Chemical Enforcement

Appointment of Inspectors

A national authority may appoint such and so many persons as it considers appropriate to be inspectors for the purposes of the enforcement of all or any of the relevant chemicals statutory provisions within its relevant area of responsibility. An inspector shall be furnished with a certificate of his or her appointment as an inspector by that national authority.

When exercising a power conferred on him or her an inspector shall, if requested by a person affected, produce the certificate of his or her appointment or a copy of it to that person and a form of personal identification.An appointment under this section shall cease when the national authority that made the appointment revokes the appointment.

Powers of  Inspectors

An inspector shall, for the purposes of the relevant chemicals statutory provisions, have power to do any one or more of the following:

• enter, inspect, examine and search any place to which the inspector has reasonable grounds for believing that the relevant chemicals statutory provisions apply;
• inquire into, search, examine and inspect any place referred to any activity, installation, process, procedure or matter at that place, and any chemicals or records relating to it,
• to ascertain whether the relevant chemicals statutory provisions have been or are being complied with and, for that purpose, take with him or her and use any equipment or materials he or she considers necessary;
• require that that place and anything at it be left undisturbed for so long as is reasonably necessary for the purpose of any search, examination, investigation, inspection or inquiry under the relevant chemicals statutory provisions;
• require the person in charge to produce to the inspector any chemical to which the relevant chemicals statutory provisions apply which is in the possession or under the control of such person, and any records and, in the case of such information in a non-legible form, to reproduce it in a legible form and to give to the inspector such information as the inspector may reasonably require in relation to any entries in those records;
• inspect and take copies of or extracts from any such records or any electronic information system at that place, including in the case of information in a non-legible form, copies of or extracts from such information in a permanent legible form or require that such copies be provided;
• require a person at that place by whom or on whose behalf a computer is or has been used to produce or store records or any person having control of, or otherwise concerned with the operation of the computer, to afford the inspector access thereto and all reasonable assistance as the inspector may require;
• remove from that place and retain the records (including documents stored in a non-legible form) and copies taken and detain the records for such period as the inspector reasonably considers to be necessary for further examination or until the conclusion of any legal proceedings;
• require that records at that place be maintained for such period as may be reasonable;
• require the person in charge to give the inspector such information as the inspector may reasonably require for the purposes of any search, examination, investigation, inspection or inquiry under the relevant chemicals statutory provisions;
• require the person in charge to give the inspector such assistance and facilities within the person’s power or control as are reasonably necessary to enable the inspector to exercise any of his or her powers under the relevant chemicals statutory provisions;
• require by notice, at a time and place specified in the notice, any person (including the person in charge) to give the inspector any information that the inspector may reasonably require in relation to the place, any chemical, activity, installation or procedure at the place, and to produce to the inspector any records that are under that person’s power or control;
• examine any person whom the inspector reasonably believes to be able to give to the inspector information relevant to any search, examination, investigation, inspection or inquiry under the relevant chemicals statutory provisions and require the person to answer such questions as the inspector may ask relative to the search, examination, investigation, inspection or inquiry and to sign a declaration of the truth of the answers;
• require that any procedure be followed for the purposes of any search, examination, investigation, inspection or inquiry under the relevant chemicals statutory provisions;
• take any measurements or photographs or make any tape, electrical or other recordings that the inspector considers necessary for the purposes of any search, examination, investigation, inspection or inquiry under the relevant chemicals statutory provisions;
• take samples of air, soil, water or waste at or near that place;
• where appropriate, install, use and maintain at that place monitoring instruments, systems and seals for the purposes of the relevant chemicals statutory provisions;
• there, or at any other place, carry out, or have carried out, such testing, examination or analysis of any chemical found at that place, as he or she reasonably considers to be necessary, and for that purpose—require the person in charge to supply the inspector without charge any chemical or samples thereof, or remove any chemical or samples thereof;
• cause any chemical found at that place in respect of which there has been or there appears to the inspector to have been a contravention of the relevant chemicals statutory provisions, to be subjected to any testing, examination or analysis in accordance with paragraph (q) (but not so as to damage or destroy it unless this is necessary for the purposes of the relevant chemicals statutory provisions) and where an inspector proposes to exercise the power conferred by this subsection in the case of a chemical found at any place, he or she shall, if so requested by the person in charge, cause anything that is to be done by virtue of that power to be done in the presence of that person;
• remove and retain for such period as is necessary any chemical found at that place for all or any of the following purposes:to examine or arrange for the examination, testing or analysis of the chemical; to ensure that it is not tampered with before the examination of it is completed; to ensure that it is available for use as evidence in any proceedings;
• where necessary require the disposal of a chemical in respect of which there has been or there appears to the inspector to have been a contravention of the relevant chemicals statutory provisions at the expense of the person in charge, or remove that chemical and arrange for it to be disposed of at the expense of the person in charge, and require that such disposal shall be such as will prevent the chemical from being used or placed on the market, and in compliance with requirements under the Waste Management Acts 1996 to 2003;
• require the removal from the market of a chemical by the person who has placed that chemical on the market, where it appears to the inspector that, in relation to that chemical, the relevant chemicals statutory provisions have been contravened.

