JOINT COMMITTEE ON EUROPEAN SCRUTINY debate -
Tuesday, 25 May 2010

EPA Code of Practice: Discussion

Chairman

The next item is a discussion with the Environmental Protection Agency, the Department of the Environment, Heritage and Local Government, Leitrim County Council and Biotech Treatment Systems Limited on the implementation of the new Environmental Protection Agency, EPA, code of practice on waste water treatment and disposal systems serving single houses. We have until 1.45 p.m. to complete our discussion. From the Environmental Protection Agency I welcome Mr. Dara Lynott, director, and Mr. Gerard O'Leary, programme manager, office of environmental enforcement, and from the Department of the Environment, Heritage and Local Government, I welcome Mr. Ivan Grimes, water services policy, and Mr. Niall Cussen, senior planning adviser.

The meeting will take the format of two parts. Initially we will have the Department officials and the Environmental Protection Agency followed by a question and answer session. We will then have Leitrim County Council and Biotech following which there will be a question and answer session.

Before beginning, I remind members of the long-standing ruling of the chair, to the effect that members should not comment on, criticise or make charges against a person outside the House or an official either by name or in such a way as to make him or her identifiable.

By virtue of section 17(2)(l) of the Defamation Act 2009, witnesses are protected by absolute privilege in respect of the evidence they give to this committee. If they are directed by the committee to cease giving evidence in relation to a particular matter and continue to so do, they are entitled thereafter only to a qualified privilege in respect of their evidence. They are directed that only evidence connected with the subject matter of these proceedings is to be given and are asked to respect the parliamentary practice to the effect that, where possible, they should not criticise nor make charges against any person(s) or entity by name or in such a way as to make him, her or it identifiable.

I invite Mr. Dara Lynott to make his presentation.

Mr. Dara Lynott

The Environmental Protection Agency thanks the joint committee for inviting us here today to update it on our research and guidance on the treatment of waste water from single houses. I understand members have a package in front of them that incorporates the opening statement with the actual guidance itself and some frequently asked questions.

There are an estimated 440,000 on-site waste water treatment systems in Ireland treating waste water from single houses, that is, houses not connected to a public sewer system. We know from work completed for the river basin management plans under the water framework directive that approximately 25,000 on-site systems are considered to pose a risk to ground-water with a much larger number — approximately 120,000 — posing a risk to rivers and lakes, called surface water.

We know that when on-site waste water treatment systems fail to operate satisfactorily they can threaten public health and water quality. In particular when septic tank effluent is not absorbed by the soil it can form stagnant, odorous pools on the ground surface. Contact with waste water means exposure to pathogens and increased risk to human heath. Even after treatment the effluent from the on-site waste water treatment systems pose a hazard to human health and the environment, if hydraulically the waste water cannot get away. I have included a table of typical pathogens that might be encountered in treated waste water. Faecal coliforms which are an indicator of faecal contamination can be over 1 million per 100 ml even after treatment by a septic tank. This reduces when one uses a proprietary system to less than 10,000 per 100 ml. In 2000, the EPA published a Wastewater Treatment Manual on Treatment Systems for Single Houses which recognised the role of proprietary waste water treatment systems for the first time. The manual provided guidance on the different types of systems and the appropriate site conditions for their use as well as introducing for the first time a comprehensive site suitability assessment methodology for waste water treatment systems for single houses. The manual was prepared following completion of an EPA sponsored research project carried out by civil engineering department, NUI Galway, which included an international literature review, studies on treatment systems and experimental work on percolation rates in soils. The Galway researchers are internationally recognised for their work on waste water treatment systems and have developed the Tuam waste water plant as a centre of excellence for waste water treatment plant systems design. They have published in peer reviewed international journals such as Water Environment Research, Journal of Environmental Engineering, Water Research and Agricultural Water Management.

In July 2007, the EPA produced a draft code called the Code of Practice: Wastewater Treatment and Disposal Systems serving Single Houses. This was put out for public consultation and we got about 65 submissions. The draft code built on the previous code dating from 2000 and incorporated the new requirements of Comite Europeen de Normalisation CEN, the European Committee for Standardisation and independent research carried out by Trinity College Dublin, which was sponsored by the EPA. Researchers from the civil, structural and environmental engineering department, TCD provided an independent review and some technical assistance to the Office of Environmental Enforcement on the submissions received. The Office of Environmental Enforcement met with the major stakeholders, including the Domestic Trade Effluent Association, the Irish On-Site Wastewater Association, the Department of the Environment, Heritage and Local Government and the National Standards Authority of Ireland to discuss their submissions on the draft code. The code was published under section 76 of the EPA Act and allowed for a wider range of technologies as compared to any other previous national guidance including biological aerated filters, rotating biological contactors, sequencing batch reactors, membrane systems, media filters, constructed wetlands as well as the conventional septic tank. It also allows a wider range of percolation rates for secondary treatment systems.

In October 2009, the European Court of Justice ruled against Ireland in relation to the regulation of on-site waste water treatment systems. The court found that Ireland failed to fulfil its obligations under Council Directive 75/443/EEC on waste water being disposed of in the countryside through septic tanks and other on-site waste water treatment systems. The October judgment of last year mentioned that "the code constituted by the updated version of the EPA manual, the relevance of which is admitted by the Commission in the final state of its pleadings, is still not mandatory for the authority responsible for granting planning permission." In other words, they were concerned that it was not a legal requirement for the planning authorities to use the code of practice by the EPA.

The Department set up a septic tank task force in response to the judgment and the EPA participates in this group. The code of practice is seen as a key element of the response to the judgment, as it sets out comprehensive requirements on new on-site waste water treatment systems to protect human health and the environment. It provides a methodology for site suitability assessment, system selection, installation and maintenance of on-site waste water treatment systems. The code of practice, I understand, is to be referenced in a proposed amendment to Part H of the Building Regulations 2010 and is referred to in a circular letter issued by the planning section of the Department on 5 January 2010.

There are many on-site waste water treatment systems now on the market for single houses that comply with IS EN 12566:3 and are designed to do the following, treat the waste water, prevent discharge of untreated waste water to the ground-water or surface water; protect humans, keep animals, insects and vermin from contact with waste water and minimise the generation of foul odours. But they do not reduce the volume of effluent produced.

The code of practice sets out guidance from the site assessment stage through to the design, installation and maintenance of on-site waste water treatment systems. The key messages from the EPA code of practice are: first, the importance of proper site assessment taking account of local conditions specific to the proposed site such as vegetation, drainage conditions and other receptors. Second, the need for design and installation of on-site waste water treatment and disposal systems that are specific to the local conditions. Third, there is a need for the correct installation and the ongoing maintenance of on-site systems and for its certification.

Section 70 of the Water Services Act 2007 places a duty of care on the owner of a waste water treatment system to ensure that it is kept so as not to "cause or likely to cause a risk to human health or the environment, including waters, the atmosphere, land, soil, plants or animals, or create a nuisance through odours." The code of practice reminds home owners of this responsibility and provides guidance on installation and maintenance.

While the level of treatment can be increased by new technologies, the main factor of concern is the hydraulic disposal issue, this is getting the water away, and reducing the water that needs to be disposed of. This is generally an issue when there is poor percolation and this is examined during the site characterisation or site suitability assessment stage. The percolation test assesses the ability of the soil to absorb water. This is assessed by recording the time for the water to drop in a hole over a specified distance. The measurement is key to helping to prevent humans coming in contact with treated waste water and thus being exposed to possible disease and foul odours. If the percolation test results are greater than 90, members have heard of the T90 test, the site is deemed to be unsuitable for discharge of treated effluent to ground, as the effluent will rise to the surface and pond there, leading to a risk to human health and the environment. The value of 90 means that it takes more than five hours for water to drop 4 inches in a percolation test hole.

If the subsoil type is unsuitable for discharge to ground, the code indicates that the treated effluent may be discharged to surface water in accordance with a water pollution discharge licence. I refer members to page 16 of the guidance supplied in the packs. The code of practice allows for new technologies not specifically covered by the national or European harmonised standards so long as they are certified to be fit for the purpose for which they are used, the conditions in which they are used and meet the performance requirements of the code of practice. Engineering solutions to the poor percolation issue include but are not limited to: low pressure distribution systems that distribute very low volumes of effluent over large areas; evapotranspiration ponds, or zero discharge systems, and community collection systems for example for cluster developments. The EPA is currently seeking funding to examine these and other possible technologies for use in Ireland. In the interim any proposed engineering solution that results in zero discharge, larger areas, community collection or minimal water usage can be considered by individual planning authorities. However, this will involve additional expense, must conform to environmental requirements and may need national certification.

