Air Pollution Bill, 1986: Committee Stage (Resumed).

Government Amendment No. 16:
In page 16, line 17, to delete "The Minister", and to substitute "For the purpose of preventing or limiting air pollution, the Minister".

May I just say in reference to our discussion here last night that in the immediacy of our exchanges on section 14, the section dealing with powers of authorised persons, I referred to powers of entry under a number of related codes of legislation. I am afraid that I may have confused the position under the Planning Acts, 1963, the Water Pollution Act, 1977, and the Public Health Acts, altogether as it were. I would now like to set the record straight, in case I inadvertently confused any of the Senators on this. The Planning Acts allow entry by an authorised person on land — and this includes houses and all other structures — in two ways. The first is without any notice, and this is what we were referring to, but is subject to the consent of the occupier. I want to make that quite clear in case I gave the impression it would be otherwise. Secondly, where consent is refused it is subject to 14 days' notice. What we were talking about in relation to other codes of legislation stands, but under the Planning Acts that is the de facto situation.

These provisions reflect the generally more static nature of the controls, structures and so forth operated under the Planning Acts. As we stated last night, the Public Health Acts, for the purpose of examining as to the existence of nuisance, allow entry on all premises without notice. So does the Water Pollution Act, 1977, in the context of urgent action to abate water pollution. Lest I inadvertently misled any Senator — we had so many exchanges and went back and forth on so many sections — I just want to make that quite clear.

In regard to amendment No. 16, this amendment inserts a preamble already contained in section 23 of this Bill. Section 10 of the Local Government Sanitary Services Act, 1962, which this section, effectively replaces, contains a similar although differently worded preamble. This amendment relates section 25 more definitely to the general purpose of the Bill, that is, to control air pollution.

Amendment agreed to.
Question proposed: "That section 25, as amended, stand part of the Bill."

Section 25(2)(e) states that regulations may:

prohibit or restrict, subject to such exceptions as may be specified, the burning of straw, waste or any other substance at such premises or at such times as may be specified.

This is with regard to regulations which the Minister may make prohibiting or restricting the emission into the atmosphere of smoke from any premises. The definition of "premises" is given on page 8, section 7:

"premises" includes any messuage, building, structure or land (Whether or not there are structures on the land or whether or not the land is covered with water) or any hereditament of any tenure, together with any out-buildings and curtilage;"

I am not clear exactly what is prohibited in this area. On its face value it seems that farmers will be prevented from burning straw on their land because premises includes land, according to the definition in the Act. Also I am aware that in the recent past, when the increase in oil prices became acute, there were heating systems installed which used straw. I do not think there are very many of them, if there are any at all at present. I have no information with regard to that. The burning of straw does create a certain amount of smoke and I do know that in the travel books of previous centuries Arthur Young and other authors referred to the "pernicious practice" of burning straw. Again I am not clear whether it was burned on the land or burned in the houses; but that at that time, when most of the houses were thatched, it would have seemed to be rather dangerous to burn straw in the house. Nevertheless, it was a common practice. In regard to the burning of straw in a central heating furnace, I feel we should have control under the terms of the Bill. However, in regard to farming in an agricultural country, and I do not think the practice is very widespread — in reality straw is only burned in cases where the cost of harvesting the straw is less than the remuneration to be got from the sale of the straw. I feel this section would place a very severe restriction on farmers, and under the terms of this section I feel also that a local authority will not have the power to alter the regulations to allow, for example, the burning of straw in a particular situation. Therefore, we should think again about that. The burning of straw on land in a rural setting is not like the situation we have in a built-up area. Having regard to all the factors perhaps the Minister would look again at this section.

I am aware that on Second Stage some Senators were concerned about this section. I recall I addressed the matter somewhat at that time in my reply to Second Stage and I would like to assure Senator Fitzsimons that we appreciate the growing practice among farmers particularly on the eastern seaboard who are burning straw — burning stubble as well has been a long practice in this country. We do not intend any blanket prohibition on the burning of straw. I draw attention to section 25 (1) which states that the Minister "may", not "shall". The reason for an enabling section here is to have control in the future, if needs be, if this should grow into a problem. Straw burning is an increasing feature of modern agricultural practice and while it may not, as yet, have any deleterious effect of any consequence, a power to regulate is considered desirable by the Minister. We do not expect to have any difficulties with farmers in once off situations who just want to burn stubble or straw. It is only in case there is a continuing nuisance created on a regular basis. I refer Senators to section 4 — effectively creating air pollution. The burning of straw would have to be to such an extent as to be liable to:

(i) be injurious to public health, or

(ii) have a deleterious effect on flora or fauna or damage property, or

(iii) impair or interfere with amenities or with the environment.

They would be the only occasions on which the Minister might invoke this section. It is not to deal with a nuisance or to irritate the once off situation that arises in farms from time to time. That is not intended. The farmer would have to be causing air pollution under one or all of those criteria that we discussed here yesterday afternoon.

Also there is the possibility that a person, a farmer or whoever, would for whatever reason burn large quantities of straw at somebody's boundary wall, or cause a nuisance in the neighbourhood in that sense. We would like to be in a position to be able to control that. That would be the exception where there may be less than good relationships between neighbours. We feel that an enabling section is necessary for the future so that, if necessary, we can come in and control a very acceptable practice if it happened to get out of hand and cause pollution. We are trying to protect the environment, to protect human health and not to irritate any section. It is in all our best interests, including the farmer, that we have this provision.

In relation to the practice of using straw for central heating or solid fuel heating systems of any kind, that is not affected by the Bill. Effectively the burning of straw would be inside an oven or a container of some kind. Other sections of the Bill may apply in that case but it will not be affected in this section. I would like to put the Senator's mind at ease about that.

I appreciate what the Minister has said and I have no doubt that is the intention. I am not too sure whether the case might be taken out of the Minister's hands. For example, in section 28 an individual would have certain rights and powers. We know the problems that have arisen, for example, where there is a proliferation of houses in a rural area. In certain circumstances objections have been made to certain farming exercises. For example, houses have been erected in a rural environment and when a farmer set out to build a silage pit, objections have been lodged. This is wrong. In a primarily agricultural country the farmer should not be inhibited in that way. It appears from what the Minister said it could be suggested that with a vindictive motive the farmer would burn straw. That would be very exceptional. While it is in the Bill, there is the possibility that somebody in a rural setting might object to the burning of straw and then it would be taken out of the Minister's hands.

I refer the Senator to section 28 which applies to any instance of air pollution, not specifically to straw burning: "The High Court may, on the application of a local authority or any other person, by order, prohibit or restrict an emission from any premises where the court is satisfied that": (a), (b) and (c) are complied with. That is not specific to straw burning.

It does not exclude straw burning.

Neither should it exclude straw burning. It will be up to the court to decide whether it is a vexatious claim or motivated by anything less than honourable considerations. Third parties should be able to have some redress if they have genuine cause to complain in relation to this area. Already this is the situation under the Planning Acts and various other Acts. An Bord Pleanála, for example, have to consider whether appeals are vexatious or whether they are genuinely well grounded. It would be somewhat similar in this case.

I wish to assure Senator Fitzsimons that 99.9 per cent of straw burning by farmers is once off and causes absolutely no problem. It is a practice we are all accustomed to and I have no doubt it will continue. With this as an enabling section to ensure that if a problem should arise in the future that could be defined under section 4(i), (ii), and (iii), in other words the definition of air pollution, the Minister would be in a position to do something about it.

This is what this Bill is all about, to prevent air pollution and to prevent injury to human health and the environment. It is purely enabling. I do not see any threat to existing practices except in the very rare case where they may already be causing air pollution as so defined in section 4. I do not think any farmer or anybody involved in agriculture practices has anything to worry about in once off situations of burning straw or stubble. It is not intended to be in any way restricted to that category of person.

Question put and agreed to.
SECTION 26.

We have an amendment to section 26. Amendments Nos. 17 and 27 are similar and may be discussed together.

I move amendment No. 17:

In page 17, subsection (5), line 37, after "may" to insert "confirm,".

It appears to us that the section as it stands excludes confirmation with regard to this particular phrasing and that it would improve the section to amend it as we have suggested by including the word "confirm". Perhaps it would be better to have provision for an appeal to an independent body such as An Bord Pleanála rather than the Minister. We feel there should be provision for an appeal in any case.

I appreciate that these amendments seek to bring greater clarity to the procedures concerned, perhaps they are somewhat misconceived. The presumption in both sections is that the notice once made should stand but that there should be a period within which representations against the notice, or against some aspect of it, must be entertained by the local authority. Arising from these representations the local authority may then modify or revoke their notice in favour of the complainant concerned. If they decide that the notice should not be amended or revoked there is no need for the permit. The notice simply stands as originally served. I do not see what could be gained for the rights of any individual by accepting these amendments. There is no way in which the courts would uphold an enforcement action on a notice by a local authority in advance of a statutory period within which the public may seek annulment or modification of a notice. It follows that enforcement action will not arise until the possibility of any modification of a notice has lapsed.

Amendment, by leave, withdrawn.

I move amendment No. 18:

In page 17, between lines 37 and 38, to insert the following subsection:

"(6) Where any person feels aggrieved by the decision of the local authority under subsection (5), an appeal may be made to the Minister within a period of twenty-one days.”.

Surely it is wrong that a local authority with wide ranging powers can require the party to comply with the notice and the party has no appeal except back to the local authority. It should go back to An Bord Pleanála or the Court. I would like the Minister's comment on that.

Both these amendments oppose the idea of representations regarding notices being dealt with finally at local authority level. They seek to add a further procedure of appeal to the Minister for the Environment. I shall be defending the principle of appeal in relation to amendment No. 34 but in the case of the present two amendments a formal appeal system is not warranted.

Section 26 is virtually identical to section 12 of the Local Government (Water Pollution) Act, 1977, which has proved crucial to the whole operation of water pollution control. Hundreds of notices have been served under section 12 and we have not as far as I know had any serious representations that the absence of an appeal to the Minister for the Environment has resulted in injustice to the public. This is a well tried and practised procedure under the Local Government (Water Pollution) Act, 1977, and has proved crucial to the successful operation of this Act. What is certain, on the other hand, is that, if such a right of appeal existed, the speed and effectiveness of this provision would be blunted with the consequent reduction in its value as a measure for pollution control.

On section 44 we will be dealing with a situation where a special control area, carefully considered in the light of all objections at an oral hearing, will have been confirmed by the Minister for the Environment. The principle that certain types of control should apply to certain classes of property will also have been established in this way.

If after all of this we are then, as this amendment proposes, to allow each householder to convey individual objections beyond the local authority and to the Minister for the Environment, the administration of the control measures involved will be rendered inoperable. The implementing powers of the local authority would be seen to be weakened and there would be every encouragement for householders to object again to the principle of air pollution control measures already decided on in the context of the order.

Amendment, by leave, withdrawn.
Question proposed: "That section 26 stand part of the Bill."

Subsection (1) brings us back to a matter we discussed on section 18. Subsection (1) states:

Where it appears to a local authority that it is necessary so to do in order to prevent or to limit air pollution, the local authority may serve a notice under this section on the occupier of any premises from which there is an emission.

This should be modified as follows:

Where it appears necessary after detailed analysis and research to a local authority to prevent or to limit air pollution, the local authority may serve a notice under this section on the occupier of any premises from which there is an emission.

This is a very important matter. In an important area such as this, any steps taken should only be taken on the basis of a very thorough scientific survey. I do not think this is costly, and even if it is, it should still be carried out. The powers given to a local authority are very extensive. Before a decision is made by a local authority the actual situation should be set out and clarified to determine whether there is pollution and what steps need to be taken. If the scientific evidence suggests that steps should be taken, clearly under the terms of the Bill they should be taken. This power should not be given to a local authority where a scientific survey proves that there is no need to involve the powers given under this Bill.

This section empowers the local authority to serve a notice requiring the occupier of any premises to take such measures as the local authority consider necessary to prevent or limit air pollution. I am not in a position to accept the amendment as proposed by the Senator. The meanings are quite explicit. I must refer again to the definition of "air pollution" in section 4:

(i) be injurious to public health, or

(ii) have a deleterious effect on flora or fauna or damage property, or

(iii) impair or interfere with amenities or with the environment.

It would only be under one of those categories that such a notice would be issued by the local authority.

The Local Government (Water Pollution) Act, 1977, has similar powers which are well tried and practised and have proved to be very necessary in the successful operation of that Act. In the Senator's opinion that Act has not been successful. I disagree with that. There are some difficulties in certain areas of the country with it, but overall it has made a tremendous difference to what otherwise might have been in this very important area.

I ask the Minister to reply to my earlier question which I now repeat. Surely it is wrong that a local authority with wide ranging powers can require the party served with the notice to comply with the notice and such party has no appeal but except back to the local authority. We feel the appeal should be back to An Bord Pleanála or to the court. Does the Minister feel it is right that the appeal should go back to the local authority rather than to An Bord Pleanála or the court. Perhaps the Minister could define when a local authority is mentioned if that means the manager or the members.

It is the manager. I will answer the last point first.

So the members of the local authority have no say. It is the manager, the administrative section.

This is the issue we are talking about. It is the manager, as it is an executive function. I am satisfied with this provision. It is well tried and practised under the Local Government (Water Pollution) Act, 1977, and section 12 (1) states:

Where it appears to a local authority that it is necessary to do so in order to prevent or control pollution of waters, it may serve a notice in writing under this section on any person having the custody or control of any polluting matter on premises in its functional area.

This is an equivalent provision in this Bill. There could be once off instances of pollution. They could be serious or they need not be so serious. There could be ongoing instances of pollution, some continuous operation that is causing air pollution as defined under section 4 of this Bill. If we were to allow a procedure of appeal to An Bord Pleanála or any other party, we would be effectively saying that we would ignore the continuing pollution incident for another two or three months until the matter was resolved. I do not think that is satisfactory because of the very nature of the Bill we are dealing with and because there already is a well tried precedent in other control legislation, the Local Government (Water Pollution) Act, 1977.

