No. 43/1998:

CARRIAGE OF DANGEROUS GOODS BY ROAD ACT, 1998

ARRANGEMENT OF SECTIONS

Section

1. Interpretation.

2. Application.

3. ADR Contracting Parties.

4. Competent authorities.

5. Fees.

6. Inspectors.

7. Search warrants.

8. Prohibition notice.

9. Arrest without warrant for certain offences where summons may not be satisfactory to ensure appearance.

10. Prohibitions relating to transport equipment and documentation.

11. Safe carriage of dangerous goods by road on consignment.

12. Offence by body corporate.

13. Inquests.

14. Service of notices.

15. Proceedings.

16. Application of Explosives Act, 1875.

17. Regulations.

18. Payment, in lieu of certain prosecutions, to inspector.

19. Laying of orders and regulations before Houses of Oireachtas.

20. Expenses.

21. Short title and commencement.

ACTS REFERRED TO

Number 43 of 1998

CARRIAGE OF DANGEROUS GOODS BY ROAD ACT, 1998

AN ACT TO ENABLE EFFECT TO BE GIVEN TO THE EUROPEAN AGREEMENT CONCERNING THE INTERNATIONAL CARRIAGE OF DANGEROUS GOODS BY ROAD (ADR), AND THE PROTOCOL OF SIGNATURE THERETO DONE AT GENEVA ON 30 SEPTEMBER 1957, AND THE AMENDING PROTOCOL THERETO ADOPTED AT GENEVA ON 28 OCTOBER 1993, AND COUNCIL DIRECTIVE 94/55/EC OF 21 NOVEMBER 1994 ON THE APPROXIMATION OF THE LAWS OF THE MEMBER STATES WITH REGARD TO THE TRANSPORT OF DANGEROUS GOODS BY ROAD, AND COUNCIL DIRECTIVE 95/50/EC OF 6 OCTOBER 1995 ON UNIFORM PROCEDURES FOR CHECKS ON THE TRANSPORT OF DANGEROUS GOODS BY ROAD, AND TO PROVIDE FOR RELATED MATTERS.

[2nd December, 1998]

BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:

1.—(1) In this Act, except where the context otherwise requires—

"ADR" means the European Agreement concerning the international carriage of dangerous goods by road, and the protocol of signature thereto done at Geneva on 30 September 1957, and the amending protocol thereto adopted at Geneva on 28 October 1993;

"the Annexes" means Annexes A and B to the ADR referred to in Annexes A and B to Council Directive No. 94/55/EC of 21 November 1994 ¹ , as amended before or after the commencement of this section;

"carriage of dangerous goods by road" means any road transport operation performed by a vehicle wholly or partly on public roads, including the activity of loading and unloading, covered by the Annexes, but does not include transport wholly performed within the perimeter of an enclosed area not open to the public;

"competent authority" means the Minister, or a person appointed under section 4(1) as a competent authority;

"Contracting Party" means a state that is a party to the ADR;

"dangerous goods" means those substances and articles the carriage by road of which is prohibited, or authorised only in certain circumstances, by the Annexes and includes wastes (being any dangerous goods or solution or mixture of dangerous goods for which no direct use is envisaged but which is or are transported for reprocessing, dumping, elimination by incineration or other methods of disposal);

"the Directives" means Council Directive No. 94/55/EC of 21 November 1994 ² and Council Directive No. 95/50/EC of 6 October 1995 ³ ;

"inspector" means a person appointed under section 6(2) as an inspector;

"the Minister" means the Minister for Enterprise, Trade and Employment;

"premises" includes any building, dwelling, temporary construction or vehicle;

"prescribed" means prescribed by regulations made by the Minister;

"public road" means any street, road or other place within the State to which the public has access whether subject to or free of charge;

"training certificate" means a certificate issued by a competent authority to a person who has passed an examination approved by a competent authority on the carriage of dangerous goods by road;

"transport equipment" includes vehicles, tanks, tank containers, portable tanks, demountable tanks, tank swap bodies, tube trailers, bulk containers, intermediate bulk containers, containers, packaging, packages, receptacles and aerosols and any other item used or intended for use in the carriage of dangerous goods by road;

"vehicle" means any complete or incomplete motor vehicle intended for use on the road having at least four wheels and a maximum design speed exceeding 25 km/h, and its trailers, but does not include—

(a) a vehicle which runs on rails,

(b) agricultural and forestry tractors, or

(c) mobile machinery.