Search

Where a chemical is found at a place, and an inquiry is made by an inspector in the course of a search, examination, investigation or inspection as to the identity of the person who supplied that chemical, the person in charge shall give the inspector the name and address of the supplier from whom the chemical was purchased or otherwise obtained.

Before exercising several of the powers conferred, an inspector shall, in so far as it is practicable, consult such persons as appear to him or her to be appropriate for the purpose of ascertaining what dangers, if any, there may be in doing what he or she proposes to do under those paragraphs.

Where under the powers conferred an inspector removes and retains any chemical found at a place, he or she shall, in so far as is practicable, take a sample thereof and give it to the person in charge, marked by the inspector in a manner sufficient to identify it.

An inspector shall not enter a dwelling other than—

• with the consent of the occupier, or
• in accordance with a warrant of the District Court issued authorising such entry.

A national authority may authorise any other person as it considers appropriate to accompany an inspector in the performance of his or her functions.

Where an inspector in the exercise of his or her powers is prevented from entering any place, an application may be made to the District Court for a warrant authorising such entry.

Without prejudice to the powers conferred on an inspector by or under any other provision of this section, if a judge of the District Court is satisfied by information on oath of an inspector that there are reasonable grounds for believing that—

• there are any chemicals at any place or any records (including documents stored in a non-legible form) or information, relating to a place, that the inspector requires to inspect for the purposes of the relevant chemicals statutory provisions, held at any place, or
• there is, or such an inspection is likely to disclose, evidence of a contravention of the relevant chemicals statutory provisions,

the judge may issue a warrant authorising an inspector, accompanied by such other inspectors or such other competent persons as may be appropriate or members of the Garda Síochána as may be necessary, at any time or times, within one month from the date of issue of the warrant, on production of the warrant if requested, to enter the place, if necessary by the use of reasonable force, and perform the functions conferred on an inspector by or under the relevant chemicals statutory provisions.

Where an inspector has reasonable grounds for apprehending any serious obstruction in the performance of his or her functions or otherwise considers it necessary, he or she may be accompanied by a member of the Garda Síochána or any other person authorised by a national authority, when performing any functions conferred on him or her by or under the relevant chemicals statutory provisions.

A statement or admission made by a person pursuant to a requirement  shall not be admissible in proceedings brought against that person for an offence (other than the offence of failure to respond).

Where an inspector, upon reasonable grounds, believes that a person has committed an offence under the relevant chemicals statutory provisions 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.

Directions for Improvement Plan

Where an inspector is of the opinion that there is occurring or likely to occur any activity that involves or is likely to involve a risk to human health or the environment, he or she may give a direction to a person whom the inspector considers to be in control of the activity to which a duty under the relevant chemicals statutory provisions applies requiring submission to him or her of an improvement plan.

A direction given shall—

• identify the activity which is or is likely to be a risk,
• require the submission to the inspector, not later than one month after the giving of the directions, of a plan specifying the remedial action proposed to be taken,
• require the person in control of the activity to implement the plan, and
• include any other requirements that the inspector considers necessary.

An inspector shall, not later than one month after receiving a plan or a revised improvement plan submitted confirm by notice to the person who submitted the plan whether or not the inspector is satisfied that the plan is adequate.

If an inspector is not satisfied that a plan is adequate he or she shall, not later than one month after receiving the plan, require, by direction in writing, the person who prepared the plan to—

• revise the plan in such manner as is specified in the direction, and
• resubmit the plan as so revised to the inspector not later than the date of the expiration of such period as is specified in the direction.

Where an inspector confirms by notice that he or she is satisfied that a plan is adequate the person concerned shall implement the plan forthwith. A person to whom a direction  shall comply with the direction. A direction or notice under this section shall be signed and dated by the inspector.

Contravention Notice.

An inspector who is of the opinion that a person—

• is contravening or has contravened any of the provisions of the relevant chemicals statutory provisions, or
• has failed to comply with a direction
• has submitted a plan in relation to which an inspector has confirmed by notice that he or she is not satisfied that the plan is adequate, or
• has failed to implement the plan,

may serve a notice (in the Chemicals Acts referred to as a “contravention notice”) on the person who has or may reasonably be presumed to have control of the activity concerned.