Is the Minister satisfied when a notice is served that the person on whom the notice is served will not have an appeal except back to the local authority that served that notice. I think that is irregular. I feel that it should be back to an independent body such as the courts or An Bord Pleanála. The Minister made provision earlier whereby for a continuing offence there is a fine of £100 in one case, and of £1,000 in another. That is sufficient to cover the continuance of air pollution or any other pollution under the Act. An independent body such as An Bord Pleanála or the courts should be the deciding body on an appeal rather than the local authority, or the manager — in this case, it is back to the manager to decide. Surely the man who serves the notice is judge and jury over that particular case when it should be, in my view, an independent body.

With respect, I disagree with the Senator. If any citizen feels aggrieved under the whole area of natural justice he will have recourse to the courts. What is intended here is not licensing or anything else; it is purely the serving of an enforcement notice to ask the occupier, or the person concerned, to sort out the problem as it may be defined. It is long before we get to the courts when we talk about £100 a day or £1,000 a day as we were discussing yesterday. Hopefully, this would prevent the person concerned having to go in to the courts. As is our experience under the Local Government (Water Pollution) Act, 1977, normally action will be taken to rectify the problem, to rectify whatever happens to be causing the area of pollution. It could be in the interest of the person concerned that it be drawn to their attention that something is amiss in this area under section 4, as we define it. It gives them the opportunity to put their house or their premises as it were, in order. Indeed, I would expect it to prevent an enormous number of instances of pollution ever getting to court. This practice has worked very successfully under the Local Government (Water Pollution) Act, 1977. The type of problem we are dealing with does not allow us the luxury of two or three months system of appeal to whatever authority you suggest, because if we are serious about environmental protection we must sort out these problems fairly quickly. It is in the interest of everyone, including the person on whom this enforcement notice is served.

I am not satisfied that the Minister has answered adequately, if it all, the matter I raised with regard to scientific surveys. Having regard to the powers that local authority gets under this Act, and also having regard to the very punitive penalties, under no circumstances should a local authority proceed with regard to their powers under this Act except after a detailed scientific survey. I know that we dealt with that on section 18 and it will be coming up again. It is central to the Bill. It is of fundamental importance. The Minister should make some concession in this regard.

From a practical point of view, if an instance of pollution is looking at you in the face, a detailed scientific survey would be a further delaying tactic, with respect. They have not been deemed necessary in respect of instances of water pollution. A considered and informed judgment is necessary for the person concerned who is investigating the difficulty. I think that should suffice in this case. These instances of pollution could literally be once-off, although they could be extremely serious in their nature. But, if a scientific survey was undertaken, there could be enormous damage done to either human health or the environment in the area by the very delay that would cause.

May I point out again to the Senator that under the Local Government (Water Pollution) Act, 1977, even though it is not specifically provided for in that legislation, local authorities in practice send out advice letters pointing out the difficulty, or the area of problem, before enforcement notices are served? For example, in 1985 there were 2,360 investigations in the country under the Local Government (Water Pollution) Act, 1977. Subsequently advice letters were sent to 2,000 people — in other words, something was found amiss under that Act in 2,000 case. It was only necessary to follow that up with enforcement notices, which we are talking about now, in 374 of those 2,000 cases. In practice the local authority handles this very pragmatically and there is absolutely no unnecessary hassling of any individual in relation to that. It is in the local authority's interest, and it is in all our interests, that we get our environmental controls in place and properly operating. Two thousand advice letters, which are not provided for under that Act, were sent out advising people that something was amiss and in only 374 cases were enforcement notices necessary. Subsequently, only a very small number of that 374 — a handful or so; I do not have figures — had to end up in court when they did not answer the enforcement notice. This practice is well accepted by the public at large and is in the best interest of the common good.

There can be a difficulty here. Annual polluting of the air as a once-off operation was referred to earlier — the burning of straw or of stubble, particularly adjacent to built-up areas. In my area of county Dublin, where we have an enormous increase in population, we try to leave green belts and, as far as is possible, to keep them for agriculture; but it is becoming more and more difficult. That is a difficulty in the Dublin area and, I am sure, in Limerick and Cork also, where there is a large population concentrated. As a natural part of living, air pollution will increase. But a farmer, a landowner or a contractor who is carrying out an operation that has been carried out for centuries — the burning of the stubble before reploughing — can be the one at whom the finger will be pointed because he has put the level of pollution over what it should be; whereas others cause a certain amount of pollution throughout the year, but it does not rise above a level which would be worrying to a local authority.

I know the Minister will say that stubble burning is a once-off operation and that the time the notice takes effect the burning is over. That person can be warned that he is not to do it again; but the time will come 12 months later, when he will be required to do it again. There is a difficulty here for somebody carrying out such an operation. On the overall yearly average he does less polluting than anybody else in the area, but yet he is the person who will be blamed because at the time he does it he causes an enormous amount of pollution. This would not be noticed if it was in the Minister's county or Senator Fitzsimon's county, but when it is in my part of the country everybody notices it and I get a shower of complaints which I pass on to the local authority. Action is taken under the Planning Acts at present but now it will be taken under this Bill. I can see a difficulty here for agricultural operations adjacent to built-up areas.

The Minister should give some consideration to this. In other words, they will blame the person who now causes the pollution for two, three or four days, whereas there are other contributors to the high level of pollution and they are there all the time. It is the last straw, if the House will excuse the pun, that breaks the camel's back. In other words, the contractor is coming in to burn the straw and he will not be required to do it again for another 12 months. He is the person who will be blamed for polluting the air. Some such provision should be made. There may be other operations but that is the one I am thinking of because I have been concerned about it in my own area and it has already happened there.

I agree with Senator McMahon that there are different instances such as the once-off situation, the urban and the rural situation, but we are referring here to the power of a local authority to require measures to be taken to prevent or limit air pollution. Quite apart from the penalties involved, these measures could be quite costly in some instances. Without a scientific survey is the Minister saying, for example, that some official could just walk around, sniff and determine that certain measures are necessary? Surely there is some way of using scientific instruments to determine the pollution level and to monitor it over a period. Everybody agrees this will not be brought in overnight and, indeed, it will be done in stages. Surely what Senator McMahon has said underlines in a far more emphatic way than I have stated already the necessity for a scientific survey. In spite of what the Minister says, with regard to section 18, this section and subsequent sections which the basis of any steps taken by a local authority under this Bill must be related to a necessity which is shown through a scientific survey and monitored over a period to overcome the problem with regard to a once-off problem.

I do not rule out scientific surveys in all cases. There may be complicated and sophisticated incidents of pollution when they will be absolutely necessary. Sophisticated monitoring equipment will be needed to find out what our problem is and to determine base line activities and levels in certain areas and to be able to measure what the increase over that will be. If there is a pollution incident I do not think we should put it as a universal requirement in this section. I would imagine most pollution incidents were such that a well qualified or well informed judgment would be able to point them out, or indeed, point to the polluter if I use the correct term — or the potential polluter, the risks involved and thereby allow him to rectify the matter before it ever comes to an enforcement notice or to court. The procedure is well tried, as I have said, under the Local Government (Water Pollution) Act, 1977, and is extremely successful. It has prevented many of these smaller incidents from getting to court and has prevented many smaller incidents from becoming big incidents in relation to pollution and damage to our environment. Whether the incidence of pollution is small or big it must be possible to define it under section 4 of the Bill. I have mentioned those twice this morning and I refer the Senators to it.

On section 25 I dealt at some length with straw burning incidents and I assure Senator McMahon that we are not after the once off or annual burning of straw and stubble which is a well accepted and common practice, particularly on the east coast and in Ireland generally. It is becoming increasingly popular and it is only if there is a nuisance caused to such extent that effectively it is causing air pollution, as defined in section 4, that we are enabling the Minister to do something about it.

The word is "may", not "shall" in that section and we do not envisage it interfering at all with normal agricultural practice. Only when air pollution is caused by it would the once off burning of straw be considered injurious to public health or having a deleterious effect on flora or fauna or, indeed, damaging property. Nor would a once off incident of straw burning impair or interfere with amenities or with the environment — bar that it was done in central Dublin or in the centre of any of the other rural cities which it is not. That is not what is intended. It is an enabling section for the future, or should the situation arise that constant difficulty was being caused which could be defined as air pollution under section 4.

I accept most of what the Minister has said but I do not think she has a real grasp of the position particularly in the Dublin area. It may not happen in other areas in the country, but in the Dublin area at present the burning of stubble is causing pollution which, I believe, is well above the standard level. The person carrying out the burning, where it has been carried out for centuries, is the person who is going to suffer, whereas it is those who have come into the aea who have put the pollution above the standard level. It is really the newcomer who is getting away with it, for example factories or chimneys may be causing pollution. They naturally bring it up to a level where there is an enormous burst of pollution, as there will be with the burning of stubble.

If that is to continue on an annual basis, that operator will be warned that, if he does it again, he will be prosecuted. He will get away with it for one or two years. Even though it is of short duration, he will suffer despite the fact that he was there long before anybody thought we would have a Bill of this kind. He is the unfortunate person who is now being caught because somebody else has raised the pollution level. When he burns his straw annually I have no doubt he can be caught under this section, despite what the Minister says.

For the vast area of the country it does not matter. Nobody pays heed to the burning of straw. Sometimes it is a welcome sign that the harvest is over and many people are delighted to see the straw burning and many children gather to see it burning in fields. In County Dublin and surrounding areas it is a different matter now because of the serious pollution of the air. The Minister should give some consideration to those who have been operating for centuries and causing nobody any trouble. Now they will be accused of causing a serious health hazard simply because somebody else has raised the pollution level before the burning of the stubble. There is a serious problem no matter how we look at it.

I accept the Minister's assurances that it will not inhibit any farmer. Under a Bill of this kind if it could be proved scientifically that it is an important factor, it could be excluded. I do not want to labour the point but rather to get back to the question of a scientific survey.

I do not accept what the Minister says. As I understand it, a well intentioned official could determine what measures are necessary and whether there is a problem. We have An Foras Forbartha, the Institute for Industrial Research and Standards and all the university graduates who are qualified in this area. It is wrong that powers under this Act should be used except on the basis of a scientific survey. We have spoken about this and it seems the Minister still remains unconvinced. We have the alternative of putting down an amendment on Report Stage but having regard to the powers which are given to local authorities under this Bill and the very substantial penalties it is naive of the Minister to suggest that the responsibility for involving firms in very heavy costs under the provisions this Bill should be vested in somebody without any qualifications in this area.

The whole discussion on straw burning was dealt with under section 25, which has been agreed already. Senator McMahon seems to have forgotten that I am a Dubliner, born and bred indeed from agricultural stock in Dublin. Contrary to what he thinks, I do know the difficulties that can arise in this area.

The scene has changed since the Minister was here.

That is not so long ago. I seem to have spent just as much time in Dublin since I left as I have in the country, for different reasons. I do know exactly what are the problems. If you like, it is a general conflict of the urbanisation of the countryside, demographic moves, people moving from rural areas to Dublin. I might refer the Senator to section 26 (1), which states:

... the local authority may serve a notice under this section on the occupier of any premises from which there is an emission.

They cannot serve a notice if they think there will be an emission, or if they know there will be one next harvest or if there has been one. The once-off straw-burning is over in a couple of hours. As we all know, if it is dry, it burns very quickly. It can be rather nasty if one is in the immediate area. There has to be an actual emission for this notice to be served. One cannot be putting farmers on notice for next harvest or the previous harvest. It is unlikely that an official will be standing outside the fence waiting for them to light the match and then go in with the notice. In practice, unless there is a continuing air pollution problem from straw-burning, as could be defined under section 4 (i), (ii) and (iii), I do not see any well-tried and practised procedure of our agricultural community under threat, unless there is continuous air pollution and it is affecting human health or the environment on that basis. If it is, even if it discommodes a few, I am afraid we have to be serious about it. However, I do not think it will affect those about whom concern was expressed here today.

I have already given my views on scientific research and qualified people to which Senator Fitzsimons referred. If the Senator looks at the Water Pollution Act, he will see that there were 2,360 investigations. If before we investigated it or served enforcement notices, we had to have 2,360 scientific surveys, there would be very little done in relation to controlling environmental pollution or air pollution. I do not think it is justified. However, I do not rule it out. There will be complicated cases where we will have to have such a procedure. But I do not accept that we need a universal provision for it in all cases.

Question put and agreed to.
SECTION 27.
Question proposed: "That section 27 stand part of the Bill."

Section 27 (2) states:

(2) Where a local authority take steps, carry out operations or give assistance under this section, the local authority may recover the costs of such steps, operations or assistance as a simple contract debt in a court of competent jurisdiction from such person as the local authority satisfy the court is the person whose act or omission necessitated such steps, operations or assistance.

I assume that, in this instance, the local authority will have the option of not attempting to recover the costs. In other words, in every instance, a local authority would not insist or feel it was proper to recover the costs?

This section enables local authorities to take steps to prevent or limit air pollution in cases of urgency. A similar power is contained in section 13 of the Water Pollution Act, 1977. Environmental type legislation is well tried and practised in that respect.

Subsection (2) enables a local authority to recover the costs incurred by them in taking measures under this section as a simple contract debt in a court of competent jurisdiction from such person as they satisfy the court is the person whose act or omission necessitated the measures. I might draw the Houses' attention to the relevant portion of this subsection: "the local authority may recover"; it is not "shall" recover. Therefore, there is discretion left there.

I am glad to know that that option obtains because in certain circumstances I could envisage a scenario in which the carrying out of those urgent measures would be very costly, one which some firms might be unable to finance. In certain circumstances this might be the breaking point for some firms. My understanding is that in taking such urgent measures a local authority would not be constrained by costs. The implementation of the necessary measures might be a very costly operation. Perhaps a firm, given the option, would close down rather than get involved in such costs. It appears to me here that a particular firm might not have that option, that the work would be carried out by the local authority and the firm would be responsible for payment.

In the case of rescue operations by local authority fire fighting services, where the person concerned has to pay the costs, the amount can be sizeable. I am thinking of rescue operations for animals, or cases of flooding where the fire brigade have to come to people's assistance. In these cases the costs can be sizeable. Therefore, I could foresee a much greater costs involved in the event of a local authority taking the necessary steps to prevent pollution. I welcome the use of the word "may". That would leave it to the discretion of the county manager to implement or to bring a person to the court for identification as the person responsible for the costs. Therefore, I welcome that safety valve.

