The Controls on Dangerous Substances and Preparations Regulations 2006

PART 1 Introduction and restriction

Citation and commencement

1.  These Regulations may be cited as the Controls on Dangerous Substances and Preparations Regulations 2006 and come into force on 7th January 2007.

Interpretation

2.—(1) In these Regulations—

“authorised person” means a person authorised under regulation 9(2) and includes any person authorised under paragraph 11 of Schedule 3;

“CAS Number” means a number assigned by the Chemicals Abstracts Service and given in the CAS Registry Handbook(1);

“the Dangerous Substances Directive” means Council Directive 76/769/EEC on the approximation of the laws, regulations and administrative provisions of the Member States relating to restrictions on the marketing and use of certain dangerous substances and preparations(2), as amended at the date that these Regulations are made(3);

“EINECS Number” means the number given in the European Inventory of Existing Commercial Chemical Substances(4);

“the enforcing authority” means in respect of—

(a)

England and Wales, the Environment Agency;

(b)

Scotland, the Scottish Environment Protection Agency;

(c)

Northern Ireland, the Department of the Environment.

“preparations” means mixtures or solutions composed of two or more substances;

“substances” means chemical elements and their compounds as they occur in the natural state or as produced by industry.

(2) Other expressions used in these Regulations which are used in the Dangerous Substances Directive have the meaning they bear in that Directive.

Restriction on the placing on the market or use of dangerous substances and preparations

3.—(1) No person shall place on the market or use any of the dangerous substances and preparations listed in Schedule 1 except in accordance with the restrictions set out in column 4 of that Schedule.

(2) Paragraph (1) is subject to regulations 4 to 7.

PART 2 Matters outside the scope of, and exceptions to, the restriction in regulation 3

Matters outside the scope of the restriction in regulation 3

4.  Regulation 3(1) does not apply to—

(a) the carriage of dangerous substances and preparations by rail, road, inland waterway, sea or air;

(b) dangerous substances and preparations exported to a country which is not a Member State of the European Community, or to Norway, Iceland or Liechtenstein;

(c) substances and preparations in transit and subject to customs inspection, provided that they undergo no processing;

(d) marketing or use for research and development or analysis purposes.

Leaded paint

5.—(1) A person may market leaded paint if it is marketed with a view to its use as set out in paragraph (2).

(2) Subject to paragraph (3), a person may use leaded paint if the paint is used in the restoration or maintenance of—

(a) historic buildings or their interiors;

(b) scheduled monuments; or

(c) fine or decorative works of art,

where it is required to restore or maintain historic textures or finishes.

(3) A person who intends to use leaded paint shall—

(a) where he intends to obtain the paint from a person who supplies such paint, provide to that person a relevant declaration; or

(b) in any other case, provide to the competent body a relevant declaration and comply with paragraph (6).

(4) A person may supply leaded paint if he complies with paragraph (5).

(5) A person who receives a relevant declaration pursuant to paragraph (3)(a) and agrees to supply leaded paint to the intended user stated in the declaration—

(a) shall send the declaration to the competent body with a notification; and

(b) shall not supply the paint—

(i) earlier than 3 weeks after providing the relevant declaration and notification to the competent body; or

(ii) if he receives a notice under paragraph (7)(a) from the competent body.

(6) A person who provides a relevant declaration under paragraph (3)(b) shall not use the paint—

(a) earlier than 3 weeks after providing the relevant declaration to the competent body; or

(b) if he receives a notice under paragraph (7)(a) from the competent body.

(7) If a competent body is not satisfied with the content of a relevant declaration or notification, it shall—

(a) within 2 weeks of receipt, give notice to that effect in writing to the person from whom it was received with reasons for its decision; and

(b) as soon as possible, provide a copy of that notice to the enforcing authority.

(8) For the purposes of this regulation—

“competent body” means—

(a)

English Heritage if the historic building, scheduled monument or work of art is in England;

(b)

Cadw if the historic building, scheduled monument or work of art is in Wales;

(c)

the Scottish Ministers if the historic building, scheduled monument or work of art is in Scotland;

(d)

the Department of the Environment if the historic building, scheduled monument or work of art is in Northern Ireland;

“historic building” means—

(a)

in relation to England and Wales, a listed building within the meaning of section 1(5) of the Planning (Listed Buildings and Conservation Areas) Act 1990(5) which is classified as Grade I or Grade II (starred);

(b)

in relation to Scotland, a listed building within the meaning of section 1(4) of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997(6) which is classified as category A;

(c)

in relation to Northern Ireland, a listed building within the meaning of article 42(7) of the Planning (Northern Ireland) Order 1991(7);

“leaded paint” means paint containing lead carbons or lead sulphates listed in column 2 of Schedule 1 against point numbers 17 and 18;

“notification” means a written notification that contains the matters in Part 2 of Schedule 2;

“relevant declaration” means a written declaration that contains the matters in Part 1 of Schedule 2;

“scheduled monument” has the same meaning—

(a)

in England, Wales and Scotland, as it has in section 1(11) of the Ancient Monuments and Archaeological Areas Act 1979(8);

(b)

in Northern Ireland, as it has in article 3(2) of the Historic Monuments and Archaeological Objects (Northern Ireland) Order 1995(9).