(2) In this Act—

(a) a word or expression used which is also used in the ADR has the same meaning in this Act as in the ADR, unless the contrary intention appears;

(b) a word or expression used which is also used in either or both of the Directives has the same meaning in this Act as it has in the Directive or Directives, unless the contrary intention appears;

(c) a reference to a section is a reference to a section of this Act, unless it is indicated that some other enactment is intended;

(d) a reference to a subsection, paragraph or subparagraph is a reference to the subsection, paragraph or subparagraph of the provision in which the reference occurs, unless it is indicated that reference to some other provision is intended;

(e) a reference to an enactment includes a reference to that enactment as amended or extended by or under any subsequent enactment including this Act.

2.—This Act does not apply to vehicles belonging to or under the control of the Defence Forces or the armed forces of a Contracting Party.

3.—(1) The Minister shall, as soon as practicable after the ADR enters into force for the State, by notice in the Iris Oifigiúil, declare the day on which it so enters into force, and the notice shall be prima facie evidence of the fact so declared.

(2) The Minister may, after consultation with the Minister for Foreign Affairs, by notice in the Iris Oifigiúil, declare that—

(a) any state specified in the notice is a Contracting Party, or

(b) a declaration (the text of which shall be set out in the notice) has been made pursuant to Article 10 or 12 of the ADR to the Secretary-General of the United Nations,

and the notice shall be evidence of the facts declared and, in the case of paragraph (b), the contents of the declaration referred to therein.

(3) The Minister may, after consultation with the Minister for Foreign Affairs, by notice in the Iris Oifigiúil, amend or revoke a notice under subsection (2).

4.—(1) The Minister may, after consultation with any other Minister of the Government whose functional responsibility may be concerned, by order, appoint such persons as the Minister thinks fit to be competent authorities, to perform the functions conferred on competent authorities by or under this Act.

(2) A competent authority shall—

(a) keep such records, and

(b) furnish such information in relation to its functions under this Act to the Minister and to any other Minister whose functional responsibility may be concerned,

as the Minister or that other Minister may require.

(3) The Minister may, after consultation with any Minister whose functional responsibility may be concerned, by order revoke or amend any order made under subsection (1).

5.—(1) The Minister may make regulations in relation to fees to be paid by such class or classes of persons as prescribed, to—

(a) a competent authority, or

(b) any person engaged for the purposes of this Act by a competent authority,

in respect of the performance by the competent authority of any function conferred on it by or under this Act.

(2) A fee payable under this section may be recovered by the person to whom it is payable from the person by whom it is payable as a simple contract debt in any court of competent jurisdiction.

(3) The Public Office Fees Act, 1879, shall not apply in relation to a fee under this section.

6.—(1) Each of the following shall be an appointing authority for the purposes of this section:

(a) the Minister,

(b) the Minister for Justice, Equality and Law Reform,

(c) the National Authority for Occupational Safety and Health, and

(d) the Radiological Protection Institute of Ireland.

(2) An appointing authority may appoint such and so many persons as the authority thinks fit to be inspectors for the purposes of this Act and may revoke any such appointment.

(3) An appointing authority shall issue to every inspector appointed by it under subsection (2) a warrant of appointment and, when exercising a power conferred on an inspector by or under this Act, the inspector shall, on being so requested by a person affected, produce the warrant or a copy of it duly authenticated by the appointing authority, to that person.