A contravention notice shall—

• state that the inspector is of the opinion above
• state the reason for that opinion,
• identify the relevant chemicals statutory provision in respect of which that opinion is held,
• direct the person to remedy the contravention or the matters occasioning that notice, or remove a chemical from the market by a date specified in the notice that shall not be earlier than the end of the period within which an appeal may be made,
• include information regarding the making of an appeal
• include any other requirement that the inspector considers appropriate, and
• be signed and dated by the inspector.

A contravention notice may include directions—

• as to the measures to be taken to remedy any contravention or matter to which the notice relates, or to otherwise comply with the notice, and
• to bring the notice to the attention of any person who may be affected by it, or to the public generally.

person on whom a contravention notice has been served who is of the opinion that the contravention notice has been complied with shall confirm in writing to the inspector that the matters referred to in the notice have been so remedied.

Where a person on whom a contravention notice has been served confirms in writing to the inspector  that the matters referred to in the contravention notice have been remedied, the inspector shall, on being satisfied that the matters have been so remedied, within one month of receipt of such confirmation, give notice to the person concerned of compliance with the contravention notice.

Appeal

A person aggrieved by a contravention notice may, within 14 days beginning on the day on which the notice is served on him or her, appeal against the notice to a judge of the District Court in the district court district in which the notice was served in and, in determining the appeal the judge may, if he or she is satisfied that it is reasonable to do so, confirm, vary or cancel the notice.

A person who appeals shall at the same time notify the relevant national authority of the appeal and the grounds for the appeal and that national authority shall be entitled to appear, be heard and adduce evidence on the hearing of the appeal.

Where an appeal is taken, and the contravention notice is not cancelled, the notice shall take effect on the later of—

• the day next following the day on which the notice is confirmed on appeal or the appeal is withdrawn, or
• the day specified in the notice.

Prohibition Notice

Where an inspector is of the opinion that at any place—

• a person is or is likely to be in control of any activity relating to a chemical that involves or is likely to involve a serious risk to health or the environment, or
• the measures taken by a person for the prevention and mitigation of major accidents are or are likely to be seriously deficient,

the inspector may serve a notice (in the Chemicals Acts referred to as a ‘prohibition notice’) on the person concerned.

A prohibition notice shall—

• state that the inspector is of the opinion referred to
• state the reason for that opinion,
• specify the activity in respect of which that opinion is held,
• where in the opinion of the inspector the activity involves a contravention, or likely contravention of any of the relevant chemicals statutory provisions, specify the provision,
• prohibit the carrying on of the activity concerned until the matters that give rise or are likely
• to give rise to the risk are remedied, andbe signed and dated by the inspector.

A prohibition notice may include directions—

• as to the measures to be taken to remedy any contravention or matter to which the notice relates, or to otherwise comply with the notice, and
• to bring the notice to the attention of any person who may be affected by it, or to the public generally.

A prohibition notice shall take effect—

• when the notice is received by the person on whom it is served, or
• where an appeal is brought against the prohibition notice, on the day immediately following— the day on which the notice is confirmed on appeal or the appeal is withdrawn, or the day specified in the notice,whichever occurs later.

Appeal

The bringing of an appeal against a prohibition notice shall not have the effect of suspending the operation of the notice but the appellant may apply to the court to have the operation of the notice suspended until the appeal is disposed of and, on such application, the court may, if it thinks proper to do so, direct that the operation of the notice be suspended until the appeal is disposed of.

A person on whom a prohibition notice is served may, within 7 days beginning on the day on which the notice is served on him or her, appeal against the notice to a judge of the District Court in the district court district in which the notice was served and in determining the appeal the judge may, if he or she is satisfied that it is reasonable to do so, confirm, vary or cancel the notice.

Where, on the hearing of an appeal , a prohibition notice is confirmed,  the judge by whom the appeal is heard may, on the application of the appellant, suspend the operation of the prohibition notice for such period as in the circumstances of the case the judge considers appropriate.

A person who—

• brings an appeal, or
• applies for the suspension of the operation of a prohibition notice

shall at the same time notify the relevant national authority of the appeal or the application, and the grounds for the appeal or application.

A person on whom a prohibition notice has been served who is of the opinion that the matters referred to in the prohibition notice have been remedied by the date specified in the notice shall confirm in writing to the inspector that those matters have been so remedied.

Where a person on whom a prohibition notice has been served confirms in writing to the inspector  that the matters referred to in the prohibition notice have been remedied, the inspector shall, on being satisfied that the matters have been so remedied, within one month of receipt of such confirmation, give notice to the person concerned of such compliance with the prohibition notice.

An inspector may at any time withdraw a prohibition notice if—

• the inspector is satisfied that the activity to which the notice relates no longer involves a serious risk to health or the environment, or
• the inspector is satisfied that the notice was issued in error or is incorrect in some material respect.