Question put and agreed to.
SECTION 28.
Question proposed: "That section 28 stand part of the Bill."

This section deals with a situation in which there is an appeal lodged with the High Court. We have already dealt with the problem in Moneypoint. Under this section any person — and since we are a member of the European Community it does not necessarily mean an Irish person — could make application, as is stated under subsection (1), which reads:

The High Court may, on the application of a local authority or any other person, by order, prohibit or restrict an emission from any premises where the Court is satisfied that —

For example, with regard to Moneypoint, somebody somewhere could feel aggrieved about acid rain which they might feel was caused by the plant at Moneypoint. Would the Minister indicate if such a person could apply to the High Court to have certain refinements carried out to Moneypoint? If so, I could envisage a court deciding in favour of such an application.

I can put the Senator's mind at ease immediately. The EC are concerned, but they will take their action only with the Government of another country, not with any section lower than central Government. Their action would be taken through the European Court, not a local court of the land. We are referring here to our High Court, within our jurisdiction. The EC will not come into our High Court and take action against anyone. They will only take action against a sovereign Government in the European Court.

I am not relating it specifically to the EC in that sense. What I am saying is, as we are a member of the EC "any other person", not necessarily an Irish person, could appeal. The question I am asking then is — we are all conscious of this transboundary pollution in relation to Moneypoint — whether somebody on the Continent, for example, within the EC, could make this application. In any event, if an Irish person applied is the situation with regard to Moneypoint that, under the provisions of this section, an application could be made to the High Court to have certain refinements carried out? I am thinking, for example, of the emission of sulphur dioxide and having the flue refinements that were spoken about yesterday carried out — a rather costly operation. Is there the potential under the provisions of the Bill for a court order to be granted to compel those refinements to be carried out at Moneypoint?

Yes, the potential is there in the Bill. One need not be a member of the EC. It could be a resident of Kilrush who could take an action. But they would have a very heavy burden of proof, as outlined here under subsection (1) (a), (b) and (c). They would have to satisfy the court under those provisions. In theory the potential is there. If a resident of Kilrush — to take a hypothetical situation — won their case we would be into a situation of retrofitting Moneypoint.

As I understand it, this is a power that does not exist at present. A person might have the right but certainly would not have the power given in this section. Scientific proof could be easily provided to show that there is this emission from Moneypoint. In representations made to us the problem is well documented. Therefore, it seems that the provisions of this section could have serious repercussions for Moneypoint or, indeed, for any other plant. For example, some single individual could urbanise scientific research with regard to a particular premises. If that person was able to satisfy the High Court that there was a problem of an emission, I could foresee the High Court opting in favour of that application. From what the Minister has said, that is my understanding. Therefore the provisions of this section are very powerful. I will not say it is an extraordinary power because perhaps some similar power is given elsewhere. I am thinking specifically of Moneypoint and the problem arising from emissions there.

Having regard to all the representations made to us by concerned groups and individuals it appears to me that, when this Bill becomes law, action will be taken in the High Court to compel the ESB to provide scrubbers or refinements to the flues in Moneypoint in order to overcome the problem of emission of sulphur dioxide.

I draw the Senator's attention to subsection (1) (a), which states:

the continuance of the emission (not being an emission which is in compliance with the licence granted under this Act) would give rise to a serious risk of air pollution, or —

I should say the position about Moneypoint and I understand the Leas-Chathaoirleach's concern lest we would inadvertently cause alarm down in her part of the world is that Moneypoint is operating under planning permission granted in 1979 to which strict conditions were attached. In passing I might say there was no appeal by any third party to An Bord Pleanála on any of the conditions in the granting of the planning permission to Moneypoint. If, as the position now stands, with Moneypoint or any other similar plant, a third party, an individual, felt it was not complying strictly with the conditions as laid down in the planning permission, there exists already the mechanism under the Planning Acts whereby any third party can take it to the High Court. It is not new — it already exists under the Planning Act — if people feel that the conditions are not being complied with and feel their case will stand up in court. Vexatious cases will not stand up in court and will be extremely costly to take. The system has worked very well under the Planning Acts. There is no reason to feel it will not work well in these circumstances also.

Subsection (4) states:

An order of the High Court made pursuant to this section shall have effect notwithstanding the terms of any permission given under any other enactment in relation to the premises concerned.

It is clearly stated here that any permission given would be of no material consequence with regard to a High Court action.

If action was taken under section 28 it would override planning permissions granted. The Senator asked previously whether there was a precedent, or whether this existed before, that a third party could appeal to the High Court. It already exists under the Planning Acts, as they now stand, apart at all from pollution incidents. That procedure is already well-tried and practised in our courts, and in the High Court. The Senator is correct; if action is taken under this section for a pollution incident it will override any planning conditions involved in a particular plant.

In relation to the Planning Acts I understand that this refers to planning applications where a third party would have a right to object. We are not talking here in terms of a planning application. This project has been completed. Therefore, there would be no provision now to object under the planning legislation.

The situation is not quite as outlined by the Senator. It is not just at planning application stage that the third party can appeal under the Planning Acts. If when planning permission is being granted — and one has a premises or a plant up and running — a third party for any reason feel it is not being operated in compliance with the conditions laid down in the granting of the planning application they have the power even afterwards to —

That does not arise in this case.

It can arise in this case, in Moneypoint, for example.

I do not think anybody would necessarily object to this being done any other way than in accordance with the planning permission. It is just that the people who would object to the whole process of planning permission.

No, planning conditions can cause as much annoyance. Lack of compliance with the planning conditions can cause as much annoyance. There is an instance in my own county at the present where a caravan park was granted permission with certain conditions — trees, this and that — and, five years later, the owner has not complied with planting the trees and doing this, that and the other. Residents of the area have taken them to court. That is quite a common procedure, just to give the Senator an example.

I accept that if there is a condition attached to a planning permission, of course that must be complied with. I am not saying the conditions applicable to Moneypoint are not being complied with; that does not arise. I am not saying there is a case under the Planning Act for objection that these conditions are not being complied with. I take it for granted that they are being complied with. There are many people who object to the whole situation even though the conditions are being complied with. That does not arise here.

They can take action under section 28 (1) (a) if they can prove serious risk by pollution. It is up to them to prove that it is giving rise to serious risk of air pollution.

What I am saying is that this section gives great power to an individual.

If they can prove it, it does, yes.

With regard to Moneypoint or any other similar plant?

Yes, if the High Court feel they have a case.

That is not a power they had heretofore.

They did not have the power under air pollution before but they have had similar powers under different types of environmental controls.

Yes. We are dealing with an emission and they did not have that power before. They are being given this very strong power to wield now.

A similar power that already exists in other environmental controls and legislation. We are giving a similar power under the Air Pollution Bill.

The Minister says "similar". It is not realistic to compare planning legislation and water pollution with air pollution. It is not possible to draw a direct comparison. I take the example of Moneypoint because this has been the focus of representations made to all of us by many people who are concerned. It seems to me that the provisions of this section give great power to individuals with regard to an emission they did not have heretofore — power which, if they are successful in an application to the High Court, could involve very costly operations on the part of any concern.

Question put and agreed to.
SECTION 29.
Question proposed: "That section 29 stand part of the Bill."

Is it obligatory on the occupiers of a premises to notify a local authority of an incident? If there was any doubt about an emission having occurred and there was a concealment of that occurrence from the local authority will a case arise in which the occupant of the premises will be prosecuted or what is the position? If it is not obligatory then it is not worth inclusion in the Bill. But if one is obliged to notify and does not, does a case arise under which one can be prosecuted for concealment of an emission?

Yes, there is an obligation to notify, as soon as practicable, any instance which may cause air pollution. I might refer the Senator to section 11, which we agreed yesterday, where a person will be prosecuted. It is an offence not to comply with the provisions of section 29.

Question put and agreed to.
SECTION 30.

I move amendment No. 19:

In page 19, subsection (2), line 11, after "plant" to add "except where planning permission had previously been obtained."

This would be important in a situation in which planning permission has been obtained. This amendment would strengthen subsection (2).

I am afraid I cannot accept this amendment. The main purpose of this section, and of Part III of the Bill generally, is to give expression in Irish law to the requirements of Directive 84/360 on the combatting of air pollution from industrial plants which has been adopted by the EC. That directive obliges member states to operate, by 1 July 1987, a system of prior authorisation — in other words, licensing in relation to the air pollution aspects of industrial plant. The central obligation of the directive is not necessarily confined to new industrial plant, although, clearly, in terms of design approval and considerations of this kind, new plants take priority. The system of prior authorisation is also required for substantial alteration of plants. Given all of this, it would be unacceptable, as this amendment seeks to do, to remove existing plant from any possibility of control under the new licensing system which Part III establishes.

Apart from the requirements of the EC Directive, I would be adamant, for the good of the Irish environment, that we should retain the power gradually to extend air pollution licensing to existing industrial plant. In other words, I favour 100 per cent retrospection. After all, existing plant will for a long time to come give rise to the bulk of industrial air emissions in Ireland. It would be wrong if the specifically designed air pollution controls of this Bill could not apply to them. Let me say immediately that I do not envisage that immediately this Bill is passed we will be insisting that plants and operations that have been working under planning conditions for years, perhaps decades, spend an enormous sum of money in complying with certain conditions we would now demand of new plant coming into existence. But there will be cases where we will have to request that they improve emission standards. This may include emission chimneys, scrubbers, retrofitting and desulphurisation plants. There will be cases where, over the years, we will have to request that they fall in line with what we now consider to be the minimum acceptable standards in terms of emissions which are polluting our countryside. This is for the sake of human and environmental health in this country. It is not a draconian measure. Subsection (3) provides for reasonable transitional arrangements in the event of existing plant being brought within the scope of licensing. That point is made quite clearly. Reason will prevail here.

Does this not discriminate against plants that were in operation before the passage of the Planning Act, 1963? I fear it does discriminate against plants that did not require any planning permission before that Act came into force.

No. It applies to all existing plant, even prior to 1962 and 1963.

All existing plant?

In theory this retrospection, if needs be, applies to everything we now have.

Whether or not there was planning?

Whether or not there was planning. If there is a pollution problem it can be applied.

To all plants authorised or unauthorised?

All, authorised or unauthorised. If an air pollution problem is being caused it allows retrospection with reasonableness.

I accept the Minister's assurance that the Bill when it becomes law will be enforced with sympathy and consideration. Even then I am sure there will be many firms who will find that the cost of modifications necessary in order to comply with the provisions of this Bill will put them out of business. While I am in favour of this Bill for the purpose of dealing with air pollution, I feel that at this difficult time for firms they should receive the greatest sympathy, consideration and financial assistance by way of grants to help those who might find themselves driven over the precipice if they had to carry out such very costly operations.

I might refer the Senator to our lengthy discussion yesterday on best practical means, when we had some slight difference of opinion. I was insisting that the expression we are using of "best practical means" should stick. I think the Senator finally agreed with me on it. Here we have an example of why the expression was so important as we defined it. "Best practical means" generally can take into consideration the age of the existing industrial plant or any other premises, the nature of the facilities installed therein and the period during which the plant or the premises is likely to be used or to continue in operation. If a very old plant was about to shut up shop in two years time, even if it was causing an environmental nuisance, I think we would have to consider this fact and not insist that they would have to spend millions on fitting or modernising, if the life of the plant was determined. Also, under "best practical means" would come the cost which would be incurred in renovating the plant or the premises, or of renovating or replacing the facilities therein, in relation to the economic situation of the undertakings concerned. These are the issues which will have to be taken into consideration in retrospection under our view of "best practical means". Senators can rest assured that commonsense will rule.

Amendment, by leave, withdrawn.
Section 30 agreed to.
SECTION 31.

Amendment No. 20 has already been discussed with Amendment No. 12.

Amendment No. 20 not moved.
Question proposed: "That section 31 stand part of the Bill."

Subsection (3) (a) states:

A person who, in relation to an application for a licence, or for a review of a licence, under this Act, or in relation to an appeal arising from such an application, makes a statement in writing which is false or to his knowledge, misleading in a material respect, shall be guilty of an offence.

We are talking here in terms of very heavy penalties and I feel some distinction should be made between information which is deliberately intended to be false and that which perhaps mistakenly could be false information. Deliberate deception is far different from an erroneous situation or where some information could be given in error. Something in this subsection should show that distinction.

I take your point, Senator, and I will come back to you, with your permission, on Report Stage. We will look at that. You may have a point there.

Section 31 (2) (h) states: "requiring an applicant to defray or contribute towards the cost of any investigation carried out by a local authority in relation to an application". What does the Minister envisage would be the cost involved, or what type of investigation would be envisaged that would carry a substantial amount of costs? That has to be built into the Bill because it is a very wide-ranging financial consideration for an applicant to have to "defray or contribute towards the cost of any investigation carried out by a local authority". I would like the Minister to tell us what type of investigation is envisaged here.

I would like to point out to Senator O'Toole that this section "may make provision for all or any". It is not a "must"; but it is there. In the case, for example, of a large chemical plant applying for a licence there could be quite an expensive procedure in a local authority investigating, analysing and researching the situation before them. A large combine, a multinational, would quite easily and quite happily contribute towards whatever information is necessary to grant them the licence to operate. This section makes provision that the local authority may, as such, claim such costs if necessary.

Section 31 (3) (b) is the one I referred to before where false information is supplied. It says:

Where a person is convicted of an offence under this subsection, any licence issued to that person consequent on the application or appeal in relation to which the information was furnished shall stand revoked from the date of the conviction.

This could be unfair in circumstances where the information was not deliberately false. It could be wrong in a situation where the granting of the licence did not hinge on the false information — in other words, in a situation where, if the correct information had been submitted, the licence would be granted. The Minister might consider adding there something to the effect that: "If it appears that because of the false information the licence was granted". Without the false information — and in this situation this could be due to an error — the licence would be granted. It would be wrong or unfair to revoke the licence on that account.

I will take section 31 (3) (b) with section 31 (3) (a) when we look at it and refer to it on Report Stage.

Question put and agreed to.
SECTION 32.
Question proposed: "That section 32 stand part of the Bill."

With regard to section 32, which deals with the granting of the licence, there is another situation where it seems — and I hope I am wrong — there is no appeal against an unfavourable decision. If that is so, would the Minister not feel that a means to process an appeal should be included in the Bill, to appeal against an unfavourable decision with regard to the granting of a licence?

I refer the Senator to section 34, where there is the possibility of an appeal to An Bord Pleanála in relation to the granting or refusing of a licence under section 32. I hope that will satisfy him.

Question put and agreed to.
SECTION 33.
Question proposed: "That section 33 stand part of the Bill."

This section deals with the review of licences. Section 33 (3)(a)(i) refers to where the local authority have reasonable grounds for believing that any emission from the industrial plant to which the licence relates constitutes a serious risk of air pollution. "Reasonable grounds" should be better defined and should include some scientific evidence. To my mind, this is very vague in this kind of situation, and is something which would require expert opinion to be included. Section 33 (3)(a)(iv) refers to "further and better evidence, which was not available when the licence was granted, has become available relating to a pollutant present in the emission concerned or the effects of such a pollutant." In relation to "further and better evidence," again there is no reference to a scientific basis. It is a sloppy term in a Bill of this kind and I would not regard it as professional. Some kind of acceptable standard should be used here.

Section 33 (3)(a)(iv) empowers the Minister to make regulations in relation to the procedures for review of licences including the giving of notice of review, the making of representations in relation to review and the publication of these notices. I do not accept that the expression "further and better evidence" is sloppy, as suggested by the Senator. It is essential that this section stands as it is.

For example, our knowledge is increasing at an enormous rate in the area of pollution control and standards we would have accepted ten years ago would not be accepted today, for example, base line standards for emissions of one kind or another. It is only in recent years that we have come to fully realise the danger of the organic chlorides, incomplete combustion and the difficulties with incineration and emissions of that kind. It is quite conceivable that if the system existed plants could have been licensed years ago before our knowledge was at the stage where we could include the conditions in relation to these matters. If we are serious about human health and the health of the environment, we must be in a position to proceed with the pace of scientific research and with the acceptable universal and internationally laid down standards. That is why section 33 (3) (a) (iv) is as stated here. What was the Senator's first point?

It was in relation to reasonable grounds.

Section 33 (3) (a) (i) states: "the local authority have reasonable grounds for believing that any emission from the industrial plant to which the licence relates constitutes a serious risk of air pollution...." The licence can be reviewed in those circumstances. This is what this Bill is all about. If we are serious about curtailing or, if at all possible, preventing serious air pollution, we must have the power and teeth to do that. We are either serious about this issue or we are not. I have absolutely no concern about this as expressed here. The expression "reasonable grounds" is well tried and tested and "air pollution" is well defined in the Bill. I refer the Senator to section 4 which states:

(i) be injurious to public health, or

(ii) have a deleterious effect on flora or fauna or damage property, or

(iii) impair or interfere with amenities or with the environment.

The reference is not just to air pollution; it is to serious risk of air pollution. It is one step above the definition in that there must be a serious risk. In most cases of seriousness scientific evidence — evidence that will stand up to scientific scrutiny — will be needed to prove the case. I do not feel it should be universally essential because there will be cases where it will not be necessary or where it will not be challenged and will be accepted. The occupier of the premises will be well aware of the difficulties he is causing as soon as it is pointed out to him, and there will be no need to go any further than that. There will be no need to spend large sums of money or any money at all in having scientific surveys or analysis of the situation if there is agreement with both parties that there is a problem.

With regard to the term "better evidence" we are dealing with air pollution and this is a measurable commodity. It can be determined in any situation whether or not we have air pollution. With regard to an engineer examining a plant or an air pollution scientist dealing with air pollution, there can be a number of people involved. I could have a plant and get three engineers to examine it and I would get three different reports. I would be in a position to determine which was the best evidence or the best report so far as I was concerned. That is not good enough. When air pollution can be dealt with on a scientific basis and when we have data and standards to go by, it is not good enough to introduce this vague phrase "better evidence" or "better scientific evidence". I am not sure what way it would be phrased. The connotation of "better evidence" is rather subjective in that it could be better for different people. There should be some objective way of dealing with evidence. Throughout the Bill my greatest complaint is that this scientific basis seems to be missing.

I disagree with the Senator because effectively further and better evidence of pollution would have to be scientific in itself. It would have to stand up to scientific scrutiny particularly in our courts. Generally also in all EC directives there is provision whereby we must adapt all standards to technical progress which is what I was talking about earlier. As our knowledge progresses, we have to adapt our standards and conditions accordingly. The dose effect relationship becomes better understood and we push forward the frontiers of what we consider acceptable in relation to protecting human and environmental health and we must have provision to do so.

My understanding is that the Minister agrees that this "further and better evidence" must have a scientific basis.

It must stand up to scientific scrutiny. It must be properly scientifically based.

Under the terms of this section a local authority may review a licence — and this is what we are talking about — regarding further and better evidence and it is up to the local authority to decide whether the evidence is better or not.

It can be challenged if the —

There is no compulsion under this section that it must be scientific evidence. A local authority can come to the conclusion that the evidence is better if it suits them.

It is scientific by its very nature if it relates to the effect of the pollutant.

Why then, with regard to the various sections we have spoken about, and this one in particular, is the Minister reluctant to include the term "scientific"?

I am reluctant to include scientific surveys and research as a universal condition because it may not be needed if there is agreement between the two parties that there is something wrong and causing pollution. There is absolutely no need to waste time or energy in surveying that officially. It will not always be necessary but any evidence of pollution will by, its very nature, be scientific or it will not be evidence of pollution.

I do not accept that. Perhaps I exaggerated when I said that "better evidence" was a sloppy phrase. It is not the kind of phrase I would envisage being included in a Bill where, in an instance like this, evidence should clearly have to be scientific. I cannot understand why the Minister is reluctant to include the word "scientific" in this section. While I understand why the Minister has justified this, I do not accept it. Clearly the datum line should be set down scientifically. This is the only basis for the Bill.

Question put and agreed to.
SECTION 34.

I move amendment No. 21:

In page 23, subsection (1), line 6, after "person" to insert "not being a third party".

This should be between the local authority and the firm or person involved or the Minister. The third party would complicate the situation. Perhaps the Minister would agree that it might be desirable to eliminate people not directly involved.

I do not agree. Perhaps we take democracy to too great an extent in Ireland but it is a practice and procedure which exists in our Planning Acts and in other legislation that third party appeal is allowed. What the Senator is suggesting would deny a third party the right of appeal to An Bord Pleanála in relation to licensing decisions made by a local authority under the Bill. I have to oppose that. The right of third party appeal is now fundamentally established in Irish environmental legislation operating under both the planning and water pollution Acts. I see no circumstances peculiar to air pollution which would justify a departure from this established policy in this Bill.

It is well to keep the question of third party appeals in prespective. Some three-quarters of appeals now being made to An Bord Pleanála are non-third party. However, I acknowledge the concern of industrialists and developers that there should not be an abuse of the third party procedure. Perhaps this motivates the amendment and I appreciate that. Under section 34 (4) appeals regulations under this Bill will be able to avail of all of the restraints on unfrivolous and vexatious appeals which are now built into the Planning Acts. An Bord Pleanála will be authorised to deal summarily with these.

I agree that persons should have that opportunity otherwise than in this section. I suggest that perhaps to phrase it as follows would be an improvement: "Any person whose application for a licence pursuant to section 32 and 33 has (a) been refused, or (b) been made subject to conditions may at any time before the expiration of the prescribed period appeal to An Bord Pleanála" etc. That is more acceptable. The people involved would be enabled to make this appeal because there would be an opportunity in this section for people who might want to object.

With respect, I disagree with the Senator.

Amendment, by leave, withdrawn.
Section 34 agreed to.
Sections 35 and 36 agreed to.
SECTION 37.
Question proposed: "That section 37 stand part of the Bill."

On section 37, my understanding is that the licence would belong to the plant rather than to the individual. If the plant were sold the licence would go with it?

That is correct.

Question put and agreed to.
SECTION 38.
Government amendment No. 22:
In page 25, to delete lines 4 to 9, and to substitute the following subsection:
"(3) Where a local authority decide pursuant tosubsection (2) to review a licence or to direct the occupier concerned to apply for a new licence or, as the case may be, a licence, the local authority shall, within one month of the receipt by them of the notice under this section, inform the occupier concerned accordingly and, if such occupier is not so informed, subsection (2) shall cease to have effect in relation to the alteration or reconstruction specified in the notice.”.

This amendment provides greater clarification of the intention behind the original text. The amendment makes it clear that, if a local authority decide to use the powers available to them under section 38 (2) to review a licence or direct that a licence be applied for, they will have to signal this within a month to the occupier of the premises concerned. Otherwise the occupier will be able to take it that no action under section 38 (2) will be taken by the local authority.

Amendment agreed to.
Question proposed: "That section 38, as amended, stand part of the Bill."

With regard to alterations of industrial plants and the provisions under this section, there is a strict obligation on firms and individuals under the Planning Acts to make application. Would the Minister not feel this is sufficient?

I am advised that this could be an issue wider than the Planning Acts requirements. It could, for example, be changed to the manufacturing process.

Question put and agreed to.
SECTION 39.
Question proposed: "That section 39 stand part of the Bill."

We said at the outset that scientific research should be made mandatory on a local authority before declaring the special control areas. That is something the Minister has been trying to avoid since this Bill went into Committee Stage. Mention has been made of pollution, suggested surveys and people carrying out surveys. What is wrong with making it mandatory on a local authority to carry out scientific research surveys before they decide on controlling or identifying special control areas? Is there any reason for the Minister shying away from this mandatory regulation? We feel very strongly that it is necessary to have a local authority carry out scientific research before they identify zones or special control areas. Up to this the Minister has declined on any section to ask a local authority for this mandatory scientific research. I would like the Minister to be more specific in her reply on why she feels it is not necessary to have scientific research carried out.

I would like to support Senator O'Toole and to rephrase section 39 (1) as follows: "Where it appears necessary to a local authority after detailed analysis and research that the whole or any part of their functional area should, in order to prevent or limit air pollution, be declared to be a special controlled area, they may make an order (in this Act referred to as a `special control area order') under this section." I dealt in great detail with this matter on sections 18 and 26 and there is no need to repeat myself.

I want to emphasise that it is an area which gives great power to the local authority solely on the basis of scientific experimentation or research and this section should be invoked. I appeal to the Minister to agree to consider the matter before Report Stage. Perhaps the question of a scientific survey could be included in this Bill in such a way as to satisfy the arguments we have been making to try to convince the Minister in this regard.

In practice all of these special control area orders will be subject to an inquiry. They do not have to be, but in practice we know there will be an inquiry if there is even one objection. An inquiry under section 41 (4) will be held within a specified period. Section 41 (4) states:

The Minister shall cause an oral hearing to be held in relation to the order and shall afford each person who duly made an objection to the order the opportunity of being heard.

At that stage the local authority will have to subject their proposals for the special control area order to confirmation by the Minister. The reasons they are applying for this order will be rigorously fine combed. In practice we are not talking about any large areas of this country. We are all aware that if it is to happen at all in the future on the first occasion it is more likely to happen in Dublin, given the way the trends are now.

Already there is monitoring and a lot of research and investigation into the Dublin situation. We had the Warren Spring Laboratory in advising, discussing and researching the position for the Dublin local authorities. I think the Senator's fears are unfounded. I presume the Senator considers monitoring of international standards, to be research. I do and I want to make that quite clear. I assume we are talking about the same thing here. The only reason it would not be necessary to make scientific research of any kind compulsory or universal in the legislation, would be if there was no objection to the order. There would be absolutely no need to proceed along certain lines if the matter was to be agreed between all parties concerned.

In practice, that is most unlikely to happen. I cannot envisage it happening at all particularly in view of what we are talking about, the special control areas and specific geographic locations in Dublin or portions of Dublin. In practice there will always be an oral hearing and the evidence of the local authority will have to stand up to scientific scrutiny, totally satisfy the Minister that it is soundly based on scientific considerations and international standards. The Senators need have no fears in this regard.

I am sorry to have to come back on this. The Minister has failed to answer our question. She has pointed out that this may not occur except in special areas and perhaps in the cities. I believe it would be mandatory on the local authority to have scientific research carried out before you could control a specific area and tell the people in that area what pollutant was there and to what extent. In regard to smokeless zones in other countries very rigid controls are being implemented. We are asking the Minister in those special circumstances to make it mandatory on a particular local authority in a specified area to have scientific research carried out. It would not be necessary at all in rural Ireland, but it may be necessary in a special area. Where there is to be a specified controlled area, the Minister should make it mandatory on the local authority to have scientific research carried out on the level of the pollutant in that area. It would be necessary to define the geographical area, if nothing else, in the special control area.

Unless you have scientific research carried out and make it mandatory on the local authority, you will not be able to define the boundaries of a special control area. I do not know why the Minister does not want to accept this. If she can give me some special reason she does not want that scientific research carried out, I will accept it but I have got no reason as yet. The Minister has not answered our question either yesterday or today as to why she will not make it mandatory on a local authority for the special control areas. That is all we are asking for.

We would be concerned about giving particular status in the Bill to scientific research or to a generic reference to scientific research. In itself, it could give rise to vexatious claims on the techniques in which the research was carried out and the thing could be dragged through the courts for years in relation to that even though there may be no doubt at all that a problem existed. I speak with limited knowledge as one with some scientific training in my background and who has done a lot of this sort of thing in the past. I refer to Part VI, section 54 which states:

A local authority shall carry out, or cause to be carried out, such monitoring of —

(a) air quality, and

(b) the nature, extent and effects of emissions,

as the local authority may consider necessary for the performance of their functions under this Act or as they may be directed by the Minister to carry out.

The first thing they will be asked by a Minister at any oral hearing in relation to, for example, a special control area order is what justification they have for this order, and they will have to present justification. The monitoring will be part of that. The monitoring will define the geographic limits of the area. They will have to know to what extent and how far this pollution is reaching. I am quite satisfied that with the provision under section 54 (1) the Senator's worst fears are catered for.

I wonder are we talking about the same thing when we talk about scientific research. This is the difficulty of using a global or generic term like that in a Bill in that that very term itself could be a letout for polluters or for any other body which, for whatever reason, vexatious or otherwise, wanted to prevent a special control area or at least hold it up indefinitely. Again it comes down to the fact that we want to ensure that the power is there to rectify a problem when there is no doubt that the problem exists. Monitoring, as far as I am concerned, is sufficient scientific evidence to calculate and evaluate the problem of air pollution.

I do not agree with some of the points made by the Minister. Scientific evidence in relation to this Bill seems very straightforward as far as I am concerned. The Bill sets out in the First Schedule to describe the pollutants that are referred to in the Bill. It seems very simple from a scientific point of view to measure the amount of pollutants in the air at any time and in any place. Surely there could be no ambiguity whatever about a scientific basis. The Minister, with her training and her skills in this area, must surely agree that in no way could it be ambiguous. We are dealing with air pollution. The Bill sets out very clearly the pollutants in the First Schedule. There could be no confusion whatever in discussing a scientific basis even with somebody who has no training whatever in this area. This is all we are looking for. That is my understanding of a scientific basis and I do not think there can be any other understanding of it.

Scientific input or monitoring of the air pollution of an area is only one of the criteria that need to be considered. It is, after all, a reserved function and there is considerable political input. In other words, the expense which would be incurred, for example, in complying with the order can also be considered. The availability of means necessary for compliance with the order is also to be considered. I am satisfied that the requirements in relation to monitoring are sufficient or will release sufficient scientific evidence for consideration on those grounds alone in relation to the special control area order. There are other considerations the Minister has to take into account. I am satisfied with the Bill as it stands in relation to this.

What is the difference between scientific research and scientific monitoring? The Minister agrees with scientific monitoring but she does not agree with scientific research.

The very reason I am not agreeable to put in scientific research is that I think the area could be challenged as to what the definition of it is and that could take up the court's time instead of preventing pollution by, for example, a special control area order. As a trained scientist I am satisfied that the monitoring procedures that can be enforced will give sufficient scientific evidence for the consideration we are talking about here. I cannot say they are the same, but they are very similar. What we want is scientific evidence for what we are talking about, I think monitoring is most satisfactory.

Would the Minister regard it as mandatory on the local authority before they bring in special control areas to have scientific monitoring rather than scientific research?

All monitoring in this context is scientific. I think what the Senator suggests is superfluous. Perhaps there are other types of monitoring in relation to air quality and emissions that are not scientific but as far as I am concerned it is all scientific. I do not want to split hairs but I am not aware of monitoring that is not scientific. Perhaps the Senator could enlighten me.

That is what the Minister is doing and I am afraid I am not capable of splitting them with her.

I am satisfied, particularly when we get to section 54, when we deal with the monitoring, that we have special provision.

The Minister is allowing local authorities to have special control areas without any research or scientific monitoring being carried out. They can bring in geographically controlled areas without having any scientific monitoring carried out. This is what we are trying to build into the Bill. We are changing the word to suit the Minister's requirement that it should be scientific monitoring instead of scientific research. We are afraid local authorities could bring in special control areas without any monitoring. That is what the Bill is entitling them to do.

We deal with monitoring in section 54. I hope the Senator will be satisfied with it when we get to it.

Before we continue, there was a question of an adjournment from 1 p.m. to 2 p.m. I was hoping to get the section cleared.

Perhaps we will finish the section.

Whether or not we get this section finished, it is most unlikely that we will get finished inside the next hour or hour and a half. Perhaps everyone would like a break.

Could we finish section 39 and perhaps adjourn then? Would that suit Senators?

My colleagues opposite are making heavy weather of this. They are looking too deeply into it. Any local authority who will be contemplating making a special amenity area will naturally have their ground work done. Scientific monitoring is going on in my area at present. As Dublin County Council members we get monthly reports on air pollution in the various areas in Dublin. The report tells us the amount of air pollution in Clondalkin, Tallaght, Blanchardstown, Terenure, and so on, on a monthly basis. I see this as scientific monitoring. Before a local authority would contemplate making it a special control area, they will have to have the back up to justify doing that and it is done scientifically.

There are two monitoring stations in Tallaght, I am not sure where the others are. This is enough scientific monitoring for me. If my local authority contemplated making a special control area naturally all public representatives for that area, including myself, would question it and there would have to be justification for it. We are going too deeply into this section. Perhaps it will be clarified later on. I think the section could be agreed.

Could I restate my feeling about the section? The pollutants are set out very clearly in the First Schedule. There is no ambiguity; nobody can make any mistake about that. It is possible to measure the pollutants in the atmosphere at any particular time. To my way of thinking, that is a scientific method.

That is what monitoring is — measuring the pollutants in the air.

That exercise can be done. I agree with the Minister on the definition of a scientific survey. Is it on a continuing basis or a periodic basis? I would agree to that extent. With regard to measuring pollutants in the atmosphere at any one time there is no problem. That is the proper and only way to proceed. If that is disregarded, in one local authority you could have a very strict official in charge and in another perhaps somebody who would have a different view.

Is the Senator accepting monitoring as scientific evidence?

I will if the Minister states categorically that monitoring—

We deal with that in section 54. Monitoring is dealt with specifically in that section.

We will leave it over then until we reach Section 54. In relation to subsection (3) (b) which refers to "the pollutant with which it is concerned", would there be more than one pollutant?

I am advised that the interpretation of that word is such that the plural is included in the singular.

The Minister has power to make, revoke or amend a special control area order and the making of such an order shall be a reserved function, which I believe is correct and proper but then in subsection (4):

The Minister may, if he considers it necessary so to do in order to prevent or limit air pollution, having regard to the provisions of paragraphs (a), (b), (c) and (d) of subsection (2), direct a local authority to make a special control area order...

While it is a reserved function, the Minister can impose his will on a local authority. In effect it diminishes the value of the fact that it is a reserved function.

We need this power in the subsection because we are responding to EC requirements and directives. If for whatever reason any local authority were reluctant to comply in any way, the Minister is ultimately responsible to the EC so he has to have the mechanism we are giving him under subsection (6) which allows special control area orders to be revoked or amended by local authorities and where an order has been made by direction of the Minister under subsection (4) the prior consent of the Minister for the Environment is required. Revoking or amending orders will themselves be special control area orders under subsection (1) and so will be subject to all of the confirmation procedures involving the Minister for the Environment required by section 41. It is to ensure that there is no risk of this country not complying with an EC directive. The Minister is responsible to the EC not the local authorities. On the very unlikely chance that there would not be co-operation, or difficulty in cooperating for whatever reason, by any local authority this power is given to the Minister.

In other words, while it is a reserved function, if the local authority do not fulfil their obligations the Minister steps in.

Yes, if they fail to meet the EC requirements, the Minister is responsible to the EC, not the local authority. The local authority are responsible to the Minister.

While in theory it is a reserved function, the local authority do not have an option.

If the circumstances are so extreme that is correct.

So it is a special type of reserved function?

It is a reserved function with a reserve in it. Now that we are a member of the EC we must comply with European directives. The Minister is responsible to the European Community, not the local authority.

To my mind it is a diminished type of reserved function.

We are not that long in Europe. I suppose it is new.

If, by reason of the fact that we are a member of the EC reserved functions will be contrained in this way, I do not think they will have much value in any future legislation.

There are parallels in other areas of local government law notably section 42(1)(a) of the Planning Act, 1963, which allows the Minister to direct a planning authority to make a special amenity area order. It is not the first time, but it is fairly new.

Under subsection (5):

A local authority may, with the consent of any other local authority concerned, make a special control area order in relation to an area which is within the functional area of the other authority.

This seems to be rather untidy. Would it not be preferable if the Bill were drafted in such a way that the local authority of the area where the problem existed dealt with it?

We are into transboundary pollution here, not in an international sense, but across the borough bounds or across the district electoral divisions or constituency boundaries. It is basically good commonsense. Subsection (5) allows a local authority, with the consent of other local authorities concerned, to make a special control area order which relates to an area within the jurisdiction of that other local authority. This is where geographical limitations and monitoring would come in. There is no point in limiting a special control area order to the bottom of one townland and not being able to go any further just because the district electoral divisions are laid down in some maps in some office. This subsection effectively allows an order to extend outside the functional area of the local authority making it. Similar provisions exist for special amenity area orders in section 42 (3) of the Planning Act, 1963. Again there is a precedent.

There will be a five year review. Would it be desirable that this five year review would coincide with the five year review of the development plan? Under subsection (7) there is provision for reviews at intervals of five years. The same applies to the development plan.

It would be tidy if that could be done. It would depend on the situation in each area.

Would the Minister feel it would be a good suggestion to make to local authorities?

I think it makes good sense. I agree with the Senator fully.

Question put and agreed to.

I propose we have a suspension of the sitting until 2 p.m. if that is agreeable to the Leader of the House.

That would be appropriate. I trust everybody will come back not soporific but full of eagerness to complete this before 4 o'clock.

It may not be altogether appropriate to the Bill but there was quite a build up of heat here last night. I wonder if the windows could be open during the break.

I agree. It was dreadful.

Sitting suspended at 1.25 p.m. and resumed at 2 p.m.
SECTION 40.
Question proposed: "That section 40 stand part of the Bill."

The burning of straw has been sufficiently covered and the Minister has given us an assurance which I accept. Where it will be obligatory on people to install certain types of fireplaces or appliances, will there be a corresponding grant from the State? Clearly it will be a very costly exercise with regard to this special control area, if certain alterations have to be made to comply with these conditions. I would like to think that in every case there would be a financial incentive by way of a generous grant from the Department.

The Senator will be glad to know there is power to make such a grant under section 45 (1). I refer him to it:

The Minister may, with the consent of the Minister for Finance, make a scheme or schemes for the granting of financial assistance in relation to the whole or any part of the costs incurred by the owner or occupier of a premises situate within a special control area in order to enable the premises to comply with the requirements of a special control area order...

I hope this meets the requirements of the Senator.

My reservation about it is that there is no commitment to provide this grant in the section which we will come to later. If there is an order under this section there should be some obligation on the Department — there should be no option — to give financial support.

This is as far as legislation ever goes in relation to these types of provisions. It is up to the Estimates for any particular year to take this on board if it should be the wish to the Minister for the Environment or the Minister for Finance. The budgetary considerations for each year would have to be considered and there is no precedent in any legislation specifying exactly that any of these grants must be compulsory or the amount of the grants. The enabling legislation for these grants is built into this Bill and it would be the intention if, for example, we are still talking about a house improvement grants scheme we now have, that any such scheme as may be relevant would be considered applicable or, indeed, any other scheme that may be necessary to enable any premises or dwelling to comply with the necessary alterations for a special control area order. This is as far as we can go.

The home improvement grant scheme is different. In relation to a special control area order could we assume there would be no order except where financial help would be given if it were necessary to install special appliances such as enclosed stoves because it could be very costly? I made the case before that if in the house improvement grants scheme, an incentive had been included for this — even without the Air Pollution Bill, 1986 — many families might have taken advantage of it. That was never done. There was nothing specific to influence people in their choice of appliance. Could we assume that in all cases a grant will be available and provided by the Department for the alteration?

In passing I might say that the present house improvement grants scheme has the opposite effect, if anything. We cannot assume there will always be grants available and, even if a grant was introduced, it would be subject to annual revision at budget time or at Estimates time. That is for policy later on. All we can do is make the necessary regulations in the section I have referred to that grants can be provided subject to the consent of the Minister for the Environment and the Minister for Finance.

In this monitoring of the special control area order, will we know what pollutant is there before these orders will come into effect? It is very important to know who is polluting, the extent of the pollution, and from where is it coming. There might be certain premises in the special control area with special type solid fuel emissions but they may not be responsible for the pollution. When a special area control order is put into operation, it will have to be spelt out the type of pollutant and what area the pollutant is coming from. People may be brought in under this umbrella who may not be responsible for the condition. With regard to special control area orders, I note the exemption in section 40 (1) (e):

exempt, with or without conditions, such premises or classes of premises as may be specified from all or any of the requirements of the order;

In (f):

exempt, with or without conditions, such fireplaces or such classes of fireplaces as may be specified from all or any of the requirements of the order;

Under these paragraphs a special type fireplace and a special type solid fuel may be exempted, but the type of fireplace and solid fuel necessary for exemption is not spelt out. Could the Minister elaborate on what is meant by the exemption of a particular fireplace and particular types of fuel? Could she also specify the pollutant and identify what would require a special control area order?

First, I refer the Senator to section 39 (3) (a) and (b):

A special control area order shall specify —

(a) the area to which it relates,

(b) the pollutant with which it is concerned...

I hope that puts his mind at rest in relation to his last point. In practice, at an oral hearing or inquiry which is a procedure I imagine all of these special control area orders will follow, the polluting source will be quite clear. I think the Senator has in mind the danger of, say, a special control area order being put on a certain geographical location and all the householders, for example, having to comply and perhaps being put to some cost as a result when, in fact, the increase in background pollution may be just from one industrial source, rather than from the domestic source. This will all become quite evident at the oral hearing and the pollutant will be specified. These factors will be taken into account in considering whether the order will be made or not.

Yes, there can be exemptions for certain fuels and types of fireplaces. We are not in a position to state at this stage what those may be or what type of fuels. It is basically until the Bill comes into effect. We had a discussion this morning on an earlier section in regard to requiring fuel manufacturers to give notice in writing of certain parts of their operations, the type of fuel, the quantity and so on. Availability of certain types of fuel is a consideration which will have to be taken into account, because we cannot discommode overly the elderly and those who may not be in a position to get specialist type fuel. All of this has to be taken into account in planning a special control area order in order to make sure it will be satisfactory.

If it were intended to have a certain type of smokeless solid fuel, it may be very expensive for the poorer section of the community. While the rich people could comply very easily, the old, the infirm and poorer classes of people in that particular area would want to be exempted because they would not be in a position to buy the fuel since it would be much dearer than ordinary fuel. That would discriminate against the poor, and it is something I would not like to see happening.

I do not want to be accused of holding up the proceedings. I would like to raise a few points on this section. I do not imagine the Department or the Minister will be concerned with ordinary household emissions except in urban areas which are designated as smokeless zones. There are a number of nuisance practices that should be dealt with. I wonder if this Bill is strong enough to do this? In many cases people who trade in scrap buy up wires covered with either plastic or rubber and then burn off the covering in order to sell the copper.

