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Seanad Éireann debate -
Thursday, 18 Apr 1991

Vol. 128 No. 8

Environmental Protection Agency Bill, 1990: Committee Stage (Resumed).

Debate resumed an amendment No. 11:
In page 8, subsection (1), between lines 20 and 21, to insert the following:
"‘environment' includes——
(a) ecosystems,
(b) all natural and physical resources,
(c) the social, economic, aesthetic and cultural values of the environment,
and ‘ecosystem' means any system of terrestrial or aquatic organisms within their physical environment.".
—(Senator Doyle.)

We were dealing with amendment No. 11. Amendments Nos. 11, 17, 18, 24 and 25 are related and are before the House for discussion. I now call on Senator Doyle to speak to the amendment.

We were putting a point to the Minister in relation to the definition of the word "environment" given that we were talking about the Environmental Protection Agency Bill. Indeed, I think we were discussing several amendments if my memory serves me correctly. They had all been moved at this stage so we can talk to them all. I have a definition of amendment there which includes——

For clarification, Senator Doyle, only your amendment had been moved, but all of them can be referred to.

The point I was making yesterday was that a Bill such as the Environmental Protection Agency Bill at the very least deserves a definition of "environment", which is what the Bill is all about. Again, I offer the Minister a definition; there are many of them. It has been suggested that the definition should be restricted to the natural environment only. That may be more suitable, but the principle we would like the Minister to take on board is to accept the inclusion of a definition of the environment in this section.

I spoke regarding amendment No. 25 yesterday but I did not move it. May I now move amendment No. 25?

Only one amendment can be before the House. You can discuss it now and move it later, but there cannot be any further discussion after you move it because it will already be deemed to have been discussed in the context of amendment No. 11.

What we are looking for is clear definition of the term "environment". My amendment, and the other amendments, are trying to establish precisely what is covered. We look forward to the Minister's reply on that.

We touched on this yesterday — the need for a definition of "environment". I listened to the debate yesterday and I made a contribution. I looked very closely at the Bill last night. I have also looked at the UK legislation and what I have of the US legislation. I want to say firmly that it is an error not to have a definition of the environment. It makes no sense, it is illogical. I would ask the Minister to be open on this matter.

The Long Title of this Bill is "to make further and better provision for the protection of the environment". That is the first item on it. I cannot imagine a Bill setting out to protect something that does not tell us what the thing is. It is illogical; it does not make any sense whatsoever. I have tabled an amendment which we will come to eventually on my definition of the environment. I am not for one second saying that is the one that should be taken. I have put it together and I have made it clear how I put it together, because I took what was in the Bill here and I looked at what I found in the UK legislation. I tried to put them both together and cover all the areas. That is how I thought about it. I make no apologies, I just want people to understand. I am not saying it is the definitive definition of the environment.

When dealing with similar legislation in other countries they have found it necessary for legal reasons to deal with a definition of the environment. I would also put to the Minister that at the end of section 108 there is a definition of the environment which states: "environment includes atmosphere, land, soil, water and all living organisms". That is a definition, but only for the purposes of that section. Section 4 states: "environmental medium includes atmosphere, land, soil and waters". In every other piece of legislation I have ever read, the atmosphere, soil, land and water, are considered to be different environmental media. A "medium" cannot include all the different media or else everybody else in the world has got it wrong. At the very least, it is not correct grammatically. I raise that point because I believe we have to change the legislation in any event.

Will the Minister say why the drafters of the legislation have found it necessary to say on page 79 of the Bill "atmosphere, land, soil, water", not saying whether that is singular or plural, whereas on page 10 it becomes "atmosphere, land, soil and waters". There is no reason in the world why both should be different. It is sloppy to have "water" on one page and "waters" on another. I hope the response of the Minister is not going to be a justification of what is there. The Minister is being quite clear that she is open to change. Without a doubt this is a flaw in the legislation. It is something that will create legal discussion in planning authorities and anywhere where they come around to appealing against the licensing sections. When it comes to that, this will be used.

On page 79 of the Bill the words "all living organisms" are included. I know it is important for the purpose of section 108 to refer to organisms at this point, but if living organisms are part of the environment then they should surely be included in environmental media also. Further, it is incorrect to describe atmosphere, soil, land and water as a "medium." They are all separate environmental media and in any other discussion whose reports I read they are all described as environmental media, each one being an environmental medium on its own. It seems to me the Bill is flawed. We are setting out to protect an environment that we do not identify.