The agency receives a large number of queries in relation to on-site waste water treatment systems. To address these queries we have prepared a leaflet with the frequently asked questions. It is on the EPA website and is in the packs supplied to members. We have a queries unit [e-mail], which deals with telephone and e-mail queries. In addition, I circulated to the committee a link to video downloads from the EPA website that went live last week, which are video tapes of the conferences we had for local authority officials in Sligo and in Limerick in March of this year. They are available to anyone to go through the detail of the code of practice.

My colleague Gerard O'Leary and I are happy to address any question members may have in this regard.

Chairman

Thank you Mr. Lynott. That was a very comprehensive overview.

I call on Mr. Ivan Grimes from the Department.

Mr. Ivan Grimes

I thank the chairman and members of the committee for the opportunity to address the committee on behalf of the Department of the Environment, Heritage and Local Government on the important subject of domestic waste water treatment. I am accompanied by my colleague, Mr. Niall Cussen, senior planning adviser. On 29 October 2009, the European Court of Justice issued a ruling against Ireland for failing to legislate adequately for the provisions of the waste directive in respect of the waste waters from domestic on-site waste water treatment systems. I will explain to the committee the implications of this ruling shortly.

Ireland has a long tradition of a significant proportion of its population living in rural areas. According to the 2006 census, approximately 40% of the population of Ireland resides in areas outside the main cities and towns with a population of 1,500 or more. The 1999 White Paper on rural development, the 2002 national spatial strategy and the 2005 planning guidelines on sustainable rural housing all acknowledge this tradition and the role of sustainable rural settlement in delivering more balanced regional development.

Assessing proposals for housing in rural areas is a significant element of the workload of planning authorities. The 2005 guidelines emphasise that "the planning system has a major role to play in ensuring the maintenance and improvement of water quality through the location of development". The EPA's water quality report for 2004 to 2006, published in 2008, noted that greater attention needed to be given to ground-water protection and in particular to prevention of pollution at source, including from septic tanks.

The 2006 census recorded 441,000 houses served by septic tanks or other similar systems. For comparison purposes, in Scotland 100,000 are homes served by on-site waste water treatment systems and the figure for Northern Ireland is 120,000. Construction activity in rural areas has varied in recent years but of the order of 15,000 to 20,000 new homes are built in rural areas each year. In many parts of the country, soil and ground conditions are such that effective on-site waste water treatment can be provided, discharging to ground, whether utilising conventional septic tank systems or proprietary effluent treatment systems. The EPA's new code of practice on waste water treatment and disposal systems serving single houses was published in October 2009 and sets out comprehensive requirements of design, installation and maintenance of on-site waste water systems. Colleagues from the agency have addressed this point with the committee.

While the code of practice was prepared and published by the EPA and the Department had no specific function in this regard, the Minister indicated that the relevant provisions of the code of practice will be called up into the technical guidance document H of the building regulations, which is currently under review. The public consultation process on the review ended on 8 March 2010. Submissions received are now being considered by the Department, in consultation with the building regulations advisory board, with a view to having the amended part H finalised this year. Part H and technical guidance document H set out the requirements and guidance for drainage and waste water disposal, including septic tanks. A septic tank installed in accordance with technical guidance document H is deemed to comply with the building regulations.

On 5 January 2010, the Department issued circular PSSP 1/10 to planning authorities and An Bord Pleanála. The circular advises new arrangements to apply for the assessment of on-site waste water disposal systems for single houses in light of the publication of the code of practice. The circular emphasises that the code is a key element in ensuring the planning system fully addresses the protection of water quality when assessing development proposals for new housing in rural areas in line with the 2005 planning guidelines.

I now propose to address the ruling of the European Court of Justice. In October the court ruled against Ireland on the treatment of domestic waste waters from septic tanks and other on-site waste water treatment systems. The court ruled that, with the exception of by-laws in County Cavan, Irish legislation does not transpose Articles 4 and 8 of the waste directive in so far as domestic waste waters from such on-site treatment systems are concerned. The court found that Irish legislation does not adequately provide for domestic waste water from on-site systems to be recovered or disposed of without endangering human health and without using processes that could harm the environment. Irish legislation also fails to provide for the prohibition of uncontrolled disposal of such waste waters. The court also found Irish legislation does not adequately provide that the holder of such waste waters either has it handled by a public or private waste collector or recovers or disposes of it in accordance with the provisions of the directive.

The court found that the approach and principles underpinning by-laws adopted by Cavan County Council in 2004 comply with the requirements of the directive. The court's ruling identified the key features of the by-laws that must be replicated in our response to the judgment. First, the by-laws provide for specific standards of performance, namely those set out in the EPA's manual on treatment systems for single houses, published in 2000, and its updated versions. Second, the by-laws apply to all on-site treatment systems. Third, they provide that systems must be inspected and assessed by a competent person at least every seven years. Finally, they provide for corrective action to be taken and they make any contravention of the provisions a criminal offence. It does not appear practical for compliance to be pursued through the adoption of by-laws by the other local authorities. It is considered more appropriate to take a national approach to this issue to ensure uniform standards. Primary legislation is required. The legal advice available to the Department indicates the legislation must deal with approval and authorisation issues and must establish inspection, monitoring and enforcement mechanisms and remediation measures.

At present, there are no national performance standards or monitoring arrangements for the 441,000 existing on-site treatment systems in Ireland. To address the court ruling fully it will be necessary to develop performance standards and establish monitoring arrangements for the existing stock of systems. However, establishing such standards is not straightforward. Changes in planning requirements, building standards and technological developments over previous decades may require different benchmarks to be applied for different technologies, while providing the protections necessary required by the directive. The EPA and the Department are examining this issue with a view to developing appropriate performance standards that will then be included as part of the legislative response to the court judgment.

I trust these actions have fully justified the Department's efforts in enhancing the legislative and policy framework as regards on-site waste water treatment systems. Returning briefly to the issue of new developments and the implications for them of the implementation of the EPA code of practice, the Department is aware that due to a number of physical and environmental conditions, some parts of the country — including, for example, part of County Leitrim as well as many other counties — will contain a predominance of areas that may not be readily suitable for the provision of on-site waste water treatment and disposal systems that depend ultimately on discharge of treated waste waters to ground.

Unsuitability for discharge of treated waste waters to ground should not be interpreted as an inflexible barrier to all otherwise appropriate development in such areas, especially developments that meet the genuine housing requirements of established rural communities. Rather, in such circumstances careful integration between water quality and planning issues, coupled with the consideration of the potential for alternative policies and technologies such as cluster development and constructed wetlands, should make it possible to outline in a local authority development plan how and where development can proceed in a way that meets the needs of rural communities and protects water quality and human health. The Department has been examining alternative solutions that might address both of these needs.

For example, the Department's statement of strategy includes a commitment to publish good practice guidance for the development and restoration of wetlands. The Department is overseeing the development of guidance for the design and construction of integrated constructed wetlands. These have the potential for the treatment of polluted water, enhancement of biodiversity and the attenuation of flood risk. It has been decided to produce the guidance document in instalments, with the first focussing on integrated constructed wetlands for the treatment of point sources of pollution from domestic waste water and farmyard soiled water. The first instalment of guidance is expected to be published shortly.

The waste water treatment pilot project, advanced by the Department, the national rural water monitoring committee and the relevant local authorities, was completed in 2007. Following full commissioning of the plants, performance monitoring commenced in 2008 and continued in 2009. Substantial progress has been made on the preparation of reports on the pilot project with one remaining element relating to the septic tanks effluent drainage systems, remaining to be fully reported on before completion of the overall final report in 2010. The objective of the pilot project is to assess new cost-effective ways of providing waste water collection and treatment systems for small rural villages and to test a range of innovative technologies for collecting and treating domestic waste water and include conventional treatment plants as well as vacuum sewers as opposed to traditional gravity and pumped systems. As part of the programme to evaluate new technologies for providing cost-effective and efficient waste water collection and treatment for small rural villages, a septic tank effluent drainage system, STEDS, was also assessed. The STEDS approach is based on retention of the septic tank on the householder's property and the collection of the effluent only for subsequent treatment and disposal.

Taking account of this and other relevant research, as well as the implications of river basin management plans and planning-based estimates of future development requirements for housing in rural areas, the Department is of the view that a further practical exercise should be undertaken to demonstrate how to achieve proper integration of water quality and planning issues in meeting the needs of rural communities and protecting water quality and human health. The Department will consider how this exercise could operate in conjunction with the EPA, expert researchers and relevant local authorities in trialling a planning-based initiative for subsequent roll-out to other parts of the country. In this regard the issues that have arisen in Leitrim suggest the county could act as a potential test site.