(4) An inspector may, for the purposes of ascertaining whether this Act or any regulation made under section 17 is being complied with, do any or all of the following:

(a) carry out a check on any transport equipment for reasons of safety inherent in the carriage of dangerous goods by road,

(b) at any time enter any premises or place if he or she has reasonable grounds for suspecting that it is used for a purpose connected with the carriage of dangerous goods by road, or that transport equipment used for that purpose is at the premises or place, and inspect the premises or place, the transport equipment and any documents or records kept or used on the premises or place or that transport equipment,

(c) where he or she has reasonable grounds for suspecting that at any premises or place an offence under this Act has been or is being committed, use reasonable force where necessary in order to enter the premises or place, provided he or she is so authorised by a warrant of a judge of the District Court under section 7 or, if it appears to the inspector to be a case of emergency and that the delay in obtaining a warrant would be likely to endanger life, then without being so authorised,

(d) when exercising a power under this section, be accompanied by a member of the Garda Síochána if the inspector has reasonable cause to apprehend a serious obstruction in the execution of the inspector's duty,

(e) at any time check transport equipment which is stationary, together with its load, if any, and inspect any documents, goods, records or recording equipment being carried in or on the vehicle or by any member of the crew, which are kept or used for a purpose connected with the carriage of dangerous goods by road,

(f) take samples of goods from any premises, place or transport equipment which the inspector has reasonable grounds for suspecting is being used, has been used or is intended to be used for the carriage of dangerous goods by road,

(g) require any person at the premises, in the place or in the transport equipment to produce to the inspector any document or record (including in the case of information in a non-legible form a copy of an extract from such information in permanent legible form) kept or used for a purpose connected with the carriage of dangerous goods by road which is in the power or control of that person,

(h) inspect, examine and take copies of or extracts from or take away, if necessary, for the purposes of inspection or examination, any document or record (including in the case of information in a non-legible form a copy of an extract from such information in permanent legible form) kept or used in connection with the carriage of dangerous goods by road and require the person by whom such document or record is kept or who produced the document or record to certify a copy thereof as a true copy,

(i) request the production of, examine and take copies of any training certificate,

(j) investigate any accident involving carriage of dangerous goods by road, and

(k) undertake, or arrange for the undertaking, of the examination, testing, processing or dismantling of transport equipment as may be necessary.

(5) For the purpose of exercising his or her powers under subsection (4), an inspector may detain transport equipment, including any dangerous goods contained therein or thereon, during such time as is required for the exercise of those powers.

(6) An inspector shall not, other than with the consent of the occupier, enter such part of a premises used as a private dwelling unless he or she has obtained a warrant from the District Court under section 7 authorising such entry.

(7) Where an inspector in the exercise of his or her powers under this section is prevented from entering any premises an application may be made under section 7 for a warrant authorising such entry.

(8) Where the appointing authority is satisfied that an inspector appointed by it has, in a bona fide manner, exercised a power conferred on the inspector by or under this Act, the appointing authority shall indemnify the inspector against all actions or claims however arising in respect of the exercise by the inspector of that power.

(9) A person who obstructs or interferes with an inspector when the inspector is exercising a power under this section, or who fails or refuses to comply with a request or requirement of an inspector under this section, shall be guilty of an offence.

(10) A person who wilfully gives to an inspector information which he or she knows to be false or misleading in a material respect, or makes any such false or misleading statement reckless as to its truth or otherwise, shall be guilty of an offence.

(11) A person guilty of an offence under subsection (9) or (10) shall be liable on summary conviction to a fine not exceeding £1,500.

7.—If a judge of the District Court is satisfied on the sworn information of an inspector that there are reasonable grounds for suspecting that—

(a) a premises is used for a purpose connected with the carriage of dangerous goods by road,

(b) transport equipment used for that purpose is at the premises,

(c) there is information or material relating to the carriage of dangerous goods by road required by an inspector for examination held in any premises or part of any premises, or

(d) an offence under this Act has been or is being committed therein,

the judge may issue a warrant authorising an inspector, accompanied by other inspectors or members of the Garda Síochána, at any time or times within one month from the date of issue of the warrant, on production if so required of the warrant, to enter that premises, if need be by reasonable force, and exercise all or any of the powers conferred on an inspector under section 6.