PCP

6.—(1) PCP may be—

(a) placed on the market if the provisions of paragraph (2) or (3) are satisfied; and

(b) used if the provisions of paragraph (4) or (5) are satisfied.

(2) The placing on the market of PCP intended for use alone or as a component of preparations is permitted if it is approved—

(a) under regulation 5(1) of the Control of Pesticides Regulations 1986(10); or

(b) under regulation 5(1) of the Control of Pesticides Regulations (Northern Ireland) 1987(11),

and takes place in accordance with such approval.

(3) Until 31st December 2008, any substance that contains PCP may be placed on the market if it has a total H₆CDD content below 2 parts per million and that substance—

(a) is intended solely for the uses permitted under paragraph (4) or (5);

(b) is placed on the market in packages of 20 litres or more marked clearly and indelibly with the words, “Reserved for industrial and professional use”;

(c) is not sold to the general public; and

(d) is not waste to which either of which the following Directives (as amended on the date these Regulations are made) apply—

(i) Directive 2006/12/EC of the European Parliament and of the Council(12);

(ii) Council Directive 91/689/EEC(13).

(4) The use of PCP alone or as a component of preparations is permitted if that use is approved—

(a) under regulation 5(1) of the Control of Pesticides Regulations 1986; or

(b) under regulation 5(1) of the Control of Pesticides Regulations (Northern Ireland) 1987,

and takes place in accordance with such approval.

(5) Until 31st December 2008, any substance or preparation that contains PCP may be used in industrial installations—

(a) in the treatment of wood except that any wood so treated may not be used—

(i) inside buildings, whether for decorative purposes or not, and whatever the purpose of the building; or

(ii) for the manufacture and re-treatment of—

(aa) containers intended for growing purposes;

(bb) packaging that may come into contact with raw materials, intermediate or finished products destined for human and/or animal consumption; or

(cc) other materials that may contaminate the products referred to in sub-paragraphs (aa) and (bb);

or

(b) for the impregnation of fibres or heavy duty textiles if such material—

(i) is not intended for clothing or for decorative furnishings; and

(ii) has a total H₆CDD content below 2 parts per million.

(6) For the purposes of this regulation—

“H₆CDD” means all the isomers of hexachlorodibenzoparadioxin;

“PCP” means pentachlorophenol and its salts and esters.

Nonylphenol and nonylphenol ethoxylate

7.—(1) Nonylphenol and nonylphenol ethoxylate may be placed on the market or used as part of a pesticide or biocide product if, and to the extent which, the placing on the market or use of the pesticide or biocide is authorised by a relevant approval.

(2) In this regulation—

“nonylphenol” means nonylphenol C₆ H₄ (OH)C₉ H_19;

“nonylphenol ethoxylate” means nonylphenol ethoxylate (C₂ H₄ O)_n C₁₅ H₂₄ O;

“relevant approval” means an approval granted before 17th July 2003 which is valid under—

(a)

the Control of Pesticides Regulations 1986;

(b)

the Control of Pesticides Regulations (Northern Ireland) 1987;

(c)

the Plant Protection Products Regulations 2005(14); or

(d)

the Plant Protection Products Regulations (Northern Ireland) 2005(15).

PART 3 Enforcement, powers and civil proceedings

Enforcement

8.  For the purposes of the control of pollution, the enforcing authority shall enforce the restriction in regulation 3.

Powers of the enforcing authority and authorisation

9.—(1) The enforcing authority and persons authorised for the purposes of paragraph (2) shall have the powers set out in Schedule 3.

(2) The enforcing authority may authorise in writing such persons who appear suitable to act on its behalf, subject to any limitations or conditions as the enforcing authority sees fit.

(3) An authorisation under—

(a) section 108 of the Environment Act 1995(16)(powers of enforcing authorities and persons authorised by them); or

(b) article 72 of the Waste and Contaminated Land (Northern Ireland) Order 1997(17)(powers of enforcing authorities and persons authorised by them),

is an authorisation for the purposes of paragraph (2).

Proceedings before a civil court

10.  If the enforcing authority is of the opinion that proceedings against a person for an offence under Part 4 would afford an ineffectual remedy against that person, the enforcing authority may take civil proceedings against that person for the purpose of seeking such remedy as the enforcing authority believes is appropriate in the circumstances.

.

PART 4 Offences and penalties

CHAPTER 1 Regulations 3 and 5

Offences

11.  It is an offence for a person—

(a) to contravene the restriction in regulation 3; or

(b) to contravene paragraphs (5)(b) or (6) of regulation 5,

or cause or permit another person to do so.

Penalties

12.  Any person guilty of an offence under regulation 11 shall be liable—

(a) on summary conviction, to a fine which shall not exceed the statutory maximum or to imprisonment not exceeding three months, or both;

(b) on conviction on indictment, to a fine or to imprisonment not exceeding two years, or both.