Notwithstanding the court judgment, the regulation of waste water treatment systems is a very important issue. Members may be aware that the Joint Committee on the Environment, Heritage and Local Government published a report last year calling for greater regulation in this area. That report is helping the Department to inform its response to the court ruling. The intention in respect of the court judgment is for legislative proposals to be brought before the Houses of the Oireachtas, probably later this year. Members can be assured that there will be ample opportunity to debate these proposals and to contribute to the development of Ireland's response.

Chairman

In light of the constraints on time I propose we take questions and answers for 20 minutes.

Deputy Joe Costello

I thank the representatives from the EPA and the Department for attending to outline the present state of play as regards waste water management and the recent proposals. Can the Department of the Environment, Heritage and Local Government say how it is that the European Union waste water directive, tabled just two years after we joined the European Union in 1975, has still not been transposed into legislation after 35 years? It was inevitable that Ireland would be taken to the European Court of Justice and it was inevitable that we would be fined. How much did Ireland have to pay, in respect of its own costs and the EU costs of taking the case against us, three quarters of which we were required to pay? It must seem to the ordinary punter to be an inordinate length of time for any Government, or any Department, not to take action on a directive which we had an obligation to implement within three years, as is the case with all directives. It seems not just careless but negligent.

Are there any short-term remedial proposals for the 441,000 housing units which are effectively in breach of the directive? Are there any proposals to look into the by-laws adopted by Cavan County Council, which are in compliance with the directive? If it is possible for the council to adopt those by-laws under an existing model which is viewed by the European Union as effective, why do we need pilot programmes? Is this not simply another way of delaying the process? We have a code of practice which is not mandatory and we have heard proposals for future legislation, but we have been found to be in breach of the directives and fined by the European Court of Justice. How can this be allowed to happen when, last year and the year before, the drinking water of an entire city, namely Galway, was polluted for long periods and the ordinary citizen had to buy water to drink? Will this situation continue because of the fact that our stock of housing throughout the country has inadequate waste water treatment?

Although we are seriously in breach, good practice seems to have been followed in other countries, such as Northern Ireland and Scotland. When will we get proper precautions, adequate monitoring and a proper system to deal with waste water? Is there a breakdown of the number of stand-alone housing units relative to those connected with farming? In farms, there are tanks to collect effluent and slurry while stand-alone houses have their own septic tanks which are inadequate to deal with the problem. How has the "septic tank" approach been allowed to go on for so long? Everybody in the country would have thought that septic tanks were sufficient for our needs and local authorities have consistently given planning permission for developments of such a kind. It must have been broadly known that they were not in compliance with standards but one-off housing continued to be the policy. The spatial policy and various regulations were, presumably, totally disregarded by local authorities all over the country.

The Department of the Environment, Heritage and Local Government had a major role in the supervision and monitoring of this matter and in the implementation of the directive but it failed in all these things.

Chairman

I will call on Ms Marian Harkin, MEP, Senator Leyden, Deputy Scanlon, Senator Burke and Deputy Hogan, in that order.

Ms Marian Harkin, MEP

I thank the delegates for their presentations, which were most informative. There has been no comprehensive study of septic tanks by the EPA or any other organisation. There have been several small studies, some of which I have looked at, but many people consistently overstate the impact of septic tanks.

We were told that a total of 145,000 septic tanks were considered to pose a risk. I have no doubt that is true but it is very important to distinguish between ameliorating the current problem and dealing with what might be constructed in the future. We need to deal with the current problem and that is the 145,000 septic tanks, many of which are old, were not properly constructed in the first place and have not been maintained. We have spent hundreds of billions of euro, much of it from the EU, on upgrading and maintaining our urban waste water systems but have not spent any money on upgrading and maintaining the 145,000 septic tanks which may cause a risk. Can the Department say what plans it has to put in place funding to deal with the issue? The western river basin management plan addresses the matter and recommends that funds be provided for this purpose.

My next question concerns Cavan. I have read the judgment and it is clear that the by-laws satisfied the requirements of the directive. Are the new EPA guidelines similar to or more onerous than what has been in place in Cavan? While I know what is in the guidelines I have no idea of what is contained in the by-laws in County Cavan so would be grateful for a brief comparison of the two.

In his presentation, Mr. Grimes stated "unsuitability for discharge of treated waste waters to ground should not however be interpreted as an inflexible barrier to all otherwise appropriate developments in such areas". I understand that and it is clear in what it says. However, his next phrase tells us something else. It states "especially developments that meet the genuine housing guidelines of established rural communities". In these two phrases there is a mix between the issue of septic tanks and county development plans and one is being used to influence the other. This is a particularly difficult issue and I am concerned that the issues surrounding septic tanks may be used in some way to influence planning policy. The two should be separate. If there is not an inflexible rule, an application should stand on its own merits and not be linked to "genuine housing requirements of established rural communities". Somehow, I doubt that this is written into the County Leitrim development plan.

I am glad to know that pilot projects are being carried out as they will prove useful. I may be mistaken, but I believe there is one planned or under way in County Wexford. It is clear one cannot translate what happens in Wexford to Leitrim, yet it seems that Leitrim is the county that will be most affected by the new guidelines. Why, therefore, is it not possible to consider the initial pilot project for County Leitrim where many of the problems will arise, rather than elsewhere?

Senator Terry Leyden

I welcome the officials from the Department and the EPA and the observers from Leitrim County Council, Mr. Jackie Maguire the manager and colleagues Mr. John McTiernan and Mr. John McCartan, councillors. I am a member of the Royal Institute of Architects of Ireland, RIAI, but am not practising currently as I have enough to do as a Member of the Seanad. Over my years in this area, I have been responsible for the installation of many septic tanks. More than 400,000 septic tanks have been installed in Ireland and these have worked well in many cases. How they work depends on the land conditions. It is an inexact science, although they have become more developed than they were in the 1970s and 1980s. Percolation tests are now a requirement.

The new regulations provide for corrective action to be taken and make any contravention of the provisions a criminal offence. We would not have enough prisons if we started imprisoning people because their septic tanks were not working correctly and if this is the implication of the provision, we should forget about making it a criminal offence. We must concentrate on working through persuasion. I agree with Ms Marian Harkin, MEP, with regard to providing financial assistance towards the upgrading existing septic tanks. This is vital.

There are two main issues. The first concern is the existing septic tanks and the other is the concern of Leitrim County Council and the planning authority with regard to new applications. The IFA contacted me last night about this meeting and it has a serious concern. It is concerned about active farmers in rural communities and wants to see continuity for farmers. I have ensured continuity on our farm in Castlecoote, Roscommon, where my daughter and husband have built a house on the farm with a septic tank. We had enough land to provide a proper system. The IFA is deeply concerned that there might be a blanket type objection to such provisions.

Leitrim has a particular problem relating to site conditions, which is why this issue is such a concern for the county council there. The meeting we had with the EPA, Members of the Oireachtas, councillors and officials of Leitrim County Council was very worthwhile. I commend the worthwhile submission made by the executive of Leitrim County Council. I would like to see discussions take place on that. I agree with Ms Marian Harkin, MEP, that Leitrim County Council ——

Chairman

Its representatives will give evidence here shortly.

Senator Terry Leyden

I welcome that. The Chairman was at the meeting and knows ——

Chairman

Yes, we support the Senator, but I ask him to keep to questions.

Senator Terry Leyden

The question is whether support will be provided to upgrade the existing septic tanks. If the European Union lays down requirements, it is obvious it should provide funding to support any upgrading of existing septic tanks that is required. I would also like to ensure that the words "criminal offence" will be removed from any proposed legislation. Whatever sanctions are involved, these should not include a criminal offence.

It will be costly to upgrade septic tank facilities. County councils need to increase the number of small rural sewerage schemes and these should be approved by the Department of the Environment, Heritage and Local Government. There has been great progress in this regard. New systems are also being introduced which will deal with the proper treatment of sewage from one-off rural houses. The message for the Department and the EPA is that it is vital for the continuation of rural Ireland that septic tanks will be permitted. Every case is a separate issue because land conditions are not the same for any two applications. Each application must be examined and granted on its merits rather than have a total ban on septic tanks in any county.

Deputy Eamon Scanlon

I thank Mr. Grimes and Mr. Lynott for their presentations. This issue arises as a result of an EU directive which was a guideline becoming a regulation. Not alone does it affect Leitrim, it also affects Sligo. Deputy Costello's home parish there will be adversely affected by the regulation. We are in the position where we have a regulation, but we must try to resolve the issues. There are two problems, first the existing systems and second, the need to deal with people requiring planning permission in rural areas. It is important to remember that speculative planning applications for rural sites are a thing of the past. This does not happen any more. Rural sites are not being sold off. What is happening is that farm families seek planning permission for their own land to try to continue their farming business. It must be accepted that these people need to live on the land.