There are a number of different amendments down, some of which include architecture. In my amendment I have added the word "air" to "atmosphere". I do not believe that the words "atmosphere" and "air" are interchangeable. They are two different things. I know that in the UK legislation it was found necessary to refer specifically to the air in man-made buildings and in other structures above and below ground. The reason for that is quite simple. The definition of the atmosphere refers to that envelope of gases surrounding the air, rather than below the air or within the air. It is all fine to say what we might feel it should mean or it is meant to mean, but there is a serious flaw in the Bill without a definition of the environment. I am not going to go to the wall as to whether the Labour Party proposal to include buildings etc. is accepted. Senator Norris raised the point yesterday that it is a decision whether you want to include it or not. That is not my point. My point is that we need a definition of environment.

The other issue I would raise with the Minister is: where are the references to "environmental medium" throughout the Bill? Where are the areas where the definition of "environmental medium" becomes an issue? Why was it found necessary to list and to define "environmental medium" and not found necessary to define "environment"? The Minister has made that definition on page 79 — not very well, but it is done. The list on page 79 is different in two ways from the list on page 10. I think I have said enough. I can assure the Minister that it is both a drafting flaw and a legal flaw and it needs to be addressed.

I would like to support vigorously what Senator O'Toole has said. It seems to me very obvious that there must be a definition of "environment" in this legislation for the reasons he stated. The Bill purports to create an agency whose responsibility it is to protect the environment but unless you know what the environment is you cannot protect it. How can you possibly protect a nebulous entity?

I know that the confusion probably springs from the fact that "environment" and "environmental" are what are now described as buzz words. They have entered the language so insidiously that everybody assumes there is consensus about what they mean, but it is a vague, fuzzy consensus. This is particularly well illustrated by the fact that a number of Senators from different parties have put down what amounts to definition of the environment which are at least subtly different, so one cannot assume a general consensus about the meaning of the word "environment". That is very clearly illustrated in the different definitions given. They may have a common basis but some people leave out certain elements and other people put elements in.

I believe it is essential that there should be a definition of the environment. I am not going to go on at length about it because I think the argument has been extremely well made by Senator O'Toole. I would like to concur with him with regard to his grammatical difficulty. He is perfectly right again, of course. All these words —"earth", "air", "water" and so on — are not only media in their own right; they are actually elements. It is elementary to understand. Earth, air and fire and water elements.

It is a slightly antiquated definition of an element.

They are elements, according to the classical definition of what is an element. It is not biblical. I think it is important to make that point, that they are very fundamental things. They are not only media, they are elements.

In an ideal world we would have wished to put in a definition of the environment but, as the host of amendments suggest, it is difficult to get one that satisfies. We define the environment in terms of environmental medium, or perhaps we will gave way to media. If we talk about the principle here for a moment rather than the actual grammar, English or whatever, we defined them in terms of environmental medium and environmental protection. This is exactly as it is in the UK Act which was referred to extensively yesterday.

In relation to some of the functions of this Environmental Protection Agency, it has a particular role in relation to licensing and so on. It is not going to take over from the planning system. It is not going to take over the functions from the wildlife service. It is not going to take over flora and fauna and a number of things of that kind from the Office of Public Works. Some may argue it should. We are not throwing the kitchen sink in here. This is not an agency that is going to do everything as far as every function that has to be attended to in relation to the environment is concerned. Therefore, it is impossible to get a definition or to devise a set of words that cover all situations. In relation to licensing, we have a particular role for the agency; in relation to monitoring we have wider role for the agency and in relation to state of the environment report, we want them to be as wide as possible.

What I would like to do, in the context of the state of the environment reports or environmental monitoring, is to put in a particular definition that applies to those sections where the agency is to have a very liberal and wideranging role. If we put it in at the beginning and it applies to matters such as licensing, it will require us to go right through the Bill again and start distinguishing which aspect of the environment applies here and which applies there. I am advised that would be very difficult. We consulted the parliamentary draftsman and he advised that because of the particular functions we are assigning to the agency it was preferable to define it in terms of environmental protection and environmental medium.

In relation to Senator O'Toole's reference to air and atmosphere, I am advised that in all the legislation "atmosphere" covers the air and the wider atmosphere and that "air" is much more restrictive.


Allow the Minister to continue, please.

I am advised that "atmosphere" is a much more encompassing term to use than to use "air". Maybe the Senators would take the view we should use "air" and "atmosphere". I will have to consult and see if that is either necessary or desirable.

In relation to section 108, it is right for the purposes of that section that we have used a definition of the environment. The reason we have done that is that we have used this Bill, as I said yesterday, as an opportunity to bring us into line in relation to the European directive on genetically modified organisms. That is why we used a definition there, because we had to. To some extent that section is actually irrelevant to the Environmental Protection Agency. We just happened to use this opportunity to bring the law into line, as we are required to do in any event.