An Leas-Chathaoirleach

We dealt with this point.

On Second Stage the Minister said she would consider deleting section 40 (1) (c), which states:

...prohibit, subject to such limitations and exceptions as may be specified, the burning of straw, waste or any other substance;

We dealt with that this morning.

Is it being left in?

That section was agreed.

How does the Minister propose to deal with emissions from industrial plants? How will the legislation draw a line between maintaining valuable employment opportunities and at the same time considering people who reside adjacent to an industrial estate or a chemical plant? In the main the residents will have been there before the plant was set up. Most areas are anxious to have industrial plants. How will the Minister ensure that the quality of air and the environment is protected? Will the Minister have power, under this section, to require plants to put in tall chimney stacks and or attach scrubbers to them? If we take a non-chemical plant, a cattle slaughtering facility, where you can get the whiff from it four or five miles away, will the Minister have the power to ensure that existing plants do not pollute the surrounding areas, and, if say under which section?

We have agreed that under the licensing section we have powers for retrospection. I feel very strongly about this myself. I hope that the section as now is stands, if my recollection is correct of what we agreed this morning under Part III, the licensing section. Section 40 (1)(c), which the Senator referred to and caused some concern about on Second Stage, needs to be in here. What we are talking about under section 40 is:

Without prejudice to the provisions of section 39 (3), a special control area order may make provision for the following:

It lists subparagraphs (a) to (j) prohibiting certain practices. Straw burning could be one of those because the effect of straw burning is to create smoke. If on monitoring the general agreement was that we should place such a special control area order on a certain geographical location to ensure that certain requirements were met by private dwellers and industrial premises, then it goes without saying that you could not have the burning of vast quantities of straw in the middle of one of those areas. There would have to be very good and stringent reasons for putting on one of those control area orders. Generally, we are talking about fairly large urban areas. Probably Dublin would be one of the first we would consider, and we may consider hypothetically Cork, Galway, Limerick and other big cities. But, effectively, our thoughts for the moment are directed towards the possibility of this situation happening in Dublin or parts of Dublin. The remainder does not seem to be a realistic possibility in the near future. The reason it is included is to ensure that, if a special control area order is placed, all types of activities could come under it. The section states:

...prohibit, subject to such limitations and exceptions as may be specified...

In relation to all this vexed area concerning the burning of straw, I pointed out this morning that it was not the intention to annoy or upset the long-established agricultural practice of the annual burning of straw and stubble which, particularly on the east coast, has become very common. It is only if the burning of straw would actually cause air pollution as defined under section 4, where "air pollution" is defined as a condition of the atmosphere in which a pollutant is present in such a quantity as to be liable to:

(i) be injurious to public health, or

(ii) have a deleterious effect on flora or fauna or damage property, or

(iii) impair or interfere with amenities or with the environment.

It would only be in regard to the burning of straw to that extent that we would envisage any action being taken. As most burning of straw by farmers is a once-off situation on an annual or irregular basis, this Bill is not intended to affect that at all.

Has the Minister power to insist that existing commercial plants whether a factory or not—

I answered that under Part III — Licensing of Industrial Plant, the answer is "yes".

I made the point that the house improvement grant scheme was not a proper vehicle for the payment of grants in relation to this Bill. Advantage could have been taken of the house improvement grant scheme over the years to encourage people to fit appliances which would perhaps give them a better return on the fuel used. The Minister made a comment which seems to suggest an opposite view. I did not quite hear what the Minister said.

I said rather facetiously in passing that the present house improvement grant scheme could work detrimentally in cities in that we are paying grants towards the building of chimneys and the burning of solid fuels.

Of course, the position is that the open fire has a cultural place in our history and with great reluctance people change.

Believe you me, it would be with great reluctance that any of these special control area orders would be put in place.

Of course, what Senator McDonald has said is quite true. By and large, the great concern is in the urban or densely populated areas. Nevertheless, the open fire is still as much beloved there as it is in the rural areas. I do not think there is any distinction. Perhaps a decision should have been made a long time back, in areas where it was felt there would be a problem, to encourage people by way of grant. However, that opportunity was lost, and I think if that opportunity had been grasped we would not have the problem now that we have.

Section 40(2) states:

The Minister may, by regulations, declare that any particular class of fireplace shall, subject to such conditions as may be specified in the regulations, be an authorised fireplace for the purposes of a special control area order.

Would the Minister envisage that in all cases this would be an enclosed appliance, a stove of some kind? Is there any situation in which a refinement sufficient for the purpose of this Bill could be included in the open fire?

Closed appliances come most immediately to mind, given the present state of technology. But it is not beyond the bounds of physics and chemistry to envisge a certain type of fuel in the future that could be burned in an open appliance which could comply with these orders too. Not exclusively, but in the main I would agree with you and certainly at the moment with our present state of technology it would appear to be that way.

Question put and agreed to.
SECTION 41.

An Leas-Chathaoirleach

Amendment No. 23 is in substitution for amendment No. 23 on the principal list of amendments circulated on 26 November 1986.

I move amendment No. 23:

In page 28, between lines 31 and 32, to insert a new subsection as follows:

"(9) Any person who feels aggrieved with regard to the Minister's decision relating to a special control area order may appeal within twenty-one days to An Bord Pleanála."

I feel that this amendment speaks for itself and I do not think it needs any elaboration. I think there should be an appeal. Perhaps the court would be a more appropriate body than An Bord Pleanála. In any event there should be some provision for an appeal in circumstances where people would feel aggrieved.

This amendment seeks to add a further layer of appeal or review in relation to a special control area order. For very coherent reasons there is now no instance in environmental legislation of decisions of An Bord Pleanála being qualified by the Minister for the Environment or vice versa. One tier of appelate authority is as much as can sensibly be operated in the administrative field and we propose to continue this sensible arrangement in the present Bill. In matters of general environmental policy, such as special amenity area orders under planning law or special control area orders under the present Bill, it is the Minister rather than An Bord Pleanála with whom power of confirmation most appropriately rests.

Does the Minister feel that if we substituted "the court" for "An Bord Pleanála" that would be more appropriate and would the Minister be prepared to consider the amendment with that change? Instead of an appeal to An Bord Pleanála that we would substitute "the court" for "An Bord Pleanála" and make that provision by amendment in the section of the Bill.

I regret, a Leas-Chathaoirleach, that I cannot accept the Senator's suggestion because there is always an appeal to the court if it is felt that the Minister has not adhered to the principles of natural justice. That was never precluded.

Amendment, by leave, withdrawn.
Question proposed: "That section 41 stand part of the Bill."

Subsection (d) states:

specifying the period, being not less than one month, within which, and the manner in which, any person affected by the order may make objections thereto;

Would the Minister feel that the period of one month is insufficient and perhaps consider increasing this to three months?

I refer the Senator to the wording "being not less than one a month". It is a minimum of one month; it could be far more in practice.

Section 41(1)(f) reads:

stating that if objections are duly made to the order and are not withdrawn, the Minister, before confirming or refusing to confirm the order, will cause an oral hearing to be held at which any person who has, within the period specified in the notice, made an objection to the order will be afforded an opportunity of being heard.

It seems to me there is no provision here for a resolution of a problem of this kind because I feel that in some instances objections could be dealt with by a public relations exercise and that the objection could be resolved. At the end of subsection (2) there are the words: "...within the specified period, been made and have not been withdrawn". If "or resolved" were added there, it would make some provision for resolving them. On subsection (1)(f) it seems to me that where an objection is made or withdrawn it must be dealt with. I feel that objections could be resolved and there should be some provision to resolve them.

If they are resolved they will be withdrawn.

Let us suppose that an objection is made and it is not withdrawn in toto. If there were an objection there would be a compromise to resolve a problem of that kind. Would the Minister not feel that that might be helpful? Where an objection is made and or withdrawn, those two situations are covered. An objection could be resolved if there was a public relation exercise of some kind, and there is no provision for this.

If it is resolved it will automatically be withdrawn. There is no point if an objection is resolved leaving it there to go through this.

Suppose it was not totally withdrawn?

It is a hypothetical case.

Question put and agreed to.
SECTION 42.
Question proposed: "That section 42 stand part of the Bill."

Oral hearings are an important part of the Bill and under subsection (4) there is power to administer oaths. This also is provided for in the planning regulations with regard to appeals, but I do not think oaths are always administered. I presume that they will not be administered often in this area either.

Subsection (5)(b)(i) states:

it shall not be necessary for a person to attend in compliance with a notice at a place more than ten miles from his ordinary place of residence unless such sum as will cover the reasonable and necessary expenses of the attendance have been paid or tendered to him...

How are the reasonable and necessary expenses determined? Are they ordinary travelling expenses? Why is there this arbitrary condition of ten miles? Would it not be better to eliminate that totally and to rephrase it without this condition — unlimited distances?

I am advised that there are precedents for this. This is based on other legislation and the format on the ten mile clause has been well tried. There was another point the Senator made before that.

In regard to administration of oaths.

It is based on other legislation.

Question put and agreed to.
SECTION 43.
Question proposed: "That section 43 stand part of the Bill."

Section 43(1) states:

If, at any time, it appears to the Minister to be necessary so to do, he may, by order, suspend or relax the operation of a special control area order in relation to the whole or any part of a special control area for such period as may be specified in the order.

It appears that the Minister may rescind the decision of the local authority under section 39. That is my first point. The second point is in regard to subsection (2). It states:

Before making an order under subsection (1), the Minister shall, unless because of the urgency of the situation such consultation is not practicable, consult the local authority concerned.

There is no obligation on the Minister to consult the local authority. The Minister can state that the problem did not allow him to consult the local authority. It seems that the Minister could over-ride the decisions of the local authority.

Section 43(1) is necessary because it provides a basic power for the Minister by order to suspend or relax an order in whole or in part for such period as may be specified. We have in mind if there was a serious fuel crisis of any kind, if there was a national emergency of any kind, in that type of event the Minister may need power to suspend or relax an order, in whole or in part, for such period as may be specified. He may do so under subsection (2) without prior consultation with the local authority if circumstances deem that has to be. We are talking about the extraordinary rather than the ordinary situation in these cases.

Question put and agreed to.
SECTION 44.

An Leas-Chathaoirleach

Amendment Nos. 24, 25, 26 and 26a may be discussed together.

I move amendment No. 24:

In page 30, subsection (1)(a), line 4, to delete "or".

Section 44(1) states:

A local authority may, by notice in writing served on the person who appears to them to be the owner or occupier of a premises which (a) is within a special control area...

This has been confirmed by the Minister. It seems that there is provision to anticipate the decision of a local authority. Paragraph (b) states:

will be, when a special control area order comes into operation, within such an area...

It is not proper, if that is the case, that there should be provision to anticipate a decision of the local authority.

The fact that Government amendments No. 26 and 26a have been put down on this matter in addition to those of Senator O'Toole and Senator Fitzsimons acknowledges that they have rightly identified a weakness in the original draft of subsection (1). It would be wrong, as arguably the original text allows, if a local authority could serve notices on occupiers of premises requiring certain things to be done on the strength of an order still awaiting confirmation by the Minister for the Environment, that an offence under subsection (1) could arise before a special control area order comes into operation. The Government amendments correct both of these flaws.

Amendment No. 26 means that a notice may be served only where a special control area order has been confirmed by the Minister for the Environment. It will still allow a notice to be served during the period which under section 41(7) must be at least six months between confirmation of an order by the Minister and its coming into operation. Amendment 26a provides that where this happens the period within which works must be carried out cannot end sooner than the date on which the special control area order comes into operation. In order words, failure to comply with the notice can only arise when the special control area order comes into operation. This is what amendments No. 24 and 25 put down by Senator O'Toole and Senator Fitzsimons seek to protect. However, their amendments go further and want to delay any service of notice until the special control area order is in operation.

Section 41 (7) provides for a minimum delay of six months between the Minister confirming the order and its coming into operation so that the public can be given notice of adaptations which will be required of them to comply with the order. If the Senators' amendments were accepted there would be no point in this transitional period.

Amendment, by leave, withdrawn.
Amendment No. 25 not moved.
Government Amendment No. 26:
In page 30, line 5, after "order", to insert "which has been confirmed by the Minister".
Amendment agreed to.
Government Amendment No. 26a:
In page 30, line 17, after "notice", to insert "and ending not sooner than the date on which the special control area order comes into operation".
Amendment agreed to.

I move amendment No. 27:

In page 30, subsection (3), line 26, after "may" to insert "confirm,".

We dealt with this amendment earlier.

Amendment, by leave, withdrawn.
Amendment No. 28 not moved.
Section 44, as amended, agreed to.
SECTION 45.
Question proposed: "That section 45 stand part of the Bill."

We have referred to this before. I accept the Minister's point that it conforms with other legislation. It is a pity there is no commitment on the part of the Government to provide financial assistance. The vehicle to do so is there. Presumably grants will be given and I hope they will be generous. People must be faced with considerable expense in order to conform with this Bill and there might not necessarily be any financial assistance.

Section 45 provides the basic enabling power for a scheme of grants. The form of these grants is not fixed by the Bill and they could consist of grants, loans or subsidies towards the cost of the relevant works. There has been criticism that this provision is stated permissively rather than mandatorily, "may" rather than "shall", and that accordingly there is no obligation on the Minister to provide a scheme of grants.

I would like to make a number of points in reply. First, the scheme of grants is wholly related to the existence of a special control area order or orders which the Bill itself cannot bring into operation. These will depend on an assessment by the local authorities or the Minister himself or herself under section 39. Pending this assessment, it would seem premature to provide mandatorily for a scheme of grants. Secondly, it is normal practice, reinforced by the argument at the first point above, to provide statutory authorisation for new grant schemes in permissive terms only. I referred to this earlier. The introduction, scope and financing of the scheme then becomes a matter for debate by the Dáil in the context of the relevant estimate — in this case, the Environment Vote.

Question put and agreed to.
SECTION 46.

I move amendment No. 29:

In page 31, subsection (1), line 16, after "may," to insert "where it appears necessary after detailed analysis and research,".

It is not necessary to go into this amendment in any detail. We have already dealt with it on sections 18 and 26 when we made our position clear that there should be scientific research. On that basis, we have already over-stressed it. Because we believe it is a serious defect in the Bill we appeal to the Minister to consider this amendment.

The local authority are not obliged to prepare an air quality management plan unless required by the Minister. None of the powers in the Bill should be implemented without detailed analysis and research. While appreciating the cost of any such research, we would prefer to see a levy to fund it made on the businesses of the people involved — known as suspects in causing the pollution — and see the Act implemented selectively and the powers used against the true sources of pollution.

Section 46 enables local authorities to make air quality management plans for the preservation of air quality in their areas. It is implicit in this that a local authority would only propose such a plan where monitoring has shown a need and that the proposals for upgrading and preserving air quality would be based on an analysis of the monitoring results. In any event, where local authorities propose making air quality management plans, they would be basing their proposals, in the main, on achieving EC air quality standards and guide values. These standards are distilled from international research carried out by such bodies as the World Health Organisation. Local authorities have neither the expertise nor the money to duplicate such research, nor is there any need to do so. Similar provision is made in the Local Government (Water Pollution) Act, 1977. I believe, with respect, that this amendment is unnecessary.

Amendment, by leave, withdrawn.
Section 46 agreed to.
SECTION 47.
Question proposed: "That section 47 stand part of the Bill."

This section deals with the power of the Minister in relation to an air quality management plan. The Minister may direct a local authority, or two or more local authorities jointly, to make an air quality management plan. If two or more local authorities are to make a joint plan, I would prefer it to be the decision of each of the local authorities. Here it is taken out of their hands and the Minister may decide that more than two should join together. The Minister referred to the functions of public representatives and happily the air quality management plan is a reserved function and it is a pity the Minister has this power rather than giving the local authorities the opportunity to make a joint plan if they so decide and wish.

Effectively, if they wish jointly to do a water quality management plan, local authorities have the power to do so under section 59 of the Local Government Act, 1955. We are into the area of transboundary pollution again. I have referred to this before. This section is ancillary to section 46 and it empowers the Minister to direct in a variety of ways the making or co-ordinating of air quality management plans by local authorities. I could say also that a similar provision exists for water quality management plans under section 15 (7) of the Local Government (Water Pollution) Act, 1977. There is a well tried and tested precedent for this type of measure. The Minister may direct an individual local authority, or two or more local authorities jointly, to make a plan. He may require variations in any plan or require co-ordination by two or more local authorities. The local authorities are required to comply with the directions of the Minister under this section.

Question put and agreed to.
SECTION 48.
Question proposed: "That section 48 stand part of the Bill."

I agree with the publication of notices in relation to the air quality management plan and the fact that the copy of the proposed plan, or a variation of the plan, may be inspected at a stated place and at stated times during a stated period. The period should be quite substantial. I hope the plans will have better success than they had under the Local Government (Planning and Development) Act, 1963—the five-yearly revisions—because there does not seem to be as much interest in them as there should be.

Section 48(4)(a) states:

Any person interested may request a local authority for a copy, or extract, of an air quality management plan and the local authority shall comply with such request.

I am wondering if the word "interested" is superfluous and what kind of interest would a person need to have. I am sure anybody looking for a plan would have some interest. Would the person have to be residing in a particular area, or have some specific interest in order to comply with that subsection?

I agree with the point made by the Senator in relation to his hopes that publication will have the desired effect and will elicit greater interest in the public than perhaps other precedents have done. In relation to the word "interested" we have no strong, firm view on that. It is just a drafting procedure. If the Senator feels we should look at it again to see whether it should be there when we get to Report Stage I am quite prepared to do so. I have no strong views on it. I presume they would not be asking if they were not interested. It could be superfluous.

Question put and agreed to.
SECTION 49.
Question proposed: "That section 49 stand part of the Bill."

With regard to "such other persons as may be prescribed", can the Minister tell us who she feels might be prescribed under this section.

In response to that I suggest any other person, or body, or local authority — An Foras Forbartha, IIRS, An Bord Pleanála, for example.

Question put and agreed to.
SECTION 50.
Question proposed: "That section 50 stand part of the Bill."

Under section 50 (3) (a) and (b) is there provision to vary the air quality standards during the five year lifetime of the plan? It is not clear to me whether this is so.

I am advised that this would be independent. Could I ask the Senator to repeat his question? I am not quite sure what aspect of it he is referring to.

Is there provision under this Act and specifically under this section to vary the plan during its five year lifetime?

By local authority or the Minister?

I am advised that an air quality management plan can be revised at any stage during its lifetime by the relevant local authority.

Question put and agreed to.
Section 51 and 52 agreed to.
SECTION 53.
Question proposed: "That section 53 stand part of the Bill."

The Minister, for the purpose of preventing or limiting air pollution, may make regulations in relation to different areas under paragraphs (a), (b), (c), (d) and (e) of section 53(1).

There is no need to go into all of them. Section 53(1)(a) states:

...the standard, specification, composition and contents of any fuel of a type which is used in mechanically propelled vehicles or in mechanically propelled vehicles of a particular class or description or mechanically propelled vehicles in a particular area or a particular class of areas.

Section 53(1)(e) is on the same lines:

(e) the use, or the prohibition of the use, in mechanically propelled vehicles, or in mechanically propelled vehicles of a particular class or description of a fuel, or of a fuel which does not comply with such requirements as may be specified.

I ask the Minister if that power does not exist already in regard to fuel. I refer to the European Communities (Lead Content of Petrol) Regulations, 1985. Under regulations of that kind does the Minister not have that power? In regard to the fuel, it is not always the fuel on its own that is material; it could be the condition of an engine, for example, the situation with regard to mechanically propelled vehicles, motor bikes without silencers and so on. Without covering all of that area, I feel that the Minister already has the specific power which is given under this section of the Bill.

Yes, the Senator is correct. We have those powers already but we want to put it into this legislation specifically as well. He is quite right when he refers to EC legislation, but he is probably also aware that the Oireachtas Joint Committee on Secondary Legislation of the European Communities have recommended that in our own domestic legislation we take on board these requirements.

In relation to the Senator's second point we are dealing purely with fuel here. Under this Bill we are not in a position to take into account engine design or standards or anything else. That is for another consideration.

Would the Minister agree that the engine design and the state of an engine could be very important.

I do agree.

Would the Minister agree that there is a deficiency in the Bill in regard to dealing with the condition of mechanically propelled vehicles and certification, for example, that they are in acceptable working order?

During the course of my speech on Second Stage I referred to particular vehicles that were in such poor condition that they were the greatest pollutant nuisance we had in the city of Dublin. I went as far as to state the type and the agencies involved. They are more of a danger to health and pollution than the traditional type solid fuel chimneys. There is no reference to control of the buses that are polluting Dublin city at present. If you walk through the city you will see that the buses being used cause pollution and are a danger to health. I see nothing in this Bill that will control that pollution. I would have thought that when the draftsmen and the Minister were bringing in the Bill that they would have something in it to control that type of pollution. Can the Minister tell us if there is anything in the Bill that can control that type of pollution? We feel that there is not.

Only last week, or ten days ago, at the last meeting of the Council of Environment Ministers they discussed proposals for cleaner diesel engines and when that appears in the form of a directive we will take it on board.

There are also EC proposals in relation to engine type and approval regulations which will affect what we are talking about here and which will be taken on board by the Department of Industry and Commerce as soon as possible. In practice we have controls under the Road Traffic Acts at present but these have proved to be very difficult to apply. In principle we have controls but they have proved notoriously difficult in practice to apply. There are regulations there now but in practice they are not having great results. We are dealing specifically with the fuel inputs here, but by way of example I gave you the other areas of regulation where work is being done at present. I agree with Senator Fitzsimon that it is a contributory factor to pollution in our larger cities. It is being worked on on several fronts and not just here.

In view of the fact that the Minister agrees that the engines as well as the fuels are of critical importance, is there not a serious deficiency in this Bill that there is no provision? The Minister says that there is provision at present but it is not invoked very often or it is not as effective as it should be. Here is an opportunity to make it so in a very important area. The point was made by many Senators — indeed, it was made by Senator O'Toole on Second Stage — that in the city we have buses, cars and vehicles of all kinds spewing out poison at breathing level. In this section there is provision in relation to fuels which in effect is no better than the statutory provisions that we have at present. Thee is no provision for the testing of engines and ensuring certification. Would the Minister consider before Report Stage including a section which would deal with this specific and major problem?

Much as I would like to make this Bill more effective, I will not be considering such a section between now and Report Stage. The areas we are talking about are the controls and production, marketing and vehicle testing, and all of these are more properly dealt with by the Department of Industry and Commerce. We already have vehicle testing, including that of buses, which is already mandatory. I agree that until we get our act together in all these areas we will not have the desired effect as quickly as we would like. They are not specifically relevant to what we are discussing today.

It is not as effective as it should be because we are dealing with other areas. With regard to fireplaces, for example, we are dealing with the consumption of fuel. Here we are also dealing with the consumption of fuel. I cannot see why in relation to fuel, in a domestic or in a commercial situation, there should be such restrictions. Then there is this other area of such importance with regard to pollution. I cannot understand why that is not included. It is a serious defect in the Bill and I am sorry that the Minister does not agree.

Question put and agreed to.
SECTION 54.

Mr. O'Toole

I move amendment No. 30:

In page 35, subsection (1), line 36, after "out" to insert "at regular intervals".

The provisions of this section could be strengthened and highlighted by acceptance of this amendment. We feel it should be obligatory on a local authority to carry out monitoring at regular intervals. We spoke about this earlier.

This section requires local authorities to carry out monitoring of air quality and emissions. I do not accept that the addition of the words "at regular intervals" improves the meaning of the section or indeed makes more specific the obligations placed on local authorities. The Bill requires local authorities to carry out such monitoring as is required for the performance of their functions under the Bill. Additionally, they are required to comply with any directions given by the Minister in relation to the number and location of monitoring places, the manner in which sampling and so on is to be carried out and the equipment to be used. I believe the section as at present drafted will ensure adequate and appropriate monitoring.

It will be monitored only at the request of the Minister?

That is not correct. The Senator misheard me.

The Minister does not think the inclusion of the words "at regular intervals" is necessary. We feel that it should be obligatory on local authorities to monitor at regular intervals.

I agree with Senator O'Toole that such monitoring should be not alone obligatory but should be carried out on an ongoing basis at regular intervals. It would be imperative that it be done at regular intervals. We are disappointed that the Minister cannot accept our amendment.

Amendment, by leave, withdrawn.
Question proposed: "That section 54 stand part of the Bill."

As the Minister has already said, subsection (7) states that "The Minister may monitor, or make such arrangements for the monitoring of, air pollution as seem to him to be necessary or desirable." This is in addition to the local authority function. Is this to be done when a local authority failed in their duty? In what circumstances would the Minister envisage that he would actually arrange for monitoring?

There need not necessarily be a situation in which a local authority has failed for the Minister to so direct. In fact, he might require An Foras Forbartha, the IIRS or any such body to monitor or to do some specialist monitoring of any kind over and above what perhaps a local authority would be in a position to do. In practice, air quality monitoring will be mandatory under this section on local authorities in whose areas appreciable air pollution exists. The proof of this is as follows: first, the EC air quality directives on smoke and sulphur dioxide and on other pollutants have been adopted and applied throughout Ireland. The Minister will have to give expression to these air quality standards by regulations under section 50. Where an air quality standard has been prescribed by the Minister the provisions of subsection (5) of this section oblige a local authority to make such arrangements for monitoring as may be necessary so that they can determine whether the air quality standard is being complied with. They will have to monitor; otherwise they will not be able to determine if the air quality standard has been complied with. When in Dublin, and more rarely in some of our other large urban areas, these air quality standards are sometimes exceeded or approached, then the local authority concerned will be under a clear obligation to carry out monitoring under subsection (5).

Question put and agreed to.
Sections 55 and 56 agreed to.
SECTION 57.

Amendments Nos. 31, 32 and 33 are consequential on amendment No. 34. Therefore amendments Nos. 31, 32, 33 and 34 may be discussed together.

Government amendment No. 31:
In page 37, line 10, to delete "alkali work", and to substitute "relevant work".

We have discovered a minor grammatical flaw in amendments Nos. 32 and 33. These related to the indefinite article qualifying "alkali work" and "relevant work". I will read out a corrected version of both amendments, with your permission. Amendment No. 32 will read:

In page 37, line 14, to delete "an alkali work", and to substitute "a relevant work".

Amendment No. 33 will read:

In page 37, line 15, to delete "an alkali work", and to substitute "a relevant work".

These amendments have the common purpose of correcting a drafting error. This would have meant that the transitional provisions of this section would not apply to so-called scheduled works which the 1906 Alkali Act controls in addition to alkali works. The amendments apply the transitional provisions to both classes of works. By invoking the concept of existing industrial plant the new subsection (4) also makes it clear that the transitional arrangements will not affect new plant coming within the scope of the Alkali Act. New Alkali Act-type plants will, therefore, be subject only to the provisions of Part III of this Bill.

Amendment agreed to.
Government amendment No. 32:
In page 37, line 14, to delete "an alkali work", and to substitute "a relevant work".
Amendment agreed to.
Government amendment No. 33:
In page 37, line 15, to delete "an alkali work", and to substitute "a relevant work".
Amendment agreed to.
Government amendment No. 34:
In page 37, to delete lines 19 and 20, and to substitute the following:
"(4) In this section `relevant work' means existing industrial plant which is either—
(a) an alkali work within the meaning of the Alkali, etc. Works Regulation Act, 1906, or
(b) a work listed in the First Schedule to that Act."
Amendment agreed to.
Section 57, as amended, agreed to.
NEW SECTIONS.
Government amendment No. 35:
In page 37, before section 58, to insert the following new section:
58.—The provisions of section 10 of the Local Government (Sanitary Services) Act, 1962, and of the Control of Atmospheric Pollution (Licensing) Regulations, 1985, shall notwithstanding the repeal by this Act of that Act and those Regulations, apply to existing industrial plant which is used for the purpose of any trade, works or process within the meaning of those Regulations until a licence under this Act is granted in respect of the plant concerned.".