It appears from the submissions made that there may be a delay of two years in coming to a conclusion on the tests being conducted in Wexford. This is unsatisfactory. We need a solution. Councillor McCartan and people with him have a suggestion and a system that might work. Another system was discussed at our last meeting and perhaps we could broaden the debate to include that. Can Mr. Grimes tell us the Department's responses to a suggestion that arose at our meeting with the EPA the last day? If an applicant has a water course for run-off water and has adequate soakage, the application will be fine, but if not, that is where the problem arises. The suggestion is that where there is space it might be possible to put in an extra tank to gather the run-off water which could then be disposed of through a recognised sewage treatment plant owned by the local authority. Is that possible and will it be considered? If that is a solution, it could also help resolve the difficulties with regard to the existing 400,000 tanks. These are a problem with which we must deal. I would like to hear the opinion of the Department with regard to this sensible suggestion.

Senator Paddy Burke

I welcome the delegations and have two brief questions for them. Members of local authorities and public representatives have always been told by the manufacturers of these proprietary treatment units that the water and outflow from them was almost drinkable, but now we are being told they do not work. Will one of our guests outline the actual position?

It was stated that the European Court of Justice found that Irish legislation does not adequately provide that any holder of waste water must have it handled by a private or public waste collector. As everyone is aware, many waste water treatment units are design-build-operate facilities. The disposal of waste is quite expensive. Deputy Scanlon stated that people might have second tanks for run-off water. In Castlebar, such water could be disposed of at the design-build-operate facility that is currently under construction. In light of what local authorities are charged for the use of such facilities, I would not like to be obliged to go to one each week to dispose of a tank of water. The amount charged will increase each year.

What are the Department's proposals with regard to the cleaning septic tanks or proprietary units? Will people be obliged to have them cleaned on an annual or a two-yearly basis? What level of charges will be imposed for this? Certain controls will have to be introduced because those who own design-build-operate facilities will charge people huge amounts for their services.

Deputy Phil Hogan

There is no doubt that the quality of ground water is an important issue. Regardless of the side of the argument on which they find themselves, people subscribe to that view.

Mr. Grimes referred to a number of matters relating to water services. The recent announcement in respect of the new water services programme — which will be in place for three years — indicated that there would be a certain level of investment. To place the matter under discussion, namely, the waste water treatment and disposal systems serving single houses, in context, will Mr. Grimes indicate how many of the local authority schemes listed on the new programme will be implemented during the next three years? It must be remembered that local authorities are experiencing difficulties in the context of providing the 25% to 30% local contribution at present.

Will Mr. Lynott indicate the number of local authorities responsible for the direct pollution of rivers and streams at present? Has the Department carried out a survey of that? Perhaps Mr. Lynott might be in a position to indicate the extent of the municipal problem and the level of pollution to which single houses give rise. He stated that, under the terms of the water framework directive, some 25,000 on-site systems are considered to pose a risk to ground water. What is the basis of that assertion? He also stated that some 120,000 pose a risk to rivers and lakes. Has a study which indicates that this is actually the case been carried out?

On the new technologies available, we have always been led to believe that — irrespective of soil conditions and taking account of such conditions — there is an engineering solution to every problem. Does the pilot programme involve examination and testing of new technologies? Will the onus be on manufacturers to certify that the technologies they have developed will fulfil their purpose?

The river basin management system was drawn up and is currently being implemented with the assistance of the Department by local and regional authorities. I understand that little consultation has taken place in respect of this matter. Submissions have been sought, but unless stakeholders are involved, it will not be possible to encourage people to buy into the scheme and ensure that the quality of ground water improves. Stakeholders must be provided with incentives if we are to obtain results in respect of improving water quality. How does the Department propose to incentivise all stakeholders — be they farmers, anglers or businesses — to ensure that we implement a plan that can yield results? Schemes such as REPS must be reintroduced to ensure that people receive a level of recognition and compensation for the essential works required to ensure that the desired outcome of improving water quality is achieved. This must be done in a consultative and co-ordinated way.

Deputy Timmy Dooley

I welcome our guests and thank them for their presentations. Quite a number of my concerns have already been addressed. However, it is necessary to reconsider the urban-rural divide and, to the greatest extent possible, treat each individual with a level of equity and fairness. It would be entirely wrong to criminalise and penalise rural dwellers based on decisions they made ten years ago in line with the legislation or practices that then held sway.

We must consider this as an opportunity to resolve a problem rather than as an opportunity to force people into resolving that problem. Ms Marian Harkin, MEP, made a valid point about the necessity to provide the appropriate level of funding. Government policy is currently focused on examining the opportunities that exist, particularly in the areas of insulation and reducing carbon emissions, to try to stimulate a level of activity in the economy. We must view that matter under discussion in the same context. While legislation allows for the imprisonment of county managers who fail to adhere to the standards laid down, I do not believe the same level of enforcement can be applied in respect of the owners of private homes or private individuals. I hope the approach chosen will focus on the opportunity to resolve the problem rather than that relating to penalising people.

People who have come to accept that the need to protect the environment is a very real issue will buy into any approach that emerges. They have come to enjoy the greater benefits presented by insulating their houses and reducing carbon emissions. We are, therefore, trying to communicate with those whose mind set has changed. It would be wrong if the new code of practice were to lead to people being criminalised for non-compliance or having penalties imposed on them. Some form of programme or campaign will have to be developed and the State — whether through the establishment a community employment scheme or direct intervention to resolve the problem — will need to be involved in this.

The question of future planning is a real issue in some areas. The EPA, in the context of some of the guidelines that have been provided, has been of assistance. There is, however, a lack of uniformity with regard to how those guidelines are adhered to or accepted by some planners and planning sections. This matter must be considered from either a departmental or national point of view. I would welcome our guests' general views on the capacity to ensure that there is equity.

People whose properties are connected to public sewerage schemes — regardless of the impact of their discharges, be they into local rivers or lakes — should not be found guilty or culpable for their actions. If matters progress in the way outlined earlier, people who, in good faith, installed septic tanks beside their homes between ten and 20 years ago could suddenly find themselves in breach of the law and, based on certain criteria, could be saddled with criminal records. That would be entirely wrong, particularly if the necessary lead-in period and mitigation measures were not provided and if people did not have the capacity to resolve the problem without incurring undue financial costs.

It must be accepted that people who live in rural areas incur greater costs in respect of the provision of services. In general, they are also responsible for the provision of their own water supply. Has consideration been given to enhancing the position with regard to the provision of group sewerage schemes? In the context of most of the one-off houses located in isolated farming environments, the surrounding land has enough capacity to allow the discharge to be filtered. Issues tend to arise in respect of ribbon developments, where a concentration of septic tanks occurs. In the main, this happens not in the more rural or isolated areas, but on the verges of towns or villages that lack a sewerage scheme.

Chairman

I call on Mr. Lynott to respond first to the comprehensive list of questions, to be followed by Mr. Grimes.

Mr. Dara Lynott

I will respond to a few of the points and perhaps the Department's representatives may pick up on a number of the legislative issues.

Chairman

After Mr. Lynott has concluded, I will ask Mr. Grimes to so do.

Mr. Dara Lynott

My understanding, to return to the comments made by Deputy Costello, is that the waste directive was introduced in 1975. It would be fair to state that were one to ask me four years ago whether I considered a septic tank to be a waste facility, I would have had quibbles with such a description. In any event, the Commission has taken that view, principally because it deals with and treats the waste. Therefore, the Commission seeks an equivalent regulation to a waste facility such as a transfer station or a landfill, that is, there should be registration, inspection, maintenance and operation. The Commission had initiated a number of court actions against Ireland under different directives, such as the dangerous substance directive and the ground-water directive, but had failed in its attempt to include the septic tank issue. It was only successful when it approached it from the waste framework directive perspective.

As for the remediation of septic tanks, obviously the present position is that the ECJ judgment has found Ireland to be non-compliant. The Commission came back with a wish list of what it considers Ireland must do to comply with that judgment. I understand the Department has provided a number of items to the Commission, which is assessing that response at present. If Ireland does not come up to standard, it then has the option to go back for fines. In other words, we are in the in-between period between the judgment and the imposition of fines. The degree to which Ireland can meet the demands of the Commission will determine whether fines are imposed.