CHAPTER 2 Regulation 9 and Schedule 3

Offences

13.—(1) It is an offence for a person—

(a) intentionally to obstruct an authorised person in the exercise or performance of his powers or duties; or

(b) to make a statement which he knows to be false or misleading in a material particular, or recklessly makes a statement which is false or misleading in a material particular, where the statement is made in purported compliance with a requirement to furnish any information imposed by or under these Regulations.

(2) It is an offence for a person, without reasonable excuse—

(a) to fail to comply with—

(i) any requirement under the powers in Part 1 or 2 of Schedule 3;

(ii) any notice made under Part 4 of Schedule 3;

(b) to fail or refuse to provide facilities or assistance or to permit any inspection reasonably required by an authorised person under or by virtue of those powers; or

(c) to prevent any other person from appearing before an authorised person, or answering any question to which an authorised person may require an answer, pursuant to the powers in Part 1 or 2 of Schedule 3.

(3) It is an offence for a person falsely to pretend to be an authorised person.

(4) In this regulation, “powers or duties” includes powers or duties exercisable by virtue of a warrant under paragraph 11 of Schedule 3.

Penalties

14.—(1) A person guilty of an offence under regulation 13 shall be liable—

(a) in the case of an offence of obstructing an authorised person in the execution of his powers under Part 3 (seizure in cases of imminent danger of serious pollution) of Schedule 3—

(i) on summary conviction, to a fine not exceeding the statutory maximum;

(ii) on conviction on indictment, to a fine or to imprisonment for a term not exceeding two years, or to both;

and

(b) in any other case, on summary conviction, to a fine not exceeding level 5 on the standard scale.

(2) A person guilty of an offence under regulation 13(2) or (3) shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.

CHAPTER 3 Bodies corporate, Scottish partnerships and remediation

Bodies corporate and Scottish partnerships

15.—(1) Where an offence under this Part committed by a body corporate is shown—

(a) to have been committed with the consent or connivance of an officer, or

(b) to be attributable to any neglect on his part,

the officer as well as the body corporate is guilty of the offence and is liable to be proceeded against and punished accordingly.

(2) “Officer”, in relation to a body corporate, means a director, manager, secretary or other similar officer of the body, or a person purporting to act in any such capacity.

(3) If the affairs of a body corporate are managed by its members, paragraph (1) applies in relation to the acts or defaults of a member in connection with his functions of management as if he were a director of the body corporate.

(4) Where an offence under this Part committed by a Scottish partnership is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, a partner, he, as well as the partnership shall be deemed to be guilty of that offence and liable to be proceeded against and punished accordingly.

(5) In paragraph (4) “partner” includes a person purporting to act as a partner.

Power of court to order cause of offence to be remedied

16.—(1) Where a person is convicted of an offence under this Part in respect of any matters which appear to the court to be matters which it is in his power to remedy, the court may, in addition to or instead of imposing any punishment, order him, within such time as may be fixed by the order, to take such steps as may be specified in the order for remedying those matters.

(2) The time fixed by an order under paragraph (1) may be extended or further extended by order of the court on an application made before the end of the time as originally fixed or extended under this paragraph, as the case may be.

(3) Where a person is ordered under paragraph (1) to remedy any matters, that person shall not be liable under regulation 12 or 14 in respect of those matters in so far as they continue during the time fixed by the order or any further time allowed under paragraph (2).

PART 5 Appeals against enforcement and prohibition notices

Appeals against enforcement and prohibition notices

17.—(1) A person on whom an enforcement notice or prohibition notice is served under Part 4 (notices) of Schedule 3 may appeal against that notice to the appeal body.

(2) The appeal body means, where the notice is served by—

(a) the Environment Agency, the Secretary of State;

(b) the Scottish Environment Protection Agency, the Scottish Ministers;

(c) the Department of the Environment, the Planning Appeals Commission.

(3) An appeal shall be received by the appeal body no later than two months from the date of the notice.

(4) The appeal body may allow an appeal received after the date referred to in paragraph (3).

(5) Where an appeal is brought, this shall not have the effect of suspending the operation of the notice.

(6) On the determination of an appeal, the appeal body may either quash or affirm the notice and, if it affirms it, may do so either in its original form or with such modifications as the appeal body sees fit.

(7) In relation to the making and determination of appeals under this regulation, the appeal body may adopt such procedures as it sees fit.

PART 6 Revocations and savings

Revocations and savings

18.—(1) The instruments listed in Schedule 4 are revoked.

(2) The following Regulations shall continue to have effect in relation to any completed declaration referred to in those Regulations which is made before these Regulations come into force—

(a) the Environmental Protection (Controls on Injurious Substances) Regulations 1992(18);

(b) the Marketing and Use of Dangerous Substances (No.2) Regulations (Northern Ireland) 1994(19).

Jeff Rooker

Minister of State

Department for Environment, Food and Rural Affairs

11th December 2006