It is very hard to argue against putting in a very clear definition that will apply throughout the Bill, but because in so many respects the agency has a very defined and particular role, and in particular because we have a separate planning system, we have to give it a defined role. I do not think anybody has suggested we take over the whole planning system. What I would like to do in relation to Report Stage, or maybe by the time we get to that section is to bring in amendments in relation to particular sections where we might be able to apply a definition of the environment, particularly as far as state of the environment reports and so on are concerned. I do not know if that would be satisfactory. That is the best we can do, given the particular functions we are assigning to the agency.

Senator O'Toole referred to the UK Bill. I am advised the definition we have accepted here is exactly in line with that.

I would like to make a comment on this. It is a comment that has been in the back of my mind for some time but I will make it here and now, once and once only. For the second time the Minister has referred to using this Bill as a kind of portmanteau Bill which can also contain legislative material that is really included at the behest of the European Community. I would like to express some reservations about this method of legislative procedure because I think the Minister has indicated this has led to some degree of confusion. It may well be that the practicalities of the situation, politically speaking, mean that it is a very useful thing to do because it saves time and it means the legislation actually gets passed but I would have to say I deplore it. I think it is a great pity that material that the Minister has indicated is not really quite directly relevant, not entirely germane to the Bill, is included as an afterthought. As this obviously creates some difficulty of definition, it would be better in the future to avoid this by introducing a specific Bill dealing with genetically altered organisms or whatever the subject is. I really think this indicates a degree of sloppiness.

The Minister has a genuine problem in defining the environment. It is a very difficult thing to do. No matter what definition is provided it is going to be possible to pick holes in it. For example, water is mentioned here. What is water? Is it the chemical H2 O? Is it water which comes out of the tap? Is it water which contains a whole series of other items? Soil contains water, for example, and on you could go. It is a very difficult one.

Our own party are concerned at the more broad questions in relation to extension of the definition of the environment to include items such as architecture, cultural heritage and so on. That would be our primary concern. I hope I am correct in interpreting the Minister as saying that she is prepared to look at the definition of the environment and perhaps make some modification in view of the criticisms which have been made here this morning. Whatever definition is finally produced, it will be of necessity open to the variety of differing interpretations and, of necessity, to some extent it will be ambiguous. Other than that we are going to fill it up with a whole series of chemical terms which will mean nothing to most people anyhow.

I want to place firmly on the record that I have just read the UK legislation and it is not the definition in that legislation. I will read it into the record if you want. I know that my amendment was taken from the second part of the definition of the environment in the UK legislation — that is where I got it. What the Minister has used is the first sentence from the definition of the environment in the UK legislation and she has not used the second sentence. It is incorrect to say it is the UK definition; it is not.

I want to make it clear to the Minister that the point at which I decided there should be a definition of the environment in this Bill was when I came to read section 67. I did not notice it until that point, until it came to the state of the environment report. I wondered what we were reporting on. Then it struck me that we did not have a definition of the environment in the Bill. When I put down an amendment to section 67, which is now on the record, I saw that sections 3 and 4 of the Bill stated "in this Act unless the context otherwise requires, the words mean ...". That knocks the bottom out of the Minister's argument. She had difficulty defining environment because it only had to do with licensing. I would go along with that argument. I accept the point that it needs a different definition in each section, but I have made a logical sequence of points that this issue has to be addressed.

First, in relation to the UK definition, I do not say we have exactly the same wording but I think it equates with the same principle, except they go on to talk about air within buildings and so on and I would like to hear arguments in favour of that. I have no problem with trying to separate how the environment applies to different sections. Perhaps we will be able to come back with something on that. My difficulty is that because this Bill is not taking on board the cultural and aesthetic environment, is not taking over the planning system, the responsibilities of the Heritage Council or the Wildlife Service and a whole host of other things that have environmental implications and a huge environmental role, it became very difficult at the beginning. We consulted the parliamentary draftsman on that.

I understand the gist of Senator O'Toole's argument, that what ever it is to apply to, in the sense that it is going to apply throughout the natural environment, perhaps instead of using "environmental medium" we might say that the environment for the purposes of this Bill is the following and try to divide it. That is possibly a very big task and I want to discuss it with my advisers and come back later, rather than arguing about something on which there is not very big disagreement. Senator O'Toole said he would be quite happy to have separate definitions applying in different sections, trying to keep the legislation as tidy as possible, realising the particular role, and sometimes limited role, we are giving to the agency. For example, in relation to licensing, it will have a very specific licensing function. Therefore we must make sure that we do not widen it to such an extent that the agency's role becomes so diffuse that it defeats the purpose for which we are establishing it in the first place.

I thank the Minister for coming down the road with us. I still feel strongly that we need a definition of the environment in the interpretation section, section 3, and I might differ slightly from the emphasis Senator O'Toole puts on it. I would like some advice from the Acting Chairman on the logistics. I am quite happy to leave the debate to be resolved to Report Stage, provided we are in a position to rediscuss these amendments then or if the Minister was in a position to tell us that she would have a Government amendment that might better express what all of us are trying to say here. But I do not want to find us on Report Stage being ruled out of order on some technicality because something was not in place to allow us to discuss or re-enter amendments. I have seen this happen before. I would like some guidance to ensure we are in order on this issue.

My understanding is that, provided the matter is not pushed to a vote at this point and not withdrawn it can be raised again on Report Stage.

I have a feeling — we are trying to tease this out — that what the Minister may come up with will be a mixture or slightly different from the amendments we have down, so we would then need a Government amendment or an indication now that the Minister might bring in something on Report Stage.

If it is possible I will do that.

I am advised that if the amendment is withdrawn it can be discussed again on Report Stage.

I propose to move amendment No. 24 and withdraw it.

Acting Chairman

Will Senator O'Toole leave it until the appropriate stage to do that?

I know Senator O'Toole has taken this definition from the UK Act and we have tried to make contact with the English authorities in relation to this. I would like to hear the arguments in relation to the air within buildings and so on.

The question is what is meant by the atmosphere. The difference of opinion is whether the words "atmosphere" and "air" are interchangeable. The elements within air change at various stages of the atmosphere and the word "atmosphere" is not the same as "air"— nobody would dream of trying to breathe air at 50 miles up but the atmosphere still exists there. The atmosphere itself would have five different levels — troposphere, stratosphere, mesosphere, thermosphere and exosphere. Various changes take place within these levels. The question was raised by Senator Upton: is water H2 O? The level of oxygen in the air usually varies about 20 per cent, but when we go through the atmosphere to the stratospheric stage, the point at which one of the elements of oxygen is taken from 03 to become 02, the remaining amount of 02 merges with some of the other gases to create the ozone gas. That is a critical part of the atmosphere and I accept that that is covered by the gas; but that is not air. Ozone is not air. Air may be part of the atmosphere at different levels as you go up. That is an arguable point. What is much more critical is this. If you take a building which is below ground — this is what happened in the UK — it could not be argued that that is the atmosphere. The atmosphere is the air surrounding the earth above the earth. I could go on for a long time on this. The various elements of gas which make up air are different to the atmosphere. If the air is 78 per cent nitrogen and 20 per cent oxygen and the various inert gases, Krypton, that change at different levels of the atmosphere, air and oxygen are definitely not interchangeable. Atmosphere is more all encompassing than air, but they are not interchangeable.

The question arises whether the air below ground and the air within buildings is part of the atmosphere. My understanding is that that is how it came to be changed in the UK legislation. I have taken their arguments more or less as I found them. My critical point is that there should be a definition of the atmosphere. "Atmosphere" is a more all encompassing word than "air." The air itself and the mixture of gases which create the air change at different levels of the atmosphere. The question whether air within buildings, air below ground, air in manmade structures in various places is part of the atmosphere is a debatable point.

Acting Chairman

We thank the Senator for that very informative lesson this morning.

On a point of information, at which rarefied level is the Senator speaking now?

I am glad he confused Senator Murphy, because what chance have I? The Minister, Deputy Harney, says she intends coming back on Report Stage in relation to some of the amendments from my colleagues here this morning, I am quite sure she means that. Like Senator Doyle, I would be very strong in condemning any Minister who said she would come back on Report Stage and did not do so. Even from this side of the House I would not allow that to happen.

The Minister is not in a position, setting up this legislation and this agency, to take over all the other systems that are already in place, such as the planning system and others she referred to in her last address. I do not want to be flippant, but Senator O'Toole when he was going through the air might have hit hot air at some point. Like myself, he hits it at times but comes down again. In fairness the Minister has tried with her draftsmen to deal with the problems. I had hassle yesterday over changes to the Title of the Bill to make this relevant to everybody outside. My colleagues on the other side all seem to have a deep concern about the inclusion of this at an early stage in the legislation. Perhaps therefore the Minister will go further at this point since there are worries about leaving it to Report Stage. There was reference to the English legislation, which Senators Doyle and O'Toole are saying is not the same as this legislation while the Minister is saying she has read it and that it is nearly the same. I would like to hear the Minister's contribution before we move on.

Could I just say that I think in Senator O'Toole's contribution we have a very clear and good example of precisely what the Seanad is about, because it was a learned contribution to the debate and I certainly found myself very much better informed after it. It was clear, precise and factual and the kind of contribution we have had here today helps to justify the existence of the Seanad because it teases out a series of points with regard to the Upper House——

Acting Chairman

Could the Senator keep to the section under debate?

I am just simply talking about the amendment and the way in which it was addressed.


Acting Chairman

These are very serious issues. We are taking quite a substantial amount of time on each amendment and it is very important that we deal with it.

The point is that to dismiss what was said jocularly as being hot air does not do justice to the contribution made, which was very clearly informative. There is a real point here in terms of definition, the question of air, atmosphere and so on and particularly this question of manmade buildings and structures that may lie below the surface of the earth, because as modern life becomes more and more complex there may very well be more and more of these constructions in which people are expected to work and to live. It is important in terms of our responsibility to people who may have to work in this kind of environment that the Environmental Protection Agency should be empowered to monitor conditions. I am not going to go on interminably but I would like to mention the question of sick building syndrome that we have had. Perhaps this is the kind of thing that Senator O'Toole may have had in mind and that the Minister may be interested in, buildings already above the ground. The Civil Service has had to move out of one because the environment — to use the word loosely — in which they were working was atmospherically polluted. The ratio of the gases which the human organism finds uncomfortable to breathe became polluted. For that reason Senator O'Toole's point is well made.

I, too, listened with interest to Senator O'Toole's learned exposé. Whether or not the inference drawn from it by Senator Norris that it was a justification for the Seanad is another matter entirely. I was left somewhat confused after he had finished his exposé, but could I put it in these terms: we could say that at times the air in the Seanad is fresh but the atmosphere is distinctly stale. I would be interested to know how the atmosphere within any building could sustain life in the absence of air.

Acting Chairman

We are getting into a discussion now.

We are getting into a bit of a pickle between scientific definitions and legal definitions and even classical definitions as to what elements might be and what air and atmosphere are. It is quite clear that the air is part of the atmosphere, not in the sense in which Senator O'Toole spoke. I would be interested to know how the Environmental Protection Agency might get to these upper atmosphere layers to protect them. I have visions of an Irish turf-powered rocket ascending to the outer regions of his atmosphere to render protection, but I do not see the need to make distinctions between air and atmosphere.

One thing I would share with Senator O'Toole is on his semantic point about the difference between environmental medium including atmosphere, land, soil and water under section 4 and the slight inconsistency between that and what is in section 108, where water is singular now rather than plural. I share his semantic reservations on that point, but otherwise I would not share anything that he said.

I do not agree with my colleague, Senator O'Toole, and I want to make it perfectly clear why. Air is a specific combination of gases and you could never get even a scientific agreement as to when it ceases to be air.


I know what it is. I am reasonably familiar with the composition of air at this stage in my career.

Acting Chairman

When a Senator is speaking I would appreciate it if other Senators kept their comments to themselves until they get the opportunity to speak, because people making statements and asking hypothetical questions are not advocating an immediate response from the people sitting down beside them. I would therefore appreciate it if in future when people are making a contribution that they would get the opportunity to finish that contribution and the other Senators will have their opportunity when their time comes.

I am very grateful for your protection, Sir. I was beginning to feel quite intimidated down here. It is very easy to intimidate me. It is a serious point. There is no need nor would it be a good idea to introduce the word "air". I am not totally impressed that our colleagues in our nearest neighbouring island chose to do it differently.

The atmosphere is a reasonable word which makes reasonable sense. It is perfectly feasible to talk about the atmosphere of another planet which contains no oxygen at all. "Atmosphere" includes air. If I wanted to get very technical I could say that it is impossible to pollute the air because the air remains there all the time no matter what else you put into it. It is the atmosphere you pollute, not the air, because the same proportions of nitrogen, oxygen, water vapour etc. will be present irrespective of whether you put 100 tonnes of sulphur dioxide into it or not. You will still have the air. It will be the atmosphere you will pollute, not the air. The air will always exist unless somebody foolishly extracts all the oxygen in which case it will not be air and the term "air" is a subset of the atmosphere and entirely unnecessary. We should not bother with it.

In terms of the air within buildings I have said that the atmosphere always includes air and they are not interchangeable. We are in an era of climatic control within buildings. People change the atmosphere within buildings and have set up marvellous machinery and all sorts of air conditioning to do that, air conditioning not atmospheric conditioning.

Think of the ozone layer.

We are adding ozone to the air within office buildings from new machinery. I do not think the atmosphere includes all that but Senator Ryan thinks it does as do other people. I am not saying I am right and other people are wrong or vice versa but people are selling products for air conditioning and environmental control. They are selling products for climatic control within buildings. They are introducing — I choose the words wisely — other elements, mixtures and combinations into the air in order to ensure that they change the mixture of gasses within the air, though it does not become part of the air. I raised this because the Minister asked me for my reasons. I have given the reasons and I am not going any further with it. I am not prepared to go to the wall on it. There are two parts to my amendment. The first is the definition of “environment” and the second extrapolates that somewhat further. The Minister said she is prepared to take on board, as far as she can, the arguments she has listened to today and will look at the possibility of making whatever changes are necessary on Report Stage. I am happy with that.

May I take up one point Senator Dardis made. He referred lightheartedly to a turf powered rocket and suggested that we really need not bother about any element in which we did not physically find ourselves. That is a remarkably Luddite view because I am sure Senator Dardis, on reflection, would realise that quite a lot of activities we engage in on the surface of the planet seriously affect the further reaches of the atmosphere, including the ozone layer. We dealt in the last session with control of hydroflouride carbons and the fact that the dumping of refrigerators, because they release these substances into the atmosphere, can have a serious impact upon the ozone layer. I would like to put on record that Ireland does not need to possess a turf burning rocket in order to affect the ozone layer. It is precisely for that reason that I disagree with Senator Dardis.

The Luddite speaks.

Senator Norris's capacity to misrepresent what other people say never ceases to amaze me. I am just as concerned as anybody in this House with the protection of the atmosphere the ozone layer and so on. I share the concerns the Senator expressed. What is a little difficult to take on board is that Ireland, while it would at every international forum available to it and at every opportunity available to it attempt to see that the atmosphere is protected and defended, would be in a position to scientifically monitor on its own behalf what is taking place in the upper layers of the atmosphere.

Yesterday many of us professed concern about the undue length of time this Bill was likely to take and promised to impose self-discipline. One Senator suggested there should be a guillotine on the debate. It now seems that we have totally forgotten these good resolutions and we are dwelling again and again on points that are marginal and peripheral. We should observe a measure of self-discipline in this area.

For the second day in succession I am entirely in agreement with Senator Murphy. It is becoming like pub closing time where we are drifting all over the place. The Minister should take this Bill to the officials and see if some reasonable definition can be found. Whatever will be achieved will be open to criticism anyway.

When the discussion terminated I proposed a motion and then withdrew it. The Minister asked me to explain my point of view on it and it was on that basis that the discussion reopened.

The Minister should think before she invites people to do that.

I will from now on.

Amendment, by leave, withdrawn.

Amendments Nos. 12 and 13 are cognate and may be discussed together.

We were taking amendments Nos. 11, 17, 18, 24 and 25 together.

No, they were being discussed together but they cannot be dealt with until we come to the relevant section.

Were they dealt with?

Acting Chairman

They can be moved or withdrawn but not discussed when we reach them.

I move amendment No. 12:

In page 9, subsection (1), after "Government" to insert "or a Government Department".

I refer to the definition of public authority. Paragraph (a) states that the public authority means a Minister of the Government. My proposal is to add to that Government Departments. I read the Ministers and Secretaries Act, 1922 and it is quite clear from that, and also from legal decisions in the meantime, that the words "Minister" and "Department" are not interchangeable. It is quite clear that Departments may not do things which only the Minister has power to do. There have been many challenges to decisions which were appropriate to a Minister but were undertaken by Departments or civil servants. I want to cover all angles. I do not intend going on at length about this unless there is a very important reason why the Minister cannot accept my amendment. As far as I am concerned, it is covering precisely the same ground as the Minister intended to cover.

It is my intention that Government Departments be covered. I have consulted the Attorney General in relation to this and I am advised that "Minister" is a corporate entity and it covers "Department".

Amendment No. 13 seeks to insert "or Government Department". As Senator O'Toole correctly pointed out, there is a difference between "Minister" and "Department". We should include that aspect in the Bill. The health boards, the Commissioners of Public Works and a number of other bodies are included. It is only right and proper that "Government Department" should be added. I appeal to the Minister to take that on board.

Amendments Nos. 12 and 13 are absolutely identical, right down to the last comma. Are they not?

Acting Chairman

The decision on amendment No. 12 will cover amendment No. 13.

Is it not more appropriate to put the two names down? There were a number of amendments that I would have put down but they had already been put down by somebody else. Is it not a waste of time to keep putting the same amendments down? If, for example, 18 Senators had put down precisely the same one would we have had 18 amendments?

It is done now.

That is mad.

Acting Chairman

The Senator's observation will be borne in mind.

But not acted on.

There is a reference on page 36, section 51 (2) (a), to the fact that the agency shall keep itself informed of the policies and objectives of public authorities. Whether a Minister can have a different set of policies from a Department is a moot point.

Acting Chairman

The Senator said page 36. Could he identify it a little better than that?

I said section 51 (2) (a). I do not think I can be more specific than that. We are discussing "public authority" on page 9 and public authority is (a), (b), (c), (d) and (e). It is a bit disconcerting where paragraphs come after sections without having subsections in between. I find that confusing. That is why I paused before saying sub-paragraph. It is section 51 (2) (a). There is a reference there to policies and objectives of public authorities. Are the policies of a Minister and the policies of a Department one and the same thing? No self-respecting Accounting Officer in any Department would accept that. The Government would always have their own set of policies which the political head would hope to bring into line with his or her own. It is a fair point.

I am very interested in the Attorney General's definite decision on this. It is fine to say we have consulted with the Attorney General and he says as follows. I do not have my files in front of me but I read an advice by Judge Barrington on the point of law as to whether Departments are different from their Ministers. The thrust of that opinion was to the effect that they were different. The Ministers and Secretaries Act, 1922 or 1924, very definitely gives power to Ministers. There has been challenge after challenge over the last 60 years about whether an official, officer, or Department were exceeding their authority by doing something which was only appropriate to the Minister and whether a Minister can devolve all authority to his or her Department. The answer is they cannot. I do not want to upset Senator Murphy again. I have raised the point validly. I am not trying to score points.

Amendment, by leave, withdrawn.
Amendment No. 13 not moved.

I move amendment No. 14:

In page 9, subsection (1), line 25, after "statute" to insert "(other than the Companies Acts, 1963 to 1990)".

The purpose of this amendment is to remove a defect in the definition of public authority. It would seem that a board or other bodies established by the statute as it stands, includes private companies which of course could be and have been established by statute. I take it that "public authority" in this Bill is not meant to include private companies. The amendment is put forward in order to clarify the position in this respect.

I appreciate the Senator's concern for clarity but I am advised by the parliamentary draftsman that the definition of companies incorporated under the Companies Act are not included in it. Paragraphs (g) and (h) bring State-owned companies which are incorporated under these Acts within the ambit of the definition and serve to make clear that other companies are excluded. The definition used in this Bill is the definition in the Urban Renewal Act, 1986, and the Derelict Sites Act, 1990.

I could not possibly improve on that.

What is the board of directors of a company other than a board established under statute?

It is the definition in the Urban Renewal Act, 1986, and in the Derelict Sites Act, 1990.

How does one establish a board of directors of a company other than under statute, which is the Companies Act? That is Senator Murphy's point. I am not trying to speak for Senator Murphy.

The health and safety authority for example, have a board of directors, as have An Foras Forbartha.

The difference is they are a board established by statute. What is a board of directors of a company other than a board established under a statute, in other words, the Companies Act? Why, as it stands, does it exclude the board of directors of any company that is established under the statute known as the Companies Act?

We are talking about the definition of a public authority.

Without any reference to (g) or (h), (f) in itself is ambiguous in that it could be held to include private companies which, as Senator Ryan has reiterated, could be and have been established under statute. I cannot see why, if a suggested amendment removes a doubt, it should be objected to when no harm can be done by including it, to say the least.

In principle I agree with that but I do not want to add things that are unnecessary. We must take the advice of the parliamentary draftsman. We do not want bad law. I will come back to the Senator. We are advised that it is included.

Amendment, by leave, withdrawn.

Acting Chairman

Amendment No. 15 is consequential on amendment No. 19 and both may be discussed together.

I move amendment No. 15:

In page 9, subsection (1), between lines 34 and 35, to insert—

"‘radioactive substance' means a substance which consists of or contains any radioactive chemical element whether natural or artificial;".

Radioactive substances are a specific environmental hazard. I know there is a separate statutory agency to deal with this area. The agency that deals with radioactive substances, however it is changed under the legisaltion currently passing through the Oireachtas, would be responsible for a scientific assessment of what is acceptable. The Environmental Protection Agency will be responsible for dealing with the environment. It should not be precluded from dealing with the issue of environmental pollution resulting from radioactive material or the discharge of radioactive material. It should be obliged to seek and have regard to the advice of whichever authority are responsible for dealing with radioactive material. To suggest that we can have environmental protection without reference to possible discharge of radioactive substances leaves us in a position where the public will see radioactivity as a separate area for specialists.

People who take on the protection of the environment as their brief should make assessments about discharges of radioactive material on behalf of all of us. They must rely on the best scientific advice available. I do not like the idea of specialists in an area deciding what is good for the rest of us. I do not like the idea of my own profession, chemical engineering, deciding what would be an acceptable level of discharge of various toxic substances into the atmosphere without an external body filtering out the biases all of us have about our own profession's capacity to make judgments. That is the function of this agency.

Part of the need for this agency is to create public confidence so that we can develop industrially and commercially. As regards the handling of radioactive substances public confidence will not be advanced by leaving that to the protection agency. In terms of the ongoing campaign to close down the Sellafield plant, it is important that the brief for alerting public opinion should not be given simply to a specialist scientific agency but should clearly be seen to be a part of the concern of the Environmental Protection Agency. That is the purpose of the two amendments.

I do not want to make an issue of the precise wording of the amendments. It is as good as I can put it. Perhaps in the definition section radioactive material is already included. If that is so, then we will talk about that but perhaps the Minister believes it should not be covered. It would be a serious deficit in terms of public credibility if the Environmental Protection Agency were not responsible for the discharge of or handling in public of radioactive substance.

I listened with care to Senator Ryan. The radiological protection institute is being set up by the Minister, Deputy Molloy. I hope the two Bills will not adopt different attitudes to this very sensitive problem area.

There is also the Marine Institute at another level.

Yes and it would be good at this time if these three Ministers knew what each other was doing in this very delicate area. It is unusual to have three Bills dealing with this very important area. It is important that the three Ministers should talk to each other about this.

I agree with the substance of the point made by Senator Ryan as being both desirable and correct. I have a problem with the definition of radioactivity. It is somewhat too extreme. In natural material there is a certain amount of radioactive material which occurs naturally. I hope that the definition of "radioactive" would be looked at again. Other than that, I fully support the provision.

Senator Ryan has opened up an important area. The principles on which this agency was established were ones of considered independence. In other words, the environmental protection agency is totally independent. I was trying to think of the name of the place in England that produces so much radioactivity and I am so old fashioned I thought of Windscale. It is, of course, Sellafield. As a result of the way in which public agencies have been manipulated in England by the Windscale-Sellafield complex, they would welcome the reassurance of an independent monitoring body in this country whose word on this issue could be believed. I take on board what Senator Upton said that there are naturally occurring sources of radioactivity within quite ordinary materials and so perhaps the definition could be looked at. The Minister may be able to reassure us that this is already being adequately handled in some other agency, as Senator Honan suggested. The main principle is the question of the absolute independence of a public monitoring body. It does not matter very much whether it is the environmental protection agency or the new radiological protection institute.

At the risk, once again of being misunderstood, I had better preface my remarks by saying that we are concerned about protection from radioactive substances. We would all agree on that. If we accept amendment No. 15, we would get ourselves into an unholy mess because as Senator Upton said it covers a naturally occurring radioactive chemical element. I could envisage a situation where we would have to start digging up Connemara or the Wicklow Mountains if we accept that amendment. While the point about protecting our environment against radioactivity is correct, if we accepted the amendment we would get ourselves into a frightful tangle.

I support the principle behind the case being put by Senator Ryan. I look forward with interest to the Minister's response. I would like the Minister to develop the relationship that may or may not exist between the Nuclear Energy Board, soon to become the radiological protection agency, and the Environmental Protection Agency. It is very important that we clearly understand it. My overall understanding of the Environmental Protection Agency is that its main function will be to allay the fears, both real and irrational, of the public at large in this most important area of environmental protection generally. It must be a scientific body whose integrity is beyond the question. Agencies in other countries have rightly or wrongly managed to gain that reputation. To function efficiently and do the job for which it was established, its integrity must be beyond question. I laboured that point in my Second Stage speech. The Nuclear Energy Board is responsible to the Department of Energy. It is a bit like the local authorities operating the water pollution legislation. There is the question of whether they are really monitoring themselves. It should really be a function of the Department of the Environment and I hope it will be looked at in that way. If it is an environmental issue it should be under the aegis of the Department of the Environment and be brought within the ambit of this Bill. We will develop later why control of the environment in relation to estuaries, harbours and the foreshore is left with the Marine Institute and is not part of this Bill either. That is an important part of our environment as well.

There are other areas which occur to us that are not encompassed in this Bill. That is a cause for concern because I felt it was all-encompassing in terms of environmental protection. I take the points made by Senator Dardis about difficulties that could arise about natural radioactivity and misinterpretations that may arise but nonetheless the points put by Senator Ryan are valid.

You must remember that those definitions do not exist in a vacuum; they all relate ultimately to the issuing of integrated pollution licences in the process of environmental protection and with what is called environmental pollution. I am aware of the existence of natural radioactivity but if we exclude naturally occurring radioactivity from controls then we will run into habits that have already begun to exist in some countries where the level of naturally occurring radioactivity has exceeded what are accepted to be the permissible levels. That has happened in some of the Scandinavian countries where because of their climate the use of extensive amounts of insulation material has resulted in background radiation in domestic homes being in excess of the safe levels.

Radon gases?

Yes. Therefore, naturally occurring radioactive substances cannot be excluded. In terms of the credibility of the environmental protection agency, in reply to Senator Dardis, to suggest to the public that an agency responsible for preventing environmental pollution would have no function in dealing with the discharge of radioactive substances will not convince the public. A huge part of this country's problem is not actually because the environment is in a mess, because it is not, but because the public no longer trust anybody to protect the environment in its present condition. We do not have an environmental crisis here. We have an enforcement and credibility crisis about our environment agencies and excluding the whole area of radioactivity from the ambit of the environmental protection agency will not convince the public that credibility is being restored.

I cannot accept this amendment. As Senator Honan said, a separate radiological institute is being established under the Radiological Protection Bill. These are separate areