) These Regulations may be cited as Fluorinated Greenhouse Gas Regulations 2011.

(2) The Regulations come into operation on 20 June 2011.

Interpretation

2. (1) In these Regulations—

“Act of 1992” means Environmental Protection Agency Act 1992 (No. 7 of 1992);

“Agency” means the Environmental Protection Agency;

“Authorised Officer” means a person appointed in writing by the Agency;

“Competent Authority” means the Agency as provided by Environment Protection Agency Act 1992 (Fluorinated Greenhouse Gas) Regulations 2011 S.I. No. 278 of 2011 ;

“Commission” means the Commission of the European Communities;

“Minister” means the Minister for the Environment, Community and Local Government;

“official translation” means a copy of the original certificate translated as appropriate with a declaration by the person or the company who did the translation that it is a true and accurate translation;

“person” means any natural or legal person;

“premises” includes, as respects entry pursuant to Regulation 9 paragraph (4), any messuage, building, vessel, vehicle, aircraft, container, structure or land (whether or not there are structures on the land or whether or not the land is covered with water) or any hereditament of any tenure, together with any out-buildings and curtilage;

“record” includes, in addition to a record in writing—

(a) a disc, tape, sound-track or other device in which information, sounds or signals are embodied so as to be capable (with or without the aid of some other instrument) of being reproduced in legible or audible form,

(b) a film, tape or other device in which visual images are embodied so as to be capable (with or without the aid of some other instrument) of being reproduced in visual form, and

(c) a photograph,

and any reference to a copy of a record includes—

(i) in the case of a record to which paragraph (a) applies, a transcript of the sounds or signals embodied therein,

(ii) in the case of a record to which paragraph (b) applies, a reproduction of the images embodied therein, and

(iii) in the case of a record to which paragraphs (a) and (b) apply, such a transcript together with such a reproduction of the images.

“Regulation 842/2006” means Regulation (EC) No 842/2006 of the European Parliament and of the Council of 17 May 2006 on certain fluorinated greenhouse gases;

“Regulation 1493/2007”² means Commission Regulation (EC) No 1493/2007 of 17 December 2007 establishing, pursuant to Regulation (EC) No 842/2006 of the European Parliament and of the Council, the format for the report to be submitted by producers, importers and exporters of certain fluorinated greenhouse gases;

“Regulation 1494/2007”³ means Commission Regulation (EC) No 1494/2007 of 17 December 2007 establishing, pursuant to Regulation EC No 842/2006 of the European Parliament and of the Council, the form of labels and additional labelling requirements as regards products and equipment containing certain fluorinated greenhouse gases;

“Regulation 1497/2007”⁴ means Commission Regulation (EC) No 1497/2007 of 18 December 2007 establishing, pursuant to Regulation (EC) No 842/2006 of the European Parliament and of the Council, standard leakage checking requirements for stationary fire protection systems containing certain fluorinated greenhouse gases;

“Regulation 1516/2007”⁵ means Commission Regulation (EC) No 1516/2007 of 19 December 2007 establishing, pursuant to Regulation (EC) No 842/2006 of the European Parliament and of the Council, standard leakage checking requirements for stationary refrigeration, air conditioning and heat pump equipment containing certain fluorinated greenhouse gases;

“Regulation 303/2008”⁶ means Commission Regulation (EC) No 303/2008 of 2 April 2008 establishing, pursuant to Regulation (EC) No 842/2006 of the European Parliament and of the Council, minimum requirements and the conditions for mutual recognition for the certification of companies and personnel as regards stationary refrigeration, air conditioning and heat pump equipment containing certain fluorinated greenhouse gases;

“Regulation 304/2008”⁷ means Commission Regulation (EC) No 304/2008 of 2 April 2008 establishing, pursuant to Regulation (EC) No 842/2006 of the European Parliament and of the Council, minimum requirements and the conditions for mutual recognition for the certification of companies and personnel as regards stationary fire protection systems and fire extinguishers containing certain fluorinated greenhouse gases;

“Regulation 305/2008”⁸ means Commission Regulation (EC) No 305/2008 of 2 April 2008 establishing, pursuant to Regulation (EC) No 842/2006 of the European Parliament and of the Council, minimum requirements and the conditions for mutual recognition for the certification of personnel recovering certain fluorinated greenhouse gases from high-voltage switchgear;

“Regulation 306/2008”⁹ means Commission Regulation (EC) No 306/2008 of 2 April 2008 establishing, pursuant to Regulation (EC) No 842/2006 of the European Parliament and of the Council, minimum requirements and the conditions for mutual recognition for the certification of personnel recovering certain fluorinated greenhouse gas-based solvents from equipment;

“Regulation 307/2008”¹⁰ means Commission Regulation (EC) No 307/2008 of 2 April 2008 establishing, pursuant to Regulation (EC) No 842/2006 of the European Parliament and of the Council, minimum requirements for training programmes and the conditions for mutual recognition of training attestations for personnel as regards air-conditioning systems in certain motor vehicles containing certain fluorinated greenhouse gases;

“Regulation 308/2008”¹¹ means Commission Regulation (EC) No 308/2008 of 2 April 2008 establishing, pursuant to Regulation (EC) No 842/2006 of the European Parliament and of the Council, the format for notification of the training and certification programmes of the Member States.

“Implementing Regulations” mean any or all of the following: Regulation 1493/2007, Regulation 1494/2007, Regulation 1497/2007, Regulation 1516/2007, Regulation 303/2008, Regulation 304/2008, Regulation 305/2008, Regulation 306/2008, Regulation 307/2008 and Regulation 308/2008.

(2) In these Regulations—

(a) a reference to a Regulation which is not otherwise identified is a reference to a Regulation of these Regulations;

(b) a reference to a Schedule which is not otherwise identified is a reference to a Schedule of these Regulations;

(c) a reference to a paragraph or subparagraph is a reference to a paragraph or subparagraph of the provisions of these Regulations in which the reference occurs;

(d) a letter, word, phrase or symbol which has been assigned a meaning by Regulation 842/2006 has that meaning in these Regulations except where otherwise indicated;

(e) a letter, word, phrase or symbol which has been assigned a meaning by Regulation 1493/2007 has that meaning in these Regulations except where otherwise indicated;

(f) a letter, word, phrase or symbol which has been assigned a meaning by Regulation 1494/2007 has that meaning in these Regulations except where otherwise indicated;

(g) a letter, word, phrase or symbol which has been assigned a meaning by Regulation 1497/2007 has that meaning in these Regulations except where otherwise indicated;

(h) a letter, word, phrase or symbol which has been assigned a meaning by Regulation 1516/2007 has that meaning in these Regulations except where otherwise indicated;

(i) a letter, word, phrase or symbol which has been assigned a meaning by Regulation 303/2008 has that meaning in these Regulations except where otherwise indicated;

(j) a letter, word, phrase or symbol which has been assigned a meaning by Regulation 304/2008 has that meaning in these Regulations except where otherwise indicated;

(k) a letter, word, phrase or symbol which has been assigned a meaning by Regulation 305/2008 has that meaning in these Regulations except where otherwise indicated;

(l) a letter, word, phrase or symbol which has been assigned a meaning by Regulation 306/2008 has that meaning in these Regulations except where otherwise indicated;

(m) a letter, word, phrase or symbol which has been assigned a meaning by Regulation 307/2008 has that meaning in these Regulations except where otherwise indicated; and

(n) a letter, word, phrase or symbol which has been assigned a meaning by Regulation 308/2008 has that meaning in these Regulations except where otherwise indicated.

Objective and Scope

3. (1) These Regulations make provisions necessary for implementation of Regulation 842/2006 in Ireland.

(2) The scope of these Regulations shall be that stated in Article 1 of Regulation 842/2006.

Savings

4. (1) A person shall not be entitled solely by reason of compliance with these Regulations to:

(a) produce, import, export, operate, recover, replace, destroy, recycle, reclaim, use, handle,supply, place on the market or distribute a fluorinated greenhouse gas, or

(b) install, service, maintain, check for leakage, repair, dismantle, destroy or dispose of products or equipment containing a fluorinated greenhouse gas.

User Responsibility

5. (1) Operators of—

(a) stationary applications referred to in Article 3(1) of Regulation 842/2006 or,

(b) stationary equipment referred to in Article 4(1) of Regulation 842/2006,

shall comply with the provisions of Regulation 842/2006 and these Regulations.

(2) A company involved in carrying out activities described in Articles 3 or 4 of Regulation 842/2006 shall not take delivery of fluorinated greenhouse gases unless the relevant personnel hold a certificate referred to in Regulation 11 of these Regulations.

(3) A producer of fluorinated greenhouse gases to whom Article 6(1)(a) of Regulation 842/2006 applies shall comply with the requirements of that Article and any other relevant provision of Regulation 842/2006.

(4) An importer of fluorinated greenhouse gases to whom Article 6(1)(b) of Regulation 842/2006 applies shall comply with the requirements of that Article and any other relevant provision of Regulation 842/2006.

(5) An exporter of fluorinated greenhouse gases to whom Article 6(1)(c) of Regulation 842/2006 applies shall comply with the requirements of that Article and any other relevant provision of Regulation 842/2006.

(6) Operators to whom the provisions of Article 3 or 4 of Regulation 842/2006 apply, and producers, importers and exporters to whom the provisions of Article 6 of Regulation 842/2006 apply, shall also comply with any guidance issued by the Agency under Regulation 8(4) of these Regulations.

Designation of Competent Bodies

6. (1) The Minister may as appropriate designate a person or persons, or association, or body corporate or statutory body as a certification body for the certification of personnel for the purposes of Article 10 of Regulation 303/2008, Article 10 of Regulation 304/2008, Article 5 of 305/2008 and Article 4 of 306/2008.

(2) The Minister may as appropriate designate a person or persons, or association, or body corporate or statutory body as an evaluation body for the purposes of organizing examinations to provide for the provisions of Article 11 of Regulation 303/2008, Article 11 of Regulation 304/2008, Article 6 of 305/2008 and Article 5 of 306/2008.

(3) The Minister may as appropriate designate a person or persons, or association, or body corporate or statutory body as an attestation body for the purposes of Article 3.1 of Regulation 307/2008.

(4) The Minister may as appropriate designate a person or persons, or association, or body corporate or statutory body as a certification body for the certification of companies for the purposes of Article 10 of Regulation 303/2008 and Article 10 of Regulation 304/2008.

Responsibilities of Competent Bodies

7. (1) A competent body designated under Regulation 6(1) shall be responsible as appropriate for the certification of personnel for the purposes of Article 5 of Regulations 303/2008 and 304/2008, Article 4 of 305/2008 and Article 3 of 306/2008.

(2) A competent body designated under Regulation 6(2) shall be responsible as appropriate for the organisation of examinations for the purposes of compliance with Article 11 of Regulations 303/2008 and 304/2008, Article 6 of 305/2008 and Article 5 of 306/2008.

(3) A competent body designated under Regulation 6(3) shall be responsible as appropriate for the issuance of a training attestation in accordance with Article 3(2) and 3(3) of Regulation 307/2008.

(4) A competent body designated under Regulation 6(4) shall be responsible as appropriate for the certification of companies for the purposes of Article 8 of Regulation 303/2008 and Article 8 of Regulation 304/2008.

Competent Authority

8. (1) The Agency is the competent authority for the purposes of Regulation 842/2006 and its implementing Regulations.

(2) The Agency shall be responsible for compliance, monitoring and enforcement of these Regulations, Regulation 842/2006 and its implementing Regulations.

(3) The Agency shall, for the purposes of sub-paragraph (2), carry out or cause to be carried out inspections by persons as it considers appropriate.

(4) The Agency may provide guidance on any technical or administrative matter for the purpose of Regulation 842/2006 and its implementing Regulations.

(5) The Agency shall, in accordance with Article 6(4) of Regulation 842/2006, establish reporting systems for the relevant sectors referred to in the said Regulation.

Authorised Officer

9. (1) The Agency may appoint in writing one or more of its officers, as it considers appropriate, to be an authorised officer or authorised officers for the purposes of ensuring compliance with these Regulations.