8.—(1) Where transport equipment is being used, has been used or is intended to be used by any person, or is under the control of any person in the carriage of dangerous goods by road, in a manner which, in the opinion of an inspector or member of the Garda Síochána, constitutes a danger to safety on a public road, the inspector or member may serve on the person a notice (a "prohibition notice") signed by the inspector or member—

(a) stating that the inspector or member is of that opinion,

(b) specifying the matter which in his or her opinion gives rise or is likely to give rise to the danger,

(c) where in his or her opinion the matter involves or will involve a contravention of this Act or the regulations made under section 17, stating that he or she is of that opinion, specify the provision about which he or she is of that opinion, and giving particulars of the reasons why he or she is of that opinion, and

(d) directing that the transport equipment to which the notice relates shall not be used in the carriage of dangerous goods by road by or under the control of the person, nor by or under the control of any person, unless the matters specified in the notice in pursuance of paragraph (b) and any associated contravention of a provision so specified in pursuance of paragraph (c) has or have been remedied.

(2) A prohibition notice shall take effect immediately it is received by the person on whom it is served.

(3) A prohibition notice shall not apply to the removal of the transport equipment to a place of safety under such conditions as the inspector or member of the Garda Síochána serving the notice may specify in writing.

(4) A person aggrieved by a prohibition notice may, within the period of 7 days beginning on the day on which the notice is served on him or her, appeal to a judge of the District Court, in the district court district in which the notice was served, against the notice and in determining the appeal the Court may—

(a) if satisfied that in the circumstances of the case it is reasonable to do so, confirm the notice, with or without modification; or

(b) revoke the notice.

(5) The bringing of an appeal against a prohibition notice in accordance with subsection (4) shall not have the automatic 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 the Court may, if it thinks proper to do so, direct that the operation of the notice be suspended accordingly.

(6) A person who appeals against a prohibition notice under subsection (4) or who applies for a direction suspending the operation of the notice under subsection (5) shall at the same time notify the inspector or member of the Garda Síochána, as appropriate, who served the notice, of the appeal or the application and the grounds for the appeal or application and the inspector or member shall be entitled to appear, be heard and adduce evidence on the hearing of the appeal or the application.

(7) An inspector or a member of the Garda Síochána may revoke a prohibition notice.

(8) If transport equipment is used in contravention of a prohibition notice, the High Court may, on the application of an inspector or member of the Garda Síochána, by order, prohibit the continuance of such use.

(9) An application to the High Court for an order under subsection (8) shall be by motion and the Court, when considering the matter, may make such interim or interlocutory order (if any) as it considers appropriate and the order by which an application under this subsection is determined may contain such terms and conditions (if any) as to the payment of costs as the Court considers appropriate.

(10) A person who fails to comply with a prohibition notice served on him or her shall be guilty of an offence and shall be liable—

(a) on summary conviction, to a fine not exceeding £1,500, or

(b) on conviction on indictment, to a fine not exceeding £100,000.

9.—(1) Where a member of the Garda Síochána has reasonable grounds—

(a) for believing that an offence resulting from a contravention of this Act or regulations made under section 17 has been or is being committed in connection with the operation on a public road of transport equipment, and

(b) for doubting that an address provided as an address for service by the person whom the member believes to have committed or to be committing the offence is a satisfactory address for service of a summons on the person for the prosecution of the offence,

the member may, without warrant, arrest the person.

(2) For the purposes of subsection (1)(b), an address is a satisfactory address for service if it appears to the member of the Garda Síochána that—

(a) the person will be at the address for a sufficiently long period for it to be possible to serve the person with a summons; or

(b) that some other person specified by the first-mentioned person will accept service of a summons for the first-mentioned person at the address.

10.—(1) A person shall not—

(a) in applying for a certificate granted under regulations made under section 17 or in giving any information required of him or her under this Act, make a statement which he or she knows to be false in a material respect, or make any such false statement reckless as to its truth or otherwise;

(b) forge, alter or use with intent to deceive any—

(i) transport document,

(ii) certificate granted under regulations made under section 17, or

(iii) driver's instructions,

or, with intent to deceive, make or possess any document resembling such a transport document, driver's instructions or certificate; or

(c) without authority interfere with transport equipment being used or intended to be used for the carriage of dangerous goods by road or remove, obliterate or alter any labelling on such equipment which denotes the dangerous nature of the goods being carried or intended to be carried or any safety instructions to be followed in relation thereto.

(2) A person who contravenes paragraph (a) of subsection (1) shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,500.