Deputy Costello mentioned good practice in other countries. We have conducted an extensive review of other countries which have a similar concentration of septic tanks to Ireland. We have tended to examine the United States in particular, where there are a significant number of septic tanks. Unfortunately however, we have not found a silver bullet or a key technology that should be implemented in Ireland. The same issues come into play, that is, that a treatment system is available that will do the job in respect of faecal coliforms, phosphorus, nitrogen and all the parameters. However, the key issue is that of hydraulics, namely, what happens when one has water in a hole that takes quite a number of hours for its level to drop an inch or two. They are investigating the systems to which I referred, that is, greater land area, zero discharge systems and evapotranspiration, which is a different kettle of fish in southern California or South Carolina than it is in western parts of Leitrim, as well as surface water discharges.

On further studies of septic tank systems, I agree with Ms Harkin, MEP, that we have been obliged to develop from a standing position in 2000, when we had very little information on how septic tanks operate. We were able to engage with NUIG and its expertise in this regard runs all through this document to such a degree that we consider it to be world experts on this issue at this stage. I note the NUIG has developed this further in its Tuam waste water treatment plant. As for further studies, the studies that are required are to deal with the lands in Connemara with fractured bedrock sites and the lands in counties Leitrim, Sligo and Cavan with blue daub, this dense subsoil that does not allow water to penetrate.

We have accepted the invitations of the Minister, Deputy Ó Cuív, and the Minister of State, Deputy Finneran, to submit proposals for research studies on that issue. The value of such studies will arise from planting them within counties such as Leitrim, as well as in Connemara, to determine what new or green technologies are available to deal with the hydraulic issue. I also agree that just as is the case with southern California or South Carolina, Wexford evapotranspiration, in the sunny south east, might not work as well in Maam Cross or Carrickmacross.

As for the existing stock of facilities, again we are working with the Department to try to develop a form of inspection regime, knowing that quite often there is no clear solution. This pertains to Senator Leyden's comments. However, we are trying to break down our standard into some of the site, inflow, tank and distribution box issues and the percolation areas. We are trying to divide it up into a series of checks that a homeowner can get inspected to determine how far away they are from the full solution. While it would be difficult to retrospectively bring each of the 120,000 septic tanks up to a standard, there is a period of negotiation ongoing to ensure that we can bring up these septic tanks to the best standard they can achieve within their current circumstances.

I agree with Deputy Scanlon with regard to the delay in the research area. I suppose the standard arose from a standing point in 2000. The 2007 standard has not really changed that much, except to allow for a greater number of technologies and to give recognition to the fact that because proprietary systems give a greater degree of treatment, they therefore come under a somewhat lesser standard in respect of their discharge. In other words, they get a break. This standard has only been extant since 2009, which has prompted the discussion we are having at present about western counties and their ability to meet an environmental standard of this view. However, I believe it will be possible to develop answers on the run.

We are not obliged to wait in a scenario whereby we install a pilot test, run it for two years and then wait another year for a report. The nature of these matters tends to be such that one can focus on engineering standards and design parameters as the project continues. My concern is to start and secure funding for these projects as soon as possible. The reason we are writing to the Minister of State, Deputy Finneran, and to the Minister, Deputy Ó Cuív, is to establish whether the Departments of Community, Rural and Gaeltacht Affairs and the Environment, Heritage and Local Government can support the Environmental Protection Agency in its research. We can run and execute this research and already have on board the researchers but we need to get the funding mechanisms in place.

In response to Deputy Hogan's questions on municipal issues, every two years we produce an urban waste water treatment plant report. The last one was issued last year and we can make it available to members. The studies produced under the water framework directive suggest that in the case of 40% of the rivers which are at risk of not achieving the water framework directive standards, this is directly the result of municipal discharges. Primarily, this occurs through the lack of or inappropriate or inadequate waste water treatment plants being in place. As for the numbers of septic tank systems, the numbers come directly from the work on river basin management, whereby different river basins were obliged to tackle different national issues. While I am open to correction, the western river basin district took on the job of assessing the impact of the septic tank systems. Consequently, these figures are grounded in the research for the studies that are available on the water framework directive website. Moreover, I agree that any pilot plant must take account of the soil conditions and the focus of any pilot plant will not really be on the technologies. The technology is solved but the issue pertains to how one deals with poor hydraulic conditions and I perceive that to be the focus of a pilot system.

As for the incentivisation of stakeholders, the river basin management plans are being finalised at present. They have been signed by the elected representatives of most of the local authorities. At present, the EPA has the role of evaluating all such plans and then writing to the Minister to advise him of the agency's views thereon. We will definitely take cognisance of the issue of trying to incentivise compliance because it is a very onerous target to meet the 2015 deadline. There is a substantial amount of investment and goodwill but unfortunately some enforcement will be required to drive it forward.

I agree with Deputy Dooley that we cannot readily go down the road of the criminalisation of the homeowner. First, we need to get a national approach and the Department needs to determine an inspection programme. The timelines are important. We could learn some lessons from the energy scheme whereby on the sale of a house one could get a certificate at that point. The real issue is whether the Commission will have the patience or the ability to accept those. I think this is a generational problem we cannot solve in two or three years. In essence it has been developing for the past 40 years.

In terms of the greater costs in rural Ireland such as transport and water, it is clear that the traditional septic tank method of disposing of waste water will not be the solution in many areas. There will need to be an extra expense in terms of either proprietary waste water, tertiary waste water, greater area or the planting of willow beds. The clear message is that the traditional septic tank in poor soil areas where the water cannot get away will not be acceptable to the Commission as it will hamper Ireland's ability to deliver the 2015 targets if we continue to go down that route.

Deputy Timmy Dooley

We speak a good deal in this committee about the principle of subsidiarity and it is a major component of our role resulting from the Lisbon treaty. While this is an issue of concern across Europe, at the end of the day the pollution created as a result of this does not impact on any other member state. Clearly there is an issue if one is part of a landmass.

Chairman

There is a 35-year directive on this issue.

Deputy Timmy Dooley

I accept that but we are talking about subsidiarity. In essence it is ourselves we are impacting on. The resolution of the problem must be a national one. We do not impact on a neighbour to the extent that by the time whatever discharge is there gets to the sea, the problem is mitigated by virtue of our distance from any other country.

Chairman

We are under considerable time pressure and two other witnesses——

Deputy Timmy Dooley

I accept that but perhaps it is an issue we need to address at a later date.

Senator Paddy Burke

Can we have an example of zero discharge?

Mr. Dara Lynott

Zero discharge is very difficult to achieve. The only solution I am aware of is the equivalent of a constructed wetland or a significant area. What one is trying to achieve is that the combination of root uptake and evapotranspiration exceeds the amount of rainfall, surface water and discharges from a house. It is difficult to achieve it without a significant area. What we are relying on, particularly during the summer months, is that the thirst of the plants and the evapotranspiration of the water by the sun will be enough volume to allow for the winter rainfall and the winter discharge from the plant to be stored during that six or eight months for which there is no evapotranspiration and no growth. It is very difficult. I do not think we have enough information that would tell us if that is possible in Leitrim where the rainfall is three or four times the rainfall of other parts of the country and whether we have the type of data that would allow us to say the type of plants we would need and what those plants actually build up.

Mr. Ivan Grimes

Mr. Lynott has dealt with a number of issues. I will attempt to address some of the points he may not have covered. Deputy Costello's initial comments suggested we should have seen this coming, given that the directive dated back to 1975. The defence we submitted to the court in the proceedings listed a comprehensive body of legislation dating back to the 1878 Public Health Act, including the local government water pollution legislation, building control legislation, and planning and development legislation, up to and including the Water Services Act 2007. What enabled the Commission to take this case under the waste directive was a court ruling in 2007 against a Thames water utility. I dispute any suggestion that we should have seen it coming. We were quite surprised when the infringement proceedings were taken under the waste directive.

I am not aware of the actual costs of the case but I do not think they will be significant given that the work was undertaken by officials who were involved in this area generally. There was no court hearing. It would have been essentially a paper-based exercise but we can provide details on cost if they become evident to us.

The proposed legislative response in this case will be mirrored on the key features of the Cavan by-lays. That has been set down in the court judgment and that is what we have to do. It is the Minister's intention that a public consultation process will be undertaken to advise and inform the structures to be put in place for the monitoring and inspection. That will take place later this year. As Mr. Lynott has mentioned, the court judgment starts the clock ticking for us in terms of the need to have a response in place. Obviously we will be treating it as a matter of priority.

Chairman

What did the Cavan by-laws do that was different, given that the rest of the country failed? Cavan adjoins counties Sligo and Leitrim which have the same type of soil. I am mystified because we are talking about local government which got a derogation from EU laws.

Mr. Ivan Grimes

I think I set it out in my opening statement.

Chairman

That has not been clarified to me. I have not got the real explanation to that question.

Mr. Ivan Grimes

It provides for an independent inspection system.

Chairman

What is to stop Sligo County Council and Leitrim County Council implementing by-laws in a similar vein?

Mr. Ivan Grimes

We have considered and discussed that issue and got legal advice that the appropriate way to ensure compliance with the court judgment for Ireland as a whole is to take the primary legislative route.

Chairman

On that point, we are talking about a 35-year directive. This is very much a draft code of practice being preferred by the Department. Even in the short term, is there any legal obstacle to Leitrim County Council introducing a code of practice into Leitrim?

Mr. Ivan Grimes

To be fair, the code of practice and the European Court of Justice judgment are two different matters.

Chairman

I know they are, but this is a question I find very difficult. We are talking about the primary legislation that will be coming down the tracks. The situation as it now stands was raised by several members in very direct questions. Without overstating the issue, it is obvious there have been several breaches. I am talking about the rural economy in a functioning county where the economy of scale is minimal. Local economies are on the floor. What is the role of the local business economy where a father gives a site to a son or daughter to build a house? They are being refused in Leitrim and in the greater part of Sligo. In an adjoining county which has a code of practice they still did not get planning permission. I find it difficult to understand that.

Mr. Ivan Grimes

The EPA's code of practice relates to new developments. The ECJ judgment relates to all existing systems. Therefore, they are two separate matters.

Chairman

Yes.

Deputy Timmy Dooley

How can we get over the problem with the Commission in the least intrusive way? I am concerned that the EPA is going down the road of primary legislation because it gives greater control to the centre to resolve the problem. Based on some of the language, the witnesses effectively criminalised the person who was in breach. There were specific issues in Cavan, as I understand it, which had more to do with the concentration of pig farming in those areas and some of the concerns they had about ground water issues. To roll that out nationally we would need a great deal of consultation. My concern is that we will criminalise people in a far too aggressive way.

Ms Marian Harkin, MEP

I agree with what has been said and I asked a question on the difference between by-laws in Cavan and elsewhere. We could satisfy the Commission and deal with this as suggested by Deputy Perry and others. We do not need primary legislation to do so. The situation has become clouded. The guidelines are about the future and that is a separate debate. We could deal with the court judgment overnight and it is important that the Department is clear on this point. I agree with Deputy Dooley that we are using the court judgment as an excuse to ensure decision-making is more centralised. I made that point when I read the Department's presentation, which referred to genuine housing requirements of established rural communities. I pointed out that the Department was mixing up planning policy and the impact of the court judgment.

Chairman

Local authorities have defined roles in a system monitored by the Department with delegated responsibility and defined responsibilities and rights. There were no rights and responsibilities when it came to the operation of this in regard to the construction sector. I refer to the rights and responsibilities of people who are building a home and putting in services. The clarification on the directive, which has been here for 35 years, is required because it was the best kept secret in terms of public information. Who was aware of the code of conduct? Has it been promoted on our national airwaves? To my knowledge it has not been and if it was, it was not very noticeable.

Mr. Ivan Grimes

I note the concerns about the national response but the ruling is against Ireland, not individual local authorities. The Department and other stakeholders involved in the task force, namely, the EPA and the local authorities, are trying to develop a graduated response to the issue. We are trying to develop a pragmatic response to the implications of the ruling. We do not claim to have all the answers. We have examined best practice in other jurisdictions and our intention is to hold a consultation process later in the year. At this time we will be more than happy to consider the options. The difference between us and other member states is that they do not have an ECJ ruling against them.

Deputy Eamon Scanlon

What are the views of the Department on the idea that one-off water can be treated in a local authority treatment plant?

Mr. Dara Lynott

It is perfectly reasonable for that to happen in respect of holding tanks.

Deputy Eamon Scanlon

Surely it is a solution to a very serious problem.

Mr. Dara Lynott

We mentioned that in our guidance and the issue will be the cost of transferring that to a waste water treatment plant. That is allowable under the current regime and under the guidance statement.

Chairman

I thank Mr. Lynott, Mr. O'Leary, Mr. Grimes and Mr. Cussen for a comprehensive overview on the topic. I would like the delegates to remain in the Visitors' Gallery to hear the remainder of the meeting. We appreciate the direct submission.

I welcome the delegation from Leitrim County Council, Ms Jackie Maguire, county manager; Mr. Brian Kenny, senior engineer; and Mr. Martin Dolan, director of services. I acknowledge the presence of Councillor John McTernan and Councillor John McCartin of Leitrim County Council in the Visitors' Gallery. I also welcome Mr. Tadhg Linehan, managing director; and Mr. Seán Maher, senior executive, of Biotech Treatment Systems Limited. By virtue of section 17(2)(l) of the Defamation Act 2009, witnesses are protected by absolute privilege in respect of the evidence they give this committee. If you are directed by the committee to cease giving evidence in relation to a particular matter and you continue to so do, you are entitled thereafter only to a qualified privilege in respect of your evidence. You are directed that only evidence connected with the subject matter of these proceedings is to be given and you are asked to respect the parliamentary practice to the effect that, where possible, you should not criticise nor make charges against any person or entity by name or in such a way as to make him, her or it identifiable.

I invite Ms Maguire to proceed with her presentation.

Ms Jackie Maguire

I thank the committee for the opportunity to address it on behalf of Leitrim County Council on the implications of the introduction of the new code of practice and waste water treatment and disposal systems serving single houses. The EPA and the Department have already outlined that the code of practice for waste water treatment disposal systems serving single houses was prepared and published under the provisions of section 76 of the Environmental Protection Act and was issued in October 2009. The code of practice was introduced as Ireland's response to an ECJ judgment, which found that Ireland was in breach of Article 4 of the 2006 waste water directive.

Its introduction was followed by circular letter PSSP 1/10 of 5 January 2010 from the Department of the Environment, Heritage and Local Government. This requires planning authorities that have not already done so to implement the terms of the code of practice in respect of all applications received on or after 8 January 2010. Leitrim County Council is very conscious of the necessity to protect our environment and we are fully aware of the vulnerability of ground water and the dangers that can be posed by inappropriate or inefficient on-site treatment systems. We are cognisant of the provisions and obligations of the water framework directive and the river basin management plans that we are adopted. We acknowledge that the purpose of the introduction of the guidelines and codes of practice is to assist planning authorities, builders and system manufacturers, designers, installers and operators in dealing with the complexities of on-site systems for single houses.

It is also essential the guidelines and codes of practice provide clarity to the applicant and agent and that they enable the planning authority to make clear decisions without doubt or ambiguity. The concerns expressed by Leitrim County Council regarding the current code is that it appears to offer no practical option for the treatment of effluent where the soil T value is greater than 90. Most sites conditions in Leitrim have T values greater than 90. The ECJ finding that Ireland was in breach of its obligations under Articles 4 and 8 of the waste directive noted that Cavan County Council was a notable exception as it had introduced by-laws to deal with single house treatment systems. These by-laws aimed to bring about adequate standards of treatment together with ongoing maintenance to improve consistency and standards over time. This is the concern of the ECJ and is also the concern of Leitrim County Council, as we put in place natural, robust and low risk systems.

With a population of just over 29,000 and a population density of 12 persons per sq. km, Leitrim has a predominantly rural structure. Two thirds of the population are located in areas without sewers. Approximately 6,000 of these rural houses operate with septic tanks and percolation areas and 2,000 operate on proprietary systems as specified in the EPA manual.

Leitrim County Council has already taken steps to address the potential environmental impact of development on rural areas through the county development plan. A certain level of rural development continues to be essential in Leitrim to provide continued viability and sustainability for a predominantly rural community. In 2003 we increased the minimum site size for a single rural house in an unserviced area by 50%, from 0.2 hectares to 0.3 hectares. In 2008 we designed a standard treatment system comprising a septic tank followed by a reed bed and willow bed treatment system, which we have since advocated and promoted to architects and site assessors as an acceptable solution where site conditions are difficult. The design standard caters for an eight person household, notwithstanding the fact that the average occupancy rate in County Leitrim is 2.66 persons.

We have granted planning permission for a number of applications in recent years where such systems were conditioned to be installed. Some of the sites in question had recorded T tests of greater than 90 but we provided guidance on design and entered into pilot monitoring arrangements with the applicants and some of the houses are now built and occupied. We have carried out one round of assessment on 12 of the units and the results were excellent, including on sites which recorded T tests in excess of 90.

These treatment systems are reliable and constant and require a level of maintenance which may easily be carried out by the householder. They also suit intermittent loadings such as those from holiday homes. The treatment is independent of soil condition and affords maximum protection to ground and surface waters. It is our intention to introduce by-laws to include a register of contractors who could carry out regular desludging of the systems. To this end, sludge reception facilities are being provided at a number of town sewage treatment plants currently under construction under our water services investment programme. These will be in a position to receive sludge early next year.

Part 1 of the EPA code of practice refers to the possible use of innovative products and technologies not specifically covered. This indicates that alternative means, such as those I have outlined, would be open for consideration. I draw members' attention to the last paragraph of the preface of the code, which states that the code will be subject to ongoing review. Some engineering solutions are being suggested and we appreciate the EPA's stated willingness to allow Leitrim County Council to accept the installation of some newer systems on permitted sites where the T test readings are lower than 90 and can be monitored on a pilot basis. It is hoped this will enable the systems to be used on sites with T tests of greater than 90 if they prove to be successful.

Leitrim County Council would like to explore further with the EPA the option for the initial results of the monitoring of pilot sites in County Leitrim to be taken into consideration and for the monitoring to be continued, in conjunction with the EPA. Leitrim County Council welcomes an opportunity to work with the Department of the Environment, Heritage and Local Government and the EPA on proposals which would allow the use of willow systems to eliminate all discharges of effluent through evaporation when the willow is in leaf, corresponding with periods when dilution in streams is low. In winter time, dilution volumes are more than adequate to deal safely with effluent which has been treated and attenuated using reed and willow systems.

I thank the Chairman for affording us the opportunity to address the joint committee.

Chairman

I thank Ms Maguire for a very comprehensive statement. I now invite Mr. Seán Maher from Biotech to give a presentation.

Mr. Seán Maher

I thank the joint committee for allowing us to attend. It is a great privilege for us. I also thank my fellow county and town man, councillor Mr. John McCartin, for facilitating the meeting.

I am not here to sell anything but will try to give facts. Winston Churchill said that for every problem there is a solution. One might also ask: "If there is a solution to the problem, where is the problem?" By the time I have finished, I hope members will understand my confusion over why this is not being allowed.

I will give a brief outline of Biotech. We have worked for ten years to develop the system to its present stage. We thought the Government was setting standards to meet the new environmental guidelines coming from Europe. Our system has received EN certification from Germany. It has passed the certification stages and the system is 99.9% efficient on a consistent basis. Our testing board does a great deal of work in America and our system surpassed the top standard there, which is TS 245, qualifying us for a re-use programme. By the end of this year we will be the only company in the United States to re-use water in houses because the discharge from the tank will not be treated as a waste. Instead it is grey water, meaning it does not matter where it goes.

We were recently in Canada with Senator Camillus Glynn, who experienced at first hand the openness with which the Canadian authorities accepted our system as clean and environmentally friendly. On Friday I was in the United States with our president, Mr. Tadhg Linehan. We signed a contract in the presence of our President Mary McAleese, the Minister for Community, Equality and Gaeltacht Affairs, Deputy Pat Carey, and Mr. Niall Burgess, our consul general. The contract will be worth in the region of €300 million over the next three years and was specifically won on the basis of the quality of our discharge. Next week we go to Australia, whose Government wants to take our systems because they also have a problem with water and they want to use it for re-use because of its quality. After that we go to China and after that to New Zealand.

The only difference between Ireland and other countries is that we have failed to set standards. The EPA seems to know what it does not want. It should be very easy for it to put a standard in place telling us what it wants, so that every company that can meet the standard will do so. In that case it will not matter where the discharge from the system goes. Hydraulic solutions and problems with water that will not be absorbed were mentioned. We have solutions to that because we come across the same problems in the United States. We made representations to the EPA last year, not that it did us a great deal of good. We also spoke to the Minister for the Environment, Heritage and Local Government, Deputy Gormley, and we thought we were getting somewhere. However, we were wrong and our case did not fall on good ears. I do not know what the problem is because we have the solutions, which are accepted in every other place in the world.

Leitrim County Council is probably the only government body that is prepared to listen but it is unfair of the EPA to put the onus on to a county council by saying it will be on the council's head if it licenses discharge. Biotech is prepared to stand over every system it puts in place, and the related discharges, for the system's entire life. We carry out maintenance every three months and take a sample of the water. We have it tested and send a copy of the test results to the local authority and the EPA. We keep a copy and give one copy to the householder. If there is a problem with the system the householder comes back to us. We take the process from manufacture through to installation.

Chairman

It is obligatory to have a maintenance contract.

Mr. Seán Maher

Absolutely. The maintenance contract is €300 per year, payable in whatever way a customer wants. For that fee, we carry out the testing and the maintenance to ensure the system does not break down, even though there are back-up systems. Every site is different, even within a county, and we design a solution for each site. We have holding tanks into which we discharge the water at a slow rate, overnight, by drip feed, irrigation or some other way. It is clean water and should not be treated as waste.

Chairman

I thank Mr. Maher for his very clear statement and wish him well with his company. I compliment him on the worldwide recognition of the company and its accreditation in the T tests.

Ms Marian Harkin, MEP

Does Mr. Maher's system work when the T value is greater than 90?

Mr. Seán Maher

Of course it works. If one releases water that is not regarded as waste but grey water, it does not matter where it goes. We can reduce the volume and we should have building regulations that require us to re-use water. Double-plumbing of houses would mean that when we flushed water down the toilet it would not have been paid for as drinking water. In that case one would reduce the discharge by at least 50%.

Ms Marian Harkin, MEP

I wanted to clarify that before I asked my main questions.

Chairman

We are under huge time pressure so I ask Ms Harkin to be brief.

Ms Marian Harkin, MEP

Mr. Maher said if there was a problem there would be a solution. However, the problem here is one to which there cannot be a solution. The EPA has said that, once the T value is greater than 90, the parameters do not allow a solution and planning permission cannot be granted. Even though Biotech may have a solution it cannot use it. That makes no sense to me. Unfortunately, our colleagues from the EPA are no longer present to respond but I am sure we will get a reply at some point.

Chairman

I have no doubt that following this meeting the Department will respond in writing to the questions raised. We will also follow up with a summary report.

Ms Marian Harkin, MEP

We need a response on this.

Chairman

That is why the Department officials are in attendance. They have indicated they will respond in writing.

Ms Marian Harkin, MEP

Good, because Ms Maguire, the county manager, has stated that her concern was that there was no practical option for the treatment of effluent for T-values greater than 90. However, we know there is, although according to the EPA there is not. This is the core of the problem. We could talk for hours on this, but the core of the problem is that there is a solution, but because of how the problem is articulated, the solution is not applicable. This is nonsense. I would like a response with regard to whether we can have mechanical or other solutions.

Chairman

Credible discharge systems.

Senator Terry Leyden

I welcome Ms Jackie Maguire, Mr. Brian Kenny, Mr. Martin Dolan, Mr. Tadhg Linehan and Mr. Seán Maher and thank Leitrim County Council members for coming here at very short notice. I am interested to hear the cost of the particular biotech system. We have had good dialogue here and I hope the EPA and the Department will be open-minded towards the suggestions made, particularly with regard to negotiations with Leitrim County Council because Leitrim is particularly affected by the regulation. We must all work together to produce a system that will work. I was very impressed by Mr. Kenny's presentation when we met the council with the EPA with regard to what is happening in Leitrim. I appeal to the Leitrim county manager and staff to proceed with granting planning applications. Whatever solution is arrived at, we cannot deprive rural Ireland of people. That is the bottom line. If all the groups are open-minded and work together, we can find a solution. I would prefer dialogue to confrontation.

Chairman

It is all about dialogue. Dialogue will follow from this meeting.

Senator Terry Leyden

I agree. I am interested in the whole debate and have found it worthwhile. I hope all the groups will come together and come up with a solution.

Chairman

The EPA and the Department have been very helpful. I recognise the critical role the EPA has to play. It does an outstanding job and is very much pro development. If we get agreement in principle, it will try to progress it.

Senator Terry Leyden

Councillors John McTernan and John McCartin are here and I must commend the dialogue between the elected members and officials in Leitrim. It is very much a combined effort there.

Deputy Eamon Scanlon

I thank the county manager, Ms Jackie Maguire for her presentation and Mr. Maher. Mr. Kenny gave a very positive explanation of the situation at our previous meeting. I would like to hear his views on the treatment system mentioned. All we want to do is to find a solution to this difficult situation.

Chairman

We will log all the questions and then take the replies. Mr. Kenny should take note that we would like clarification on what Mr. Maher said as that is important.