(2) Every authorised officer appointed under this Regulation shall be furnished with a warrant of his or her appointment and shall if requested by any person thereby affected, produce such warrant of appointment to that person for inspection.

(3) An appointment under this Regulation shall cease—

(a) if the Agency revokes the appointment,

(b) in the case of an appointment that is for a fixed period, on the expiry of the period, or

(c) if the person appointed ceases to be an officer of the Agency.

(4) An authorised officer may, for the purposes of these Regulations—

(a) subject to paragraph (7) enter on any premises at all reasonable times between the hours of 9 a.m. and 6 p.m. or, if there is an imminent threat of environmental damage, at any time for any purpose connected with these Regulations,

(b) at such premises do all things reasonably necessary for the purpose for which the entry is made and, in particular:

(i) may survey, carry out inspections, examinations and checks of, take photographs, take samples, and take measurements,

(ii) examine any plant, machinery, equipment, installation or matter on the premises,

(iii) make enquiries relating to the occupational activity or any process or procedure carried out on the premises,

(iv) examine preventive or remedial works being carried out on the premises,

(v) require that the premises and anything at it be left undisturbed for so long as is reasonably necessary for a purpose referred to at subparagraph (i), (ii), (iii) or (iv), or

(vi) do any thing as may be required by the Agency for the proper performance of its functions under these Regulations,

(c) at such premises inspect and take copies of, any books, records, other documents (including documents stored in non-legible form) or extracts there from, which he or she finds in the course of his or her inspection,

(d) remove such photographs, samples, books, records or documents from such premises and detain them for such period as he or she reasonably considers to be necessary for the purposes of his or her functions under these Regulations,

(e) require the operator or company or producer or importer or exporter or his or her agent or employee or any person at the premises or person in charge of the premises and any person employed there to give to him or her such assistance and information and to produce to him or her such books, documents or other records (and in the case of documents or records stored in non-legible form, produce to him or her a legible reproduction thereof) that are in that person’s power or procurement, as he or she may reasonably require for the purposes of his or her functions under these Regulations,

(f) direct that any matter or thing not be moved from the premises without his or her consent,

(g) secure for later inspection any premises or part of any premises for as long as is reasonably necessary for the purposes of any examination or investigation or any other purpose connected with these Regulations.

(5) When performing a function under these Regulations, an authorised officer may, subject to any warrant under paragraph (6), be accompanied by such number of authorised officers or members of the Garda Síochána as he or she considers appropriate.

(6) An authorised officer shall not enter a dwelling other than—

(a) with the consent of the occupier, or

(b) in accordance with a warrant issued under paragraph (8).

(7) In relation to the placing on the market of products and equipment containing, or whose use requires fluorinated greenhouse gases as listed in Annex II of Regulation 842/2006, an Authorised Officer may take all reasonable measures, including such of the following as is decided to be appropriate in each case—

(a) issue a direction prohibiting the placing of the product on the market, or

(b) if already on the market, take all appropriate steps, including if necessary issuing a direction, to ensurethe immediate withdrawal from the marketplace, its recall from final users and its environmentally sound management.

(8) Upon the sworn information of an authorised officer, a judge of the District Court may, if satisfied that there are reasonable grounds for believing that an activity relating to the production, containment, use, recovery, or destruction of fluorinated gases listed in Annex 1 of Regulation 842/2006 is being carried on in a dwelling or that samples, books, records or other documents (including documents in non-legible form referred to in paragraph (4)(e)) are being kept or stored in any dwelling, issue a warrant authorising a named authorised officer accompanied by such other authorised officers or members of the Garda Síochána as may be necessary, at any time or times, not later than one month from the date of issue of the warrant, to enter the dwelling and perform the functions of an authorised officer under subparagraphs (a) to (g) of paragraph (4).

(9) Any person who obstructs or interferes with an authorised officer or a member of the Garda Síochána in the course of exercising a power conferred on him or her by these Regulations or a warrant under paragraph (8), or impedes the exercise by the officer or member, as the case may be, of such power, or fails or refuses to comply with a request or requirement of, or to answer a question asked by, the officer or member pursuant to this section, or in purported compliance with such request or requirement or in answer to such question gives information to the officer or member that he or she knows to be false or misleading in any material respect, is guilty of an offence.

