Ozone Depleting Substances Act 1998

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1. Short title
2. Commencement
3. Application of Act
4. Act to bind Government
5. Interpretation
6. Non-derogation
7. Contracting out

8. Establishment of Ozone Depleting Substance Unit
9. Functions of Director
10. Duties of Director
11. Powers of Director
12. Ozone Layer Protection Fund
13. National Policy for the Protection of the Ozone Layer

15. Recovery of controlled substances
16. Importation, storage and processing
17. Licensing of persons to handle controlled substances
18. Other duties and responsibilities

19. Limitation period
20. Other offences
21. Continuing offence
22. Additional penalties

23. Employee protection
24. Liability of directors, etc.
25. Regulations
Schedule - List of Controlled Substances

TO REGULATE THE IMPORTATION, EXPORTATION, SALE, STORAGE AND USE OF OZONE DEPLETING SUBSTANCES AND TO GIVE EFFECT TO FIJI'S OBLIGATIONS UNDER THE VIENNA CONVENTION FOR THE PROTECTION OF THE OZONE LAYER AND THE MONTREAL PROTOCOL ON SUBSTANCES THAT DEPLETE THE OZONE LAYER, AND FOR RELATED MATTERS

2.-(1) This Act shall come into force on the day or days appointed by the Minister and published in the Gazette.

(2) The Minister may appoint different dates for the coming into force of the provisions of this Act.

(b) any person in Fiji irrespective of the person's nationality or citizenship.

4. This Act shall bind the Government, including Government departments and statutory authorities.

"controlled substance" means any ozone depleting substance listed in the Schedule;

"controlled substance in bulk" means any controlled substance in a non processed form whether alone or in a mixture, but does not include any such substance-

(a) that is in a manufactured product other than a container used for the transportation or storage of the substance; or

(b) that is in a manufactured product that is used solely for human health or safety;

(d) the interacting natural systems that include components referred to in paragraphs (a) to (c);

"facility" means any facility or operation engaged in manufacturing, processing, transportation, storage and packaging, mining, quarrying, sand extraction, coral mining, tourism, commerce, the preparation or processing of any agricultural produce or food, or any other activity undertaken for financial gain, and includes any activity that may be conducted at or in residential premises;

"National Policy" means the National Policy for the Protection of the Ozone Layer formulated under section 13;

6. This Act is in addition to and does not derogate from the provisions of any other Act.

7.-(1) This Act applies notwithstanding anything to the contrary contained in any contract or agreement entered into or after the commencement of this Act.

(2) A contractor agreement which purports to exclude or limit the application of this Actor exclude or limit the rights or entitlements of a person under this Act is, to that extent, void.

(3) A person who urges, prevails upon, persuades or offers an inducement to another person to enter into a contract or agreement whereby that other person would, but for this section, consent or agree to the application of this Act being excluded or limited in respect of that other person, or to waive or limit that other person's rights, benefits or entitlements under this Act, commits an offence and is liable on conviction to the penalties provided in Part V.

8.-(1) The Minister must establish, within the Department responsible for the environment, the Ozone Depleting Substances Unit to assist the Director in the performance of his functions.

(2) The Unit is to consist of staff or personnel necessary to carry out the functions, duties and powers of the Unit.

(a) to formulate and implement the Government's strategy and action plan with regard to the phasing out of any controlled substance;

(b) to survey, assess and analyse the situation with regard to consumption and use of any controlled substance;

(a) establish a regular monitoring and audit process for data collection concerning the use of controlled substances, and monitor compliance with the phase-out date specified in the National Policy;

(b) accredit services that may be permitted to recover, recycle or handle any controlled substance;

(c) promote public and industry awareness and training programmes concerning the management of any controlled substance; and

(d) implement and review Fiji's programme and action plan formulated under the Vienna Convention for the Protection of the Ozone Layer and the Montreal Protocol on Substances that Deplete the Ozone Layer.

(a) appoint inspectors or environmental auditors to verify compliance with the requirements of this Part;

(b) establish codes of practice, standards, guidelines or operational procedures to manage the use of any controlled substance;

(c) administer the licence or permit requirements or conditions under the provisions of this Act;

12.-(1) This section establishes the Ozone Layer Protection Fund which will consist of-

(a) all money appropriated by Parliament for the purposes of the Fund or required to be paid into the Fund by or under any other Act;

(c) all money paid from any source outside Government for the purposes of this Act,

and which will be dealt with as a special account under section 58 of the Finance Act.