Contravention of prohibition notice — application to High Court.

Where a person contravenes a prohibition notice an inspector may apply ex parte to the High Court for an order prohibiting the continued contravention of the notice. The High Court may, upon an application under this section, order the person on whom the prohibition notice concerned was served to cease doing such acts as the High Court directs.

Investigations and special reports

A national authority may at any time direct any of its staff or any other person to—

• investigate the causes and circumstances surrounding any injury to health or damage to the environment or any other activity to which the relevant chemicals statutory provisions relate, and
• submit a report (in the Chemicals Acts referred to as a “special report”) of the investigation to that national authority.

A person, who is not an inspector, carrying out an investigation  shall, for the purposes of the investigation, have all the powers of an inspector.

In the case of a person directed to carry out an investigation and make a special report (other than a member of the staff of the national authority concerned), that national authority may pay to the person such fees and expenses as the Minister or any relevant Minister may, with the approval of the Minister for Finance, determine.

The national authority may, to the extent that the Minister or any relevant Minister may determine, discharge the costs,  save in some exceptional cases, incurred in the preparation of a special report.

A copy of a special report shall be submitted as soon as practicable after the completion of an investigation to the Minister and to any relevant Minister.The national authority may publish a special report, and, if the Minister, upon consultation with a relevant Minister, directs, it shall publish the special report.

Application to High Court

Where a national authority considers that any activity which involves or is likely to involve a contravention of the relevant chemicals statutory provisions and the risk therefrom to health or to the environment is so serious that that activity should be restricted or immediately prohibited until specified measures have been taken to reduce the risk to a reasonable level, the national authority may apply ex parte to the High Court for an order restricting or prohibiting that activity.

The High Court may, upon an application  make such order as it considers appropriate.

An order  shall have effect notwithstanding the terms of any permission given under any other enactment for the activity to which the application relates.On an application by any person for the revocation or variation of an order  the national authority shall be entitled to be heard.

Prohibition and restriction on the movement of chemicals.

Chemicals that are—

• prohibited from being exported or imported, or
• subject to any restriction on importation or exportation,

under the relevant chemicals statutory provisions shall be deemed to be so prohibited or restricted for the purposes of the Customs Consolidation Act 1876, the Customs Act 1956 and the Customs and Excise (Miscellaneous Provisions) Act 1988.

Dissemination of information in the public interest.

A national authority may, in the interest of the protection of health or the environment, and in consultation, where appropriate, with other national authorities take such measures as it considers appropriate to bring to the attention of the public matters giving rise to any contravention notice or prohibition notice served under the Chemicals.

Publication of names of certain persons.

The Authority shall, each year, compile lists of names and addresses of the following persons and a description of the trade, business or other activity carried on by them:

• persons convicted of an offence under the relevant chemicals statutory provisions;
• persons on whom a prohibition notice is served under section 16;
• persons in respect of whom an order has been made under section 17 or 19.

The Authority shall, each year, cause any list referred to be published in such manner as it considers appropriate.  The Authority may, each year, cause any list referred to  to be published in such manner as it considers appropriate.

Any list referred to shall specify, in respect of each person named in the list, such particulars as the Authority thinks fit of—

• the matters occasioning the conviction, prohibition notice or order, as the case may be, imposed on the person, and
• any fine or penalty imposed upon conviction of an offence.

Protection for persons reporting Breaches of Act

Where a person communicates his or her opinion, whether in writing or otherwise, to a national authority that—

• an offence under the Chemicals Acts has been or is being committed, or
• any provision of the relevant chemicals statutory provisions has not been or is not being complied with,

then, no one shall have a cause of action against that person in respect of that communication, unless he or she acted in bad faith.

Protection of employees from penalisation for reporting breaches of Act.

An employer shall not penalise an employee for having formed an opinion of the kind referred to above and communicated it, whether in writing or otherwise, to a national authority if the employee has acted reasonably and in good faith in forming that opinion and communicating it to the national authority concerned. This does not apply to a communication that is a protected disclosure within the meaning of the Protected Disclosures Act 2014.

In proceedings under the Workplace Relations Act 2015 in relation to a complaint that subsection (1) has been contravened, it shall be presumed, until the contrary is proved, that the employee concerned acted reasonably and in good faith in forming the opinion and making the communication concerned.

If a penalisation of an employee, in contravention constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2007, relief may not be granted to the employee in respect of that penalisation under both acts.

A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention shall do one or more of the following, namely—

declare that the complaint was or, as the case may be, was not well founded,

• require the employer to comply and, for that purpose, require the employer to take a specified course of action, or
• require the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all the circumstances, but not exceeding 104 weeks’ remuneration in respect of the employee’s employment calculated in accordance with regulations under of the Unfair Dismissals Act 1977.]