(10) Where an authorised officer believes, upon reasonable grounds, that a person has committed an offence under this Act he or she may require that person to provide him or her with his or her name and the address at which he or she ordinarily resides.

(11) A person who falsely represents himself or herself to an authorised officer is guilty of an offence.

Interim Certificates

10. (1) Until 4 July 2011, persons who hold a City & Guilds Certificate under the Handling Refrigerants Scheme 2078 or equivalent, obtained before the date of the coming into force of these Regulations, is the holder of an interim certificate for the purpose of Article 6.2 of Regulation 303/2008.

Certification of Individuals

11. (1) For the purposes of:

(a) carrying out activities referred to in Article 2(1) of Regulation 303/2008,

(b) carrying out activities referred to in Article 2(2) of Regulation 304/2008,

(c) recovering certain fluorinated greenhouse gases from high voltage switch gear as set out in Article 1 of Regulation 305/2008,

(d) recovering certain fluorinated greenhouse gas based solvents as set out in Article 1 of Regulation 306/2008, or

(e) recovering certain fluorinated greenhouse gases from air-conditioning systems in motor vehicles as set out in Article 1 of Regulation 307/2008,

a person who has obtained one or more of the awards listed in Schedule1 or an equivalent award or awards is deemed qualified to carry out the relevant activities at (a) to (e) to which the award or awards apply.

(2) A person who holds a certificate or training attestation issued under Article 5 of Regulations 303/2008 and 304/2008, Article 4 of Regulation 305/2008 and Article 3 of Regulation 306/2008 and 307/2008 in a European Economic Area State may carry out the activity to which the certificate or training attestation refers if:—

(a) the certificate or training attestation is written in English, or

(b) the person holds an official translation of the certificate or training attestation in English.

Offences

12. (1) A person who:

(a) carries out activities referred to in Article 2(1) of Regulation 303/2008,

(b) carries out activities referred to in Article 2(1) of Regulation 304/2008,

(c) recovers certain fluorinated greenhouse gases from high voltage switch gear as set out in Article 1 of Regulation 305/2008,

(d) recovers certain fluorinated greenhouse gas based solvents as set out in Article 1 of Regulation 306/2008, or

(e) recovers certain fluorinated greenhouse gases from air-conditioning systems in motor vehicles as set out in Article 1 of Regulation 307/2008,

and does not hold an appropriate award or awards as specified in Schedule 1, or an appropriate certificate or training attestation as specified at Regulation 11(2), is guilty of an offence.

(2) A person who—

(a) contravenes or fails to comply with a provision or provisions of these Regulations, or of Regulations 842/2006 or its Implementing Regulations, or

(b) provides information which is false, or to his or her knowledge misleading in a material way,

is guilty of an offence.

(3) Where an offence under these Regulations is committed by a body corporate and is proved to have been so committed with the consent, connivance of or to be attributable to any neglect on the part of a person, being a director, manager, secretary or other officer of the body corporate, or a person who was purporting to act in any such capacity, that person, as well as the body corporate, is guilty of an offence and is liable to be proceeded against and punished as if he or she were guilty of the first mentioned offence.

(4) Regulation 12(1)(a) shall not apply to:

(a) categories of personnel listed at Article 4(3)(a), (b) or (c) of Regulation 303/2008, or

(b) personnel who hold interim certificates in accordance with Article 6 of Regulation 303/2008.

Penalties

13. (1) A person guilty of an offence under these Regulations or Regulation 842/2006 or its Implementing Regulations is liable—

(a) on summary conviction to a fine not exceeding a Class A fine or to imprisonment for a term not exceeding 12 months, or both, or

(b) on conviction on indictment, to a fine not exceeding €500,000 or to imprisonment for a term not exceeding 3 years, or both.

Prosecution of Offences

14. (1) An offence arising from a contravention of a provision of these Regulations may be prosecuted summarily by the Agency.