(3) A person who contravenes paragraph (b) or (c) of subsection (1) shall be guilty of an offence and shall be liable—

(a) on summary conviction, to a fine not exceeding £1,500, or

(b) on conviction on indictment, to a fine not exceeding £100,000.

11.—(1) A person engaged in the carriage of dangerous goods by road shall take all practical steps to prevent risk of injury to person, or damage to property in or resulting from the carriage of those goods.

(2) A person shall not procure the carriage of dangerous goods by road without disclosing their precise nature or that they are dangerous.

(3) A person who contravenes subsection (1) or (2) shall be guilty of an offence and shall be liable—

(a) on summary conviction, to a fine not exceeding £1,500, or

(b) on conviction on indictment, to a fine not exceeding £100,000.

(4) In this section "person engaged in the carriage of dangerous goods by road" includes the operator of the vehicle (whether or not the owner), the driver of the vehicle, and the consignor of the dangerous goods.

12.—(1) Where an offence under this Act which is committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any person who, when the offence was committed, was a director, manager, secretary or other officer of the body or a person who was purporting to act in any such capacity, that person, as well as the body corporate, shall also be guilty of an offence and shall also be liable to be proceeded against and punished as if guilty of the offence committed by the body corporate.

(2) Where the affairs of a body corporate are managed by its members, subsection (1) applies as if the reference to a director in that subsection were a reference to a member of the body corporate.

13.—Any reference in section 56 of the Safety, Health and Welfare at Work Act, 1989 , to—

(a) an enforcing agency shall be construed as including a reference to a competent authority, and

(b) an inspector or any other person appearing on behalf of an enforcing agency shall be construed as including a reference to an inspector appointed under this Act.

14.—(1) Any document required or authorised to be served on or sent or given to any person under this Act (not being a body to which subsection (2) applies) may be served or sent or given to the person—

(a) where it is addressed to the person by name, by delivering it to him or her, or in the case of a partnership by delivery to any of the partners,

(b) by leaving it at the address at which the person ordinarily resides,

(c) by sending it by post in a prepaid registered letter addressed to the person at the address at which the person ordinarily resides, or in a case in which an address for service has been furnished, at that address for service, or

(d) where the address at which the person ordinarily resides cannot be ascertained by reasonable inquiry and notice is required to be served on, or given to, the person in respect of any place of work, by delivering it to a person who has attained the age of 16 years and who is resident in or employed at the place of work, or by affixing it in a conspicuous position on or near the place of work.

(2) Any document required or authorised under this Act to be served on or sent or given to a body, whether corporate or unincorporated, may be served on or sent or given to the body—

(a) by leaving it at, or sending it by post in a prepaid registered letter to, the registered office, if any, of the body,

(b) by leaving it at, or sending it by post in a prepaid registered letter to, any place at which the body conducts business,

(c) by sending it by post in a prepaid registered letter to any person who is a director, manager, secretary or other officer of the body or is purporting to act in any such capacity, at the place where the person ordinarily resides, or by leaving it at that place, or

(d) by delivering it to a person who has attained the age of 16 years and who is resident in or employed at the registered office, if any, of the body or place at which the body conducts business.

15.—(1) Proceedings for an offence under this Act may be brought and prosecuted summarily by—

(a) the Minister,

(b) the Minister for Justice, Equality and Law Reform,

(c) the National Authority for Occupational Safety and Health,

(d) the Radiological Protection Institute of Ireland, or

(e) a member of the Garda Síochána.

(2) Any entry purporting to indicate a load being carried and made in a transport document relating to transport equipment or a label, plate or marking affixed to transport equipment, shall, for the purposes of any proceedings under this Act, be evidence of the load being carried by or in the transport equipment at the relevant time.

(3) In any proceedings under this Act, prima facie evidence of the terms of the ADR may be given by the production of a document purporting to be a copy thereof and purporting to have been published by the United Nations or by a publisher authorised by the United Nations to publish such United Nations publications.

16.—(1) Section 75 of the Explosives Act, 1875, shall not apply in relation to the carriage of explosives by road.

(2) The Minister may by order revoke any bye-law made under section 37 of the Explosives Act, 1875, in so far as it relates to the carriage of explosives by road.

(3) Any bye-law made under section 37 of the Explosives Act, 1875, after the commencement of this section shall not apply to the carriage of explosives by road.

17.—(1) For the purposes of giving effect to the ADR or either of the Directives, the Minister may, subject to this Act and after consultation with any other Minister of the Government whose functional responsibility may be concerned, make regulations in relation to—

(a) the carriage of dangerous goods by road within the State or into the State from, or from the State into, the territory of another Contracting Party,

(b) the type approval, examination, testing, certification, marking and labelling of transport equipment to be used in carriage of dangerous goods by road,

(c) the approval of training courses for drivers of vehicles carrying dangerous goods by road, the examination of such drivers who have undertaken approved training and the granting of training certificates to those drivers who have passed an approved examination after such training,

(d) the recognition of tests, certificates or approvals undertaken or granted by a competent authority of another Contracting Party,

(e) the revocation of any approval or certificate issued by a competent authority,

(f) equipment to be provided on vehicles carrying dangerous goods by road,

(g) transport documents to be carried on vehicles carrying dangerous goods by road,

(h) the notification of accidents or dangerous occurrences arising from the carriage of dangerous goods by road,

(i) the supervision and monitoring of competent authorities, in respect of any functions conferred on them by or under this Act.

(2) Regulations made under this section may contain such consequential, supplementary and ancillary provisions as the Minister considers necessary.

(3) Regulations made under this section may amend or revoke instruments made under the Dangerous Substances Acts, 1972 and 1979, the Explosives Act, 1875, the Safety, Health and Welfare at Work Act, 1989 , or the European Communities Act, 1972 , in so far as such instruments relate to the carriage of dangerous goods by road.

(4) Regulations made under this section may provide for offences consisting of contraventions of or failures to comply with regulations and for the imposition on summary conviction of such offences of fines not exceeding specified amounts not exceeding £1,500.

18.—(1) This section applies to such offences under regulations made under section 17 as may be prescribed to be offences to which this section applies.

(2) Where an inspector has reasonable grounds for believing that a person is committing or has committed an offence to which this section applies he or she may serve the person with a notice, in such form as may be prescribed, stating that—

(a) the person is alleged to have committed the offence,

(b) the person may without delay make to the inspector a payment of £150, and

(c) if the payment specified in the notice is made without delay, no prosecution in respect of the alleged offence will be instituted.

(3) Where an inspector serves a notice upon a person under this section and receives payment from the person of the amount specified in the notice, the inspector shall issue a receipt of such payment to the person and retain the money so paid for disposal in such manner as may be prescribed, and any payment so received shall not be recoverable in any circumstances by the person who made it.

(4) In a prosecution for an offence under this Act the onus of proving that a payment pursuant to a notice under this section has been made shall lie on the defendant.

(5) The Minister may by regulations vary the amount standing specified for the time being in subsection (2)(b).

(6) A payment pursuant to a notice under this section may be made—

(a) in the currency of the State,

(b) in a corresponding amount in—

(i) the currency of another Member State of the European Union, or

(ii) such other currency as may be prescribed,

or

(c) by negotiable instrument acceptable to the inspector.

19.—Every order and regulation under this Act shall be laid before each House of the Oireachtas as soon as practicable after it is made and, if a resolution annulling any such order (other than an order under section 21) or regulation is passed by either such House within the next subsequent 21 days on which that House has sat after the order or regulation is laid before it, the order or regulation shall be annulled accordingly but without prejudice to the validity of anything previously done thereunder.

20.—The expenses incurred by the Minister, or any other Minister of the Government, in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Finance, be paid out of moneys provided by the Oireachtas.

21.—(1) This Act may be cited as the Carriage of Dangerous Goods by Road Act, 1998 .

(2) This Act shall come into operation on such day or days as may be fixed therefor by order or orders of the Minister either generally or with reference to any particular purpose or provision, and different days may be so fixed for different purposes or different provisions of this Act.

O.J. No. L 319 of 12.12.1994 p.7

O.J. No. L 319 of 12.12.1994 p.7

O.J. No. L 249 of 17.10.1995 p.35