(a) programmes for the establishment or management of any strategy or action plan required for the protection of the ozone layer; and

(b) the administration of programmes to be established to give effect to the Vienna Convention for the protection of the Ozone Layer and Montreal Protocol on substances not deplete the Ozone layer.

(3) The money standing to the credit of the Fund may, subject to the Finance Act, be applied by the Minister to programmes or purposes as defined under subsection (2), in accordance with the National Policy.

13.-(1) The Minister must formulate a National Policy for the Protection of the Ozone Layer and ensure that the formulation of the National Policy is undertaken through the broadest possible consultation and participation.

(2) The National Policy must take into account the ecological, economic, social and cultural realities and contain-

(b) an evaluation of options concerning the phasing-out of any controlled substance;

(c) an estimation of incremental costs for the phase-out of any controlled substance;

(d) the target year for phasing out of the consumption of any controlled substance;

(e) a strategy containing mechanisms, programmes and initiatives that are to be implemented to give effect to the National Policy which shall provide for the following-

(iii) the establishment of a training programme on the recycling and reduction of any controlled substance; and

(f) a review of the social, environmental, human health and economic impacts of the National Policy and implementation programme; mechanisms that are to be employed to manage or mitigate any undesirable social, environmental or economic impacts of the implementation programme;

(h)mechanisms that are to be employed to monitor and manage the implementation of the National Policy and implementation programme, and to ensure its periodic review; and

14.-(1) No person shall import, export, store, dispose of, or manufacture any controlled substance in bulk listed in Part I of the Schedule with effect from 1^st January 2000.

(2) No person shall import, export, store, dispose of, or manufacture any controlled substance in bulk listed in Part II of the Schedule with effect from 1^st January 2031.

(3) No person shall import, export, sell or install halons or halon fire extinguishers with effect from 1^stJuly, 1998.

(4) No person shall refill halon fire extinguishers in non-essential applications with effect from 1^st July, 1998.

(5) Notwithstanding subsection (4), no person shall refill halon fire extinguishers in any circumstances with effect from 1^st January, 1999.

(a) import or export any motor-vehicle that incorporates automotive air-conditioners which contain any controlled substance listed in Part I of the Schedule; or

(b) import, export or sell any automotive air-conditioner which contains any controlled substance listed in Part I of the Schedule.

(7) No person shall export or export any air-conditioner, air conditioner unit, refrigerator or refrigeration unit, including any compressor, that contains or uses any controlled substance listed in Part I of the Schedule with effect from 1^st July 1998.

(8) A person who contravenes a provision of this section commits an offence and is liable on conviction to the penalties provided in Part V.

15.-(1) This section shall come into force no later than 12 months after the commencement of this Act, on a date to be appointed under section 2(2).

(2) A person shall not recover, recycle or refill halon unless licensed under section 18.

(a) undertake the recovery, recycling or refilling by means of equipment approved by the Director; and

(b) deposit the halon at the Central Storage Facility established by the Director under section 11(d) or other facility approved by the Director.

(4) A licensee who owns or is in control of a refrigeration and air-conditioning service workshop registers^, under section 16, including a motor garage that undertake refilling of automobile air-conditioners, shall use a recovery and recycling unit approve by the Director.

16.-(1) This section hall come into force within 12 months after the commencement of this Act, on a date to be appointed under section 2(2).

(2) No person shall sell, store, process or purchase for resale any controlled substance in any premises or facility unless a permit is issued for the use of the premises or facility.

(3) No person may import any controlled substance or any apparatus or equipment which contains a controlled substance, without a permit issued by the Director.

(4) A person who intends to use any premises or facility for the sale, storage, processing or purchasing for resale any controlled substance may apply for a permit to the Director in the prescribed form.

(5) The Director, in accordance with regulations made under section 25(1), may issue permits required under this section, and may, with the approval of the Minister, establish-

(a) standards pertaining to the storage or processing of any controlled substances on any premises;

(b) requirements for the training of employees in the management and handling of any controlled substance.

(6) Upon receipt of any application under subsection (4), the Director must cause the premises or facilities to be inspected to determine if-

(a) there is adequate provision for the safe storage or processing of controlled substances; and

(b) employee training in the management of controlled substances has been undertaken by the person making the application.