(2) Notwithstanding the provisions of section 10(4) of the Petty Sessions (Ireland) Act, 1851, summary proceedings for an offence under these Regulations may be initiated at any time within 2 years from the date of the commission of the offence.

(3) A certificate signed by or on behalf of the person initiating the proceedings as to the date on which evidence relating to the offence came to his or her knowledge shall be prima facie evidence thereof and in any legal proceedings a document purporting to be a certificate issued for the purposes of this Regulation and to be so signed shall be deemed to be so signed and shall be admitted as evidence without proof of the signature of the person purporting to sign the certificate, unless the contrary is shown.

(4) Proceedings under this Regulation shall be without prejudice to the power of other competent bodies concerned to take proceedings under other statutory provisions applying to them.

Cost of a Prosecution

15. (1) Where a person is convicted of an offence under these Regulations the court shall, unless it is satisfied that there are special and substantial reasons for not so doing, order the person to pay to the Agency the costs and expenses measured by the court, incurred by the Agency in relation to the investigation, detection and prosecution of the offence, including costs and expenses incurred in the taking of samples, the carrying out of tests, examinations and analyses and in respect of the remuneration and other expenses of directors, employees, consultants and advisers, as the case may be.

SCHEDULE 1

F gas Qualifications

FAS Apprenticeships post 2010

GIVEN under the Official Seal of the Minister for the Environment, Community and Local Government,

14 June 2011.

PHIL HOGAN, T.D.,

Minister for the Environment, Communityand Local Government.

EXPLANATORY NOTE

(This note is not part of the Instrument and does not purport to be a legal interpretation.)

These Regulations make provisions necessary for the purposes of full and effective implementation in Ireland of Regulation (EC) No 842/2006 on certain fluorinated greenhouse gases. The main provisions of the Regulations are:

• Regulation 5 — contains various requirements to be met by operators of stationary applications and equipment which contain certain fluorinated greenhouse gases, by producers, importers or exporters of certain fluorinated greenhouse gases and by companies taking delivery of greenhouse gases;

• Regulation 6 — provides for designation of a number of competent bodies to administer specific provisions of Regulation (EC) No 842/2006 in Ireland;

• Regulation 7 — provides for various responsibilities of competent bodies designated for the purpose of giving effect to Regulation (EC) No 842/2006;

• Regulation 8 — assigns duties to the Environmental Protection Agency as the competent authority for the purposes of Regulation (EC) No 842/2006;

• Regulation 9 — provides for appointment and various functions of an Authorised Officer;

• Regulation 11 — sets out qualification requirements for persons carrying out activities such as leakage checking, recovery, installation, maintenance or servicing of applications and equipment containing certain fluorinated greenhouse gases;

• Regulation 12 — sets out various offences for persons carrying out activities involving certain fluorinated greenhouse gases without appropriate qualifications or for their failure to comply with the provisions of these Regulations, or Regulation 842/2006 or its implementing regulations;

• Regulation 13 — a person found guilty of an offence shall be liable upon summary conviction to a fine not exceeding a Class A fine or imprisonment for a term of up to one year or both, or upon conviction on indictment, to a fine of up to €500,000 or imprisonment for a term of up to three years, or both;

• Regulation 14 — provides for procedures for prosecution of offences by the Environmental Protection Agency;

• Regulation 15 — provides arrangements for the payment of costs of a prosecution to the Environmental Protection Agency.

1 O.J. No. L 161/1 of 14 June 2006

2 O.J. No. L 332/7 of 18 December 2007

3 O.J. No. L 332/25 of 18 December 2007

4 O.J. No. L 333/4 of 19 December 2007

5 O.J. No. L 333/10 of 20 December 2007

6 O.J. No. L 92/3 of 3 April 2008

7 O.J. No. L 92/12 of 3 April 2008

8 O.J. No. L 92/17 of 3 April 2008

9 O.J. No. L 92/21 of 3 April 2008 corrected by a corrigendum published in O.J. No. L 280/38 of 23 October 2008

10 O.J. No. L 92/25 of 3 April 2008

11 O.J. No. L 92/28 of 3 April 2008