This amendment is related to amendments Nos. 6 and 7 which deleted the reference, in section 6, to plant licensable under the Control of the Atmospheric Pollution Regulations of 1985. This new section provides for transitional arrangements similar, to those of section 57, for alkali etc. works. Section 6, as amended, provides that existing plant, licensable under the 1985 regulations, that is plants for the extraction or recovery of metal from scrap, will remain exempt from licensing under Part III of the Bill until regulations are made under section 30(2). The 1985 regulations will be repealed immediately the Bill comes into operation to ensure that the new industrial plant licensable under the regulations will only have to undergo licensing under Part III.

This new section will ensure that notwithstanding the repeal of the regulations, any existing smelter etc. plant should remain subject to the control of the regulations until it is granted a licence under this Bill.

I do not understand this fully. Is this amendment additional to what is contained already in section 58? In other words, will subsections (1), (2) and (3) be retained?

It is a completely new section.

—deleting section 58 as it stands?

Section 58 now in the Bill becomes section 59. We are inserting what I have just said as section 58.

Is section 58 being deleted then?

We are calling it section 59; sorry for the confusion.

Amendment agreed to.

Acting Chairman

We will continue our discussion on section 58 as in the Bill. Amendment No. 36 was ruled out of order. Amendment No. 37.

Amendment No. 36 not moved.

I move amendment No. 37:

In page 37, before section 58, to insert a new section as follows:

59.—Any person guilty of an offence under the Public Health (Ireland) Act, 1878, for small nuisance, shall be guilty of an offence under this Act.".

We have dealt with the new section 58. Am I right in saying the present section 58 becomes section 59?

Acting Chairman

We are dealing with section 58 as in the Bill.

Section 58, as in the Bill, which becomes 59.

When the Bill is reprinted it will be section 59.

This is the second time in the Bill when we have had reference to the word "nuisance." There is no definition of the word "nuisance". That is a pity. Would the Minister agree to consider before Report Stage including a definition of "nuisance". Otherwise—as I understand it —"nuisance" would be regarded as having one of the meanings I mentioned yesterday evening.

This amendment might be practical if smell nuisances were dealt with in the 1878 Act in a clearly identifiable way, as distinct from being associated with the general concept of "nuisance". Unfortunately, this is not the case. The definition of "nuisances" in section 107 of the 1878 Act contains no explicit reference to "smell". The present Bill, in its own right, covers the matters of smells through the very wide definition of "air pollution" set out in section 4 and section 24 (2). It forbids emissions which cause a "nuisance". Local authorities and the Director of Public Prosecutions will be able to use the provisions of this Bill to prosecute in relation to smell nuisances. The higher penalties provided under this Bill will be available in relation to any conviction.

Acting Chairman

Is amendment No. 37 withdrawn?

At present, in certain circumstances, there is little limited power to a local authority to deal with this. I mentioned yesterday evening specifically the case of a moving vehicle. I realise, and accept what the Minister said yesterday evening, that there is provision to deal with a specific location within a town, let us say. We have encountered the problem in my home town when a truck periodically passes through the town; it is not the only town to encounter such problems. Animal by-products are transported in this truck which causes a very offensive smell. Many people feel that if the vehicle were properly covered this smell would be eliminated. There are problems encountered with firms at present, that it is not possible to do everything they would like in regard to the conversion of trucks and so on.

It must be remembered that by-laws have been passed by the urban council. But, in order to prosecute the offending party, it is necessary for some individual to actually see the truck, to experience the nuisance and then to be prepared to give information and go into court in that regard. It is not easy to do that because people cannot be awaiting the arrival of this truck. There is a certain amount of sympathy for the firm involved. Is the Minister saying there is a specific provision to cover the problem caused by moving traffic? If there is, then I am satisfied. It appeared to me that our amendment would deal specifically with that problem.

I agree with the Minister that "smell" is not covered in section 107 of the 1878 Act. That is why we put down this amendment.

This Bill does not deal with mobile pollution; it is pollution from stationary sources only. I dealt with that at length on Second Stage. There are other areas where perhaps this problem should be more properly dealt with. We are revising the road traffic legislation. This is a matter we will bring to the attention of the Minister in that regard. Also we are updating the by-law provisions of local authorities in relation to smells from animals and offal being transported through towns and at slaughterhouses. The Minister for Agriculture is drawing up slaughterhouse legislation at present. We will bring to the notice of the relevant Ministers the points Senators have made. I agree; they all contribute towards pollution and nuisance factors but we precluded mobile sources of pollution specifically from the provisions of this Bill.

Does the Minister not feel that is a serious defect in the Bill? We have a serious pollution problem. Those involved are not concerned whether the cause is stationary or mobile. At present there is insufficient legislation to deal with the problem. Indeed this problem applies to many more towns; it cannot be resolved. Clearly it is within the ambit of air pollution. The question of whether it arises from stationary or moving traffic is immaterial. Perhaps the Minister could reexamine the Bill ascertaining whether it would be possible to deal with this problem. I will not say it is a very widespread problem but it is sufficiently widespread to be of considerable interest and concern.

I take the Senator's point but provision for it will not be made for in this Bill because it is more properly dealt with by a different code of law. Quite frankly, if the Road Traffic Act provisions were working as they should be we would have no need to discuss the matter here today. Perhaps we need to turn our attention to the deficiencies in that Act rather than duplicating it in this Bill. It would help the pollution problem if the provisions of the Road Traffic Acts worked as they were intended to, but that has not been the case. This is modelled more on planning legislation and deals specifically with stationary or built structures.

I would be very sympathetic towards Senator Fitzsimons' point of view. Even if the Road Traffic Act provisions were working as we would like to see them working or if the regulations governing the Road Traffic Act were enforced, we could reduce that pollution.

Road traffic users are not the only mobile polluters. Such pollution can arise in areas close to airports where there may be a lot of air traffic — for example, at Baldonnel or at Leixlip, where there is a private airport, or in or around national airports where there is ever-increasing air traffic. Aircraft and helicopters operating from these areas can add greatly to the pollution of the air and push beyond the limit.

It is a pity that moving vehicles or polluters are not dealt with in the Bill. It is my personal opinion that the greatest cause of pollution in Dublin today is our public road transport. I will not go into any detail on this. I am sure the Minister, who has an office in an area where I occasionally stand awaiting a bus will know what I am talking about. I know that I feel its polluting effects for the half hour or so I stand in St. Stephen's Green waiting for a bus. It will be evident to any pedestrian, especially those stationary at a bus stop, that one of the greatest polluters in Dublin city today are CIE. I regret to have to say that, but it is true. I compliment the Minister on having dealt expertly with this Bill over the last two days, indeed since its introduction. We would all agree on that. I congratulate her on presenting this detailed Bill to the Oireachtas.

It is unfortunate that, when the Bill is enacted, we will still have CIE operating as they do today, with vehicles which are polluting the air beyond bearable or permissible limits, beyond anything permissible in this or any other city. I do not know if it can be rectified at this stage. Perhaps it cannot. I would ask the Minister not to forget that there is an area not covered by the provisions of the Bill which is of serious concern to people living in this city. Other cities have less public transport — perhaps they have a better public transport or better maintained public transport vehicles — but the greatest polluters in the streets of Dublin today are CIE. There are other private companies who add to the pollution, but none with as many vehicles as CIE. I would like to see some provision in the Bill that would help to reduce that air pollution. I ask the Minister to be concerned about it. If CIE are not accountable under this Bill, then the efforts of the local authority within the confines of the city will be far less effective on account of CIE being permitted to perform as they have been over the past eight or ten years with vehicles giving out an emission that is polluting the air. It is my personal opinion that they are the greatest polluters in Dublin city today.

I thank Senator McMahon for his kind remarks. All contributors to this debate, particularly those now present — Senators O'Toole, Fitzsimons and McMahon — have shown a tremendous commitment to a betterment of our environment for all our sakes, whether for human health or the health of our environment. Apart from putting into place the correct procedures and machinery for looking after our environment in relation to air pollution problems in the years to come, I hope this debate will help to raise public consciousness. Tragically, in all of the areas of pollution, we all hold the cure if only we could all be more aware of how our untidiness and lack of concern affects our neighbours, visitors and generally is costing the country dearly.

As some time has elapsed since the Second Stage debate, I might quote from my speech in relation to this issue which is causing some concern. On 23 October 1986, as reported at column 862 of the Official Report, I said:

First, it is a fact that neither in Ireland nor in many other parts of the motorised world have road traffic controls by themselves been especially effective in achieving environmental objectives such as better air quality. This is why at EC level, and within other international environmental bodies, the emphasis is now on vehicle emission controls which will not principally depend on driver behaviour.

Limitation of vehicle emissions is now being approached primarily through controls on fuel inputs and on vehicle design. The present Bill, through Section 53, will be fully competent to provide environmental regulation of all vehicle fuels. Already, the permitted lead content of leaded petrol has been reduced this year in Ireland from 0.4 to 0.15 grammes per litre and unleaded petrol has recently been introduced on the Irish market.

I accept the concerns being expressed by Senators in relation to this. It is true to say that the provisions of this Bill have been designed principally to deal with emissions from stationary sources and do not attempt to take over the powers which exist already under the Road Traffic Act to control emissions from vehicles. Regrettably, the powers that exist under the Road Traffic Acts have not proved very effective. I take the points made. Perhaps tightening up of other legislation might be the correct procedure to achieve what we all desire in relation to this.

Amendment, by leave, withdrawn.

I move amendment No. 38:

In page 37, before section 58, to insert a new section as follows:

60.—(1) The Minister shall make regulations under this Act prescribing—

(a) emission limits for road traffic exhaust fumes, and

(b) provision for the checking at regular intervals of vehicles to ensure compliance with the limits referred to in paragraph (a) and the issue of certificates of compliance for each vehicle where appropriate.

(2) A person who is the owner or in possession of a vehicle which fails to comply with the regulations under this section shall be guilty of an offence under this Act."

This amendment is eminently suitable in the light of Senator McMahon's request and is also geared to all our concerns. Is it possible for the Minister to amend the Bill to take into consideration moving vehicles rather than stationary vehicles or objects? She might do so by way of reciprocating our cooperation in accepting all her amendments. It would be a good day's work if the Minister could amend the Bill, whether now or a later stage, by way of incorporating this amendment. It is necessary. Senator McMahon dealt very ably with it. He lives in the midst of it. I am lucky enough to be able to move out of that atmosphere from time to time and I come back reluctantly into it. Finally I ask the Minister to try to accept amendment No. 38. It is necessary for everybody concerned and I have no doubt the Minister will be sympathetic towards it.

I agree that Senator McMahon has highlighted a very serious and considerable source of pollution. I have followed the case made by the Minister but, particularly in an urban and city context, pollution from this source could be more considerable than from domestic dwellings in relation to the level of emissions. There is provision in the amendment to deal with the emissions, to ensure that there will be periodic checking of vehicles and to provide substantial penalties where this is not carried out. Even though the Minister may say traffic legislation may be the appropriate place to do this, in many areas we have cross-references and while there may be a delay in bringing in legislation with regard to traffic, we have an opportunity now in a very simple way to deal with this problem. I ask the Minister to consider it.

I answered the substance of this amendment while I was answering the last amendment and Senator O'Toole would perhaps agree with that. He is only too well aware of my views on it at this stage. I regret I must oppose this amendment. In relation to the "balance of co-operation"— I remind him that I have taken on board the substance, if not exactly the wording, of some of the amendments put by Senator O'Toole and Senator Fitzsimons. Ultimately my only concern, much as I would like to make co-operation one of my priorities, must be that we produce legislation that will be effective, that will have teeth and that will do the job in preventing air pollution as far as possible and ensuring a clean, healthy environment for all of us and our children to enjoy in the future.

I oppose this amendment for the reasons I made clear. I must reiterate also that it is unnecessary and would duplicate powers already available to the Minister for the Environment under section 11 of the Road Traffic Act, 1961. While I appreciate and share the concern of the Senators who tabled this amendment about the proper control of vehicle emissions, when all the current measures are fully implemented there will be an ample legislative base from which to control such emissions.

Amendment, by leave, withdrawn.
SECTION 58.
Government amendment No. 39:
In page 37, line 28, to delete "Nothing", and to substitute "Save forsection 28 (4), nothing”.

This amendment is necessary to reconcile the otherwise absolute and competing claims of section 28 (4) and section 58 (3). Section 28 (4) gives absolute force to an order of the High Court notwithstanding the terms of any permission given under any other enactment in relation to a premises. Section 58 (3) gives complete immunity to the Safety in Industries Acts, 1955 and 1980, which involve licensing of premises in relation to the whole of the present Bill. The amendment ensures the supremacy of a High Court order.

Amendment agreed to.
Section 58, as amended, agreed to.
First Schedule agreed to.
Second Schedule agreed to.
THIRD SCHEDULE.
Government amendment No. 40:
In page 39, to delete lines 48 and 49, and to substitute the following:
"28. The getting, raising, taking, carrying away and processing (including size reduction, grading and heating) of minerals and the storage of mineral wastes.".
Amendment agreed to.
Schedule, as amended, agreed to.

I want to ask a question about the amendment from Senator O'Toole and myself with regard to noise environment which was disallowed. It is a very important area. Would the Minister agree that it is very important to introduce—

Acting Chairman

I am sorry, but if the Cathaoirleach disallowed it I cannot do anything about it.

I simply want to ask the Minister would she agree that noise abatement legislation is very necessary in relation to the control of pollution? Would the Minister assure us that the Government have it in mind to introduce legislation with regard to noise control in the immediate future?

I would not like to state that we will have legislation in relation to noise control in the immediate future. It is planned and we will have it but I would not like to give any indication as to how soon it would be introduced at this stage. We already have limited control under section 51 of the Planning Act in relation to noise.

Title agreed to.
Bill reported with amendments.

Acting Chairman

Next stage?

I am sure it is the wish of the Minister and all Members of the Seanad that this Bill which was presented to this House in February last should become law as soon as possible, certainly before the end of this session. It is not yet certain when it will be possible to take Report Stage. We should allow ourselves the maximum flexibility by ordering Report Stage for Tuesday, 9 December though the probability is that it may be taken during the following week.

Acting Chairman

Is that agreed? Agreed.

Report Stage ordered for Tuesday, 9 December 1986.