(7) Upon completion of an inspection undertaken under subsection (6), the Director may-

(8) A person who is aggrieved with the decision of the Director may, in writing, appeal to the Minister within 21 days from the date of the decision.

(10) The Director may, cancel a permit if the Director is satisfied that the premises or facility have failed to comply with any requirement under this Act, or any conditions of a permit.

(11) If any requirement or condition contained in a permit is not complied with, the Director may issue directions necessary for the immediate cessation of the sale, storage or processing of any controlled substance.

(12) A person who sells, stores or processes any controlled substance shall keep and maintain records that provide a full and accurate description of the controlled substances that are sold, stored or processed at the premises, and shall submit a report to the Director at least once every year.

(13) A person who owns or is in control of a business activity used for the sale, storage or processing of any controlled substance shall ensure-

(a) that all the controlled substances on the premises or facility are managed in accordance with the requirements of this Part, and any directions or guidelines issued by the Director;

(b) that the controlled substance storage areas or against unauthorised access;

(c) that a daily inspection of the controlled substance storage areas is carried out by a senior authorised person to ensure no leakage of any controlled substance is occurring.

(a) inspect any premises or facility to ensure compliance with any permit issued under this Part or any standard and procedures established under this Part;

(b) require annual audits by a qualified environmental auditor of any premises or facility in respect of which a permit has been issued under this section; and

(c) carry out spot checks to ensure compliance with any requirement under this Part.

(15) A person who contravenes a provision of this section commits an offence and is liable on conviction to the penalties provided in Part V.

17.-(1) This section shall come into force no later than 12 months after the commencement of this Act, on a date to be appointed under section 2(2).

(2) A person shall not undertake the recycling, recharging, or capturing of any controlled substance unless licensed.

(3) A person who wishes to be licensed under this Act may apply to the Director in the prescribed form.

(4) The Director shall, with the approval of the Minister, establish procedures and requirements for the licensing and training of persons required to be licensed under this Act.

(5) The Minister may, by regulation prescribe the procedure, form and fees for applying for a licence required by subsection (2), for the form, duration and renewal of a licence, and the conditions to be attached to any licence, including the undergoing of training in the handling of controlled substances.

(6) A person who contravenes a provision of this section, or any condition of a licence issued under it, commits an offence and is liable on conviction to the penalties provided in Part V.

18.-(1) A person who owns or is in control of any disposable apparatus or equipment that contains any controlled substance shall, where possible, ensure that the controlled substance is recovered prior to disposal of the apparatus or equipment.

(2) A person who, without reasonable cause, contravenes subsection (1), commits an offence and is liable on conviction to the penalties provided in Part V.

(3) A person who owns or is in control of any apparatus or equipment that contains any controlled substance shall ensure that when the apparatus or equipment is serviced or repaired, the controlled substance, where practicable, is replaced with a suitable substitute that is not a controlled substance.

(4) A person who discharges or releases, or causes or permits the discharge or release of any controlled substance into the environment, commits an offence and is liable on conviction to the penalties provided in Part V.

(5) A person who is responsible for or becomes aware of the discharge or release of a controlled substance shall immediately report the circumstances of the discharge or release to the Director.

(6) A report required to be made under subsection (5) shall contain the following information-

(c) the description and quantity of the controlled substance that was discharged or released;

(d) the measures that have been taken to stop or reduce the discharge or release.

(b) knowingly makes a report under subsection (5) containing any information that is false or misleading;

commits an offence and is liable on conviction to the penalties provided in Part V.

(8) Where a person is charged with an offence under subsection (4), it is a defence to prove, on the balance of probabilities, that-

(a) the discharge or release, as the case may be, occurred without the negligence or deliberate act of that person; and

(b) as soon as possible in the circumstances after the discharge or release occurred, all reasonable steps were taken to prevent, or if it could not be prevented, to stop or reduce the discharge or release of the controlled substance.

(9) It is a defence for a person charged with an offence under subsection (4) in the case of a discharge or release from premises of which the person is the occupier, to prove, on the balance of probabilities, that-

(a) the discharge or release was caused by the act or omission of another person who was in that place without the permission (express or implied) of the occupier; and

(b) the person had taken all reasonable steps to prevent that other person who actually caused the discharge or release from obtaining access to the premises.

19.-(1) Subject to subsection (2), no prosecution for an offence under this Act is to be commenced after 12 months from the date of the commission of the offence.

(2) The Director may apply to the court for leave to commence prosecution after 12 months if evidence of the offence first came to the attention of the Director after that period.

(a) is required to provide information under this Act but provides false or misleading information;

(b) does not submit any report or provide information as required pursuant to this Act;

(c) submits any false or misleading report in respect of any tests or inspections required pursuant to this Act;

(d) hinders or obstructs an inspector or environmental auditor who is exercising powers or carrying out duties, or attempting to do so, pursuant to this Act; or

(e) obstructs or fails to give all reasonable assistance to an inspector or environmental auditor who is exercising powers or carrying out duties, or attempting to do so, pursuant to the requirements of this Act,

commits an offence and is liable on conviction to a fine of $10,000 and imprisonment for 12 months.

(2) A person who is convicted of an offence under section 18(4) where the discharge or release of the controlled substance is from a ship, aircraft or vehicle or from any industrial or commercial premises, is liable on conviction-

(b) for a second or subsequent offence, to a fine of $20,000 and imprisonment for 2 years, or both;

(c) for a case of gross negligence, or in a case which results in severe damage to the environment, to a fine of $100,000 and imprisonment for 5 years or both;

(d) for a second or subsequent offence involving a case of gross negligence, or in a case which results in severe damage to the environment, to a fine of $500,000 and imprisonment for 10 years.

(3) A person who is convicted of an offence under section 14(1) or (2), 16(15) or 17(6) is liable on conviction to a fine of $100,000 and imprisonment for 5 years.

(4) A person who commits an offence against this Act for which no penalty is provided is liable on conviction, to a fine of $2,000.

21. Where an offence under this Act is committed and continues for more than one day, the offender is liable on further conviction to a fine not exceeding 10% of the maximum fine for that offence for every day after the date of the commission of the original offence during which the act constituting the offence continues.

22. Where an offender has pleaded guilty to or been convicted of an offence under section 18(4), the court may, in addition to any penalty imposed under this Act, having regard to the nature of the offence and the circumstances surrounding its commission, make an order-

(a) directing the seizure and forfeiture of any ship, aircraft, vehicle or thing used in the commission of the offence;

(b) directing the closure for up to 12 months of any premises or facility from which the discharge or release occurred;

(c) requiring the offender to comply with any other conditions as the court considers appropriate.

because the employee has reported or proposes to report to any person an act or omission that contravenes, or that the employee has reasonable grounds to believe may contravene, this Act.

(2) An employer who contravenes subsection (1) commits an offence and is liable on conviction to a fine of $20,000 and imprisonment for 12 months.

24. Where a corporation commits an offence under this Act, any officer, director, employee or agent of the corporation who directed, authorised, assented to, acquiesced in or participated in the commission of the offence is a party to and commits the offence, and is liable on conviction to the penalties provided in Part V.

25.-(1) The Minister may make regulations necessary to give effect to the provisions of this Act and in particular to-

(a) give effect to the National Policy and implementation programme formulated under this Act;

(b) establish procedures, standards, codes of practice, programmes and fiscal incentives to give effect to the National Policy and to the implementation programme formulated under this Act;

(d) provide for the prohibition of the use of halons in any building or construction material;

(e) prescribe fees that may be required to be paid under this Act or the regulations;

(g) prescribe forms of licence, or any other matter required to be prescribed under this Act.

(2) The Minister responsible for Finance must, on the advice of the Minister, make regulations under the Customs Act to-

(a) prohibit the importation of any controlled substance or of any apparatus or equipment containing a controlled substance without an import permit issued by the Director under section 16;

(b) provide for the variation of import duties in order to encourage the importation of equipment that does not contain or use controlled substances.

Group I - any of the following Chlorofluorocarbons whether virgin, recycled or in a mixture-

Chemical Formula	Substance	Ozone Depleting Potential
CFC1₃	CFC-11	1.0
CF₂C1₂	CFC-12	1.0
C₂F₃Cl₃	CFC-113	0.8
C₂F₄Cl₂	CFC-114	1.0
C₂F₅Cl	CFC-115	0.6
CF₃Cl	CFC-13	1.0
C₂FCl₅	CFC-111	1.0
C_{[1884] UKLawRpCh 138; 2}F₂Cl₄	CFC-112	1.0
C₃FCl₇	CFC-211	1.0
C₃F₂Cl₆	CFC-212	1.0
C₃F₃Cl₅	CFC-213	1.0
C₃F₄Cl₄	CFC-214	1.0
C₃F₅Cl₃	CFC-215	1.0
C₃F₆Cl₂	CFC-216	1.0
C₃F₇Cl	CFC-217	1.0

Group I- HCFCs- any of the following hydrochlorofluorocarbons whether virgin, recycled or in a mixture-

Substance	Chemical Formula	Common Name	Ozone Depleting Potential
Dichlorofluoromethane	CHFCl	HCFC-21	0.04
Monochlorodifluoromethane	CHF C²	HCFC-22	0.055
Monochlorofluoromethane	CH F²C¹	HCFC-31	0.02
Tetrachlorofluoroethane	C H²FC¹l	HCFC-121	0.01-0.04
Trichlorodofluoroethane	C²HF C⁴l	HCFC-122	0.02-0.08
Dichlorotriflouroethane	C²HF²Cl³	HCFC-123	0.02-0.06
Monochlorotetrafluoroethan	C²2HF³4C²l	HCFC-124	0.02-0.04
Trichlorofluoroethane	C2H2FCl3	HCFC-131	0.007-0.05
Dichlorodifluoroethane	C2H2F2Cl2	HCFC-132	0.008-0.05
Monochlorotrifluoroethane	C H F Cl	HCFC-133	0.02-0.06
Dichlorofluoroethane	C²H²F³Cl	HCFC-141	0.0.05-0.07
Monochlorodifluoroethane	C²H³FC²	HCFC-142	0.008-0.07
Chlorofluoroethane	C²2H³4F²Cl¹	HCFC-151	0.003-0.005
Hexachlorofluoropropane	C3HFCl6	HCFC-221	0.015-0.07
Pentachlorodifluoropropane	C3HF2Cl5	HCFC-222	0.01-0.09
Tetrachlorotrifluoropropane	C3HF3Cl4	HCFC-223	0.01-0.08
Trichlorotetrafluoropropane	C HF Cl	HCFC-224	0.01-0.09
Dichloropentafluoropropane	C³H F⁴Cl³	HCFC-225	0.02-0.07
Monochlorohexafluoropropane	C³HF⁵C²	HCFC-226	0.02-0.10
Pentachlorofluoropropane	C³HF⁶Cl¹	HCFC-231	0.05-0.09
Tetrachlorodifluoropropane	C³H²FCl⁵	HCFC-232	0.008-010
Trichlorotrifluoropropane	C³H^{[1884] UKLawRpCh 138; 2}F²Cl⁴	HCFC-233	0.007-023
Dichlorotetrafluoropropane	C³H²F³Cl³	HCFC-234	0.01-0.28
Monochloropentafluoropropane	C³H²F⁴C²	HCFC-235	0.03-0.52
Tetrachlorofluoropropane	C³H²F⁵Cl¹	HCFC-241	0.004-0.09
Trichlorodifluoropropane	C³H³FCl⁴	HCFC-242	0.005-0.13
Dichlorotrifluoropropane	C³H³F²Cl³	HCFC-243	0.007-0.12
Monochlorotetrafluoropropane	C³H³F³Cl²	HCFC-244	0.009-0.14
Trichlorofluoropropane	C³H³F⁴Cl	HCFC-251	0.001-0.01
Dichlorodifluoropropane	C³H⁴FCl³	HCFC-252	0.005-0.04
Monochlorotrifluoropropane	C³H⁴F²Cl²	HCFC-253	0.003-0.03
Dichlorofluoropropane	C³H⁴F³Cl	HCFC-261	0.002-0.02
Monochlorodifluoropropane	C³H⁵FC²	HCFC-262	0.002-0.02
Monochlorofluoropropane	C³3H⁵₆F²C¹₁	HCFC-271	0.001-0.03

Passed by the House of Representative this Eighteenth day of May, in the year of our Lord One Thousand, Nine Hundred and Ninety-Eight.

Passed by the Senate this Third day of June in the year of our Lord One Thousand, Nine Hundred and Ninety-Eight.

Chemical Formula	Substance	Ozone Depleting Potential
CF2BrCl	halon-1211	3.0
CF3Br	halon-1301	10.0
C2F4Br2	halon-2402	6.0

Fiji Sessional Legislation

Ozone Depleting Substances Act 1998