Senator Paschal Mooney

I echo what has been said. I also compliment the Chairman on this initiative. I thank Ms Jackie Maguire and the members of Leitrim County Council for attending. Despite what Ms Marian Harkin has said, my understanding is that following the meeting between the EPA and Leitrim County Council, a clarification was made that even if a T-value was 90 and the application failed the test, the EPA was prepared to accept alternative arrangements. Its bottom line was that the water should not be left on the surface, but should be discharged. May I have clarification on that? With regard to the code of conduct being operated, will Leitrim County Council accept it was very strict in its interpretation, from January until that meeting, with regard to what it believed was required by the EPA?

Senator Paddy Burke

I welcome the delegations and found their presentations very interesting. I have a question for Mr. Maher on existing septic tanks. He said that each site and tank was different and mentioned an annual maintenance charge of approximately €300. I presume that is per unit. Can Mr. Maher's system be fitted into existing septic tanks? Can they be retrofitted? He also said the only agency with which he was working was Leitrim County Council. Does he operate with any other local authority? He mentioned that he also operated in America, China and New Zealand. Has he done any work in other European states or Northern Ireland or England?

Deputy Timmy Dooley

Will the EPA respond to or comment on Mr. Maher's presentations?

Chairman

We will not engage with the EPA now.

Deputy Timmy Dooley

I do not expect a response now, but perhaps we can have a comment in writing.

Chairman

We will have a report from the EPA and the Department. I hope they will consult this company on the possibilities and that we will have tangible documentation from them before the regulation is brought in by primary legislation. I hope we get a common sense response. I will come to Mr. Kenny now for a response to Deputy Scanlon's question.

Mr. Brian Kenny

Leitrim County Council is on the same side of the fence as the EPA and the Department of the Environment, Heritage and Local Government. We see ourselves as the primary guardians of the environment in Leitrim. However, we are also the planning authority and it is the balancing act between the two we must get right. In the past, we have looked at natural systems and have used them at single house level and in small village sewage treatment systems. We have also used them for licensed industry where industry in rural areas discharges to surface water. We have found that where we have used these natural systems, the results of the analysis carried out on the effluent has been extremely consistent. Regardless of whether a house is occupied during the week or whether there is a full load at weekends on the treatment systems, we find the natural systems — reed and willow beds — provide consistent treatment.

By extending the scale of these systems, we can cater for future demand in rural areas. We accept that we have difficulty in rural areas. We see deterioration of water quality and in recent years we have a proliferation of septic tanks. That is a legacy issue and we can deal with it by retrofitting systems like those mentioned here or natural systems such as reed and willow beds, depending on the use being made of the system. Our difficulty with the code of practice is that there is no provision for a situation where T-values are greater than 90. There is a blanket ban. That is not workable in the long term and there must be some solution. The difficulty, as Ms Marian Harkin, MEP, said, is that no matter how good the solution is, we cannot entertain it because of the way the code is written. If there is a discharge, it requires a discharge licence. Discharge licences are impractical on the scale we are talking about, where we are talking about large numbers of small systems.

Chairman

Perhaps we will be able to get clarification on that for the council. We expect to get more written information on that issue. I hope that within a week our secretariat will have received more definitive information on outstanding questions which have not been dealt with today. The secretariat will follow through on the questions put today and I hope we will have some further understanding of the guidelines from the EPA with regard to the interpretational difference in question. I have heard Mr. Kenny's presentation and understand he is between a rock and a hard place with regard to the defining code of practice. However, there must be some interpretational difference in that regard also.

We are under pressure here and I am conscious of the time, but does Mr. Kenny want to make any other comment to allay concerns?

Mr. Brian Kenny

With regard to the alternative system being proposed, we have met the promoters and are considering using that system in areas where the T-value is less than 90.

Chairman

Senator Mooney made an important point on which he would like a response. Will Mr. Kenny address that issue?

Senator Paschal Mooney

Mr. Kenny confirmed what Ms Marian Harkin, MEP, stated. As a result of the meeting involving officials from the EPA, I obtained the impression that a level of flexibility would be allowed as long as the water was discharged somewhere. It was even suggested that the wording in the original code could have been framed differently. I also inferred from what was said at the meeting that the code is being strictly interpreted in a certain way.

Unfortunately, it is not possible to oblige the representatives of the EPA to return and indicate whether this is the position. However, following the meeting to which I refer, I was of the view that they were prepared to accept a level of flexibility, even in excess of the T90 values. It is very important to establish that there would be larger sites, extended sites and some way of——

Chairman

I would prefer if we could obtain a direct answer to a direct question. The secretariat will deal with the outstanding issues that are pertinent to this case. We can get an answer to the question you have asked on seeking clarification.

Senator Paschal Mooney

Otherwise, based on what Mr. Kenny has stated, progress will not be made and a solution will not be found.

Chairman

Does Mr. Dolan wish to comment on that point?

Mr. Martin Dolan

At the meeting with the EPA to which Senator Mooney refers, clarification was provided to the effect that alternative solutions exist. The question arises as to whether such solutions are workable in County Leitrim. As the manager, Ms Maguire, pointed out in our presentation, the lack of receiving waters in the county is probably one of bigger factors that comes into play. While solutions exist, they are not practical for use in most parts of County Leitrim.

Our policy has not changed because we are obliged to change with the guidelines that are in place. We are as strict in respect of their enforcement now as we were in the past. We are merely complying with the policy.

Ms Jackie Maguire

The EPA and the Department are willing to work with us in the context of developing the pilot projects that are already up and running in County Leitrim in order that the issues which may arise in certain cases might be dealt with.

Deputy Eamon Scanlon

Is it the case that Leitrim County Council cannot accept a planning application if the T-value exceeds 90.

Mr. Martin Dolan

We can accept such applications. However, they must be processed.

Chairman

The application can be accepted but it cannot be granted.

Mr. Martin Dolan

If the applicant is in a position to provide a discharge licence which indicates that the level of receiving waters is sufficient and if he or she can satisfy us that the discharge can be treated in a proper manner, then we can grant the application. However, practical difficulties — such as whether the receiving waters are of sufficient quality and quantity in order that the discharge can be treated in a proper manner and at a reasonable cost — will always arise. If the T-value is over 90, that is the only situation we can deal with at this stage.

Senator Paschal Mooney

In effect, this means that the water, regardless of its quality, remains on the surface and does not run off. If there is no stream or river nearby, it will not go anywhere.

Mr. Martin Dolan

If an applicant is in a position to identify receiving waters which we are satisfied will meet the needs of the system, we can grant his or her application. In most instances, such waters are not available in County Leitrim.

Senator Paschal Mooney

Is it then the case that the option put forward by Biotech does not solve the problem? I did not inquire with regard to what happens to the water which Biotech's system purifies. The bottom line relates to where the water goes.

Ms Marian Harkin, MEP

As far as I am concerned, the issue should relate to the quality of the water and not to where it goes. Biotech's system provides reusable water.

Chairman

The secretariat will work with Leitrim County Council, Biotech, the EPA and the Department in respect of this matter. It would be important if the EPA and the Department provided a definitive viewpoint in respect of the questions raised at this meeting. Clarification is required in respect of the remit of Leitrim County Council going forward. Further information is also necessary in respect of the degree to which the code of practice has been enshrined and whether any discretion exists for the EPA to taken action, on an interim basis, in respect of a verifiable system of treatment.

The secretariat will prepare a briefing summary in respect of these proceedings later today. We will then obtain a detailed reply from the Department and the EPA. We will also take submissions from the county council on its concerns. We will prepare a summary report on the matter in the next ten days so that a definitive indication of the current position might be outlined.

I thank Ms Maguire, Mr. Kenny, Mr. Dolan, Mr. Linehan and Mr. Maher for attending. We had a good exchange of views and information. Our next meeting is due to be held on Tuesday, 8 June, but in view of the fact that the Dáil will be in recess that week, it is proposed that the committee should meet on 16 June.

Mr. Seán Maher

I wish to raise one point before the meeting concludes. The only difficulty is that, under the terms of the waste directive, the EPA currently treats all discharges from septic systems as waste. There is a point at the top-end of our system where the material is transformed from a waste product to grey water. The EPA needs to put in place a system whereby if discharge reaches a certain standard it must be treated as grey water. This would solve all of the problems relating to T-values.

Chairman

I hope Mr. Lynott will take note of Mr. Maher's point in respect of grey water.

Senator Paddy Burke

Does Biotech do any business in Northern Ireland?

Mr. Seán Maher

We already have more than 6,000 tanks in place in Ireland. We are working in Spain at present.

Chairman

The EPA will issue a reply in respect of Mr. Maher's point relating to grey water. As already stated, the committee will produce a summary report within ten days. Even though a final resolution has not been arrived at, progress has been made. The EPA and the Department will provide further clarification on the matter.

The joint committee adjourned at 2 p.m. until Tuesday, 15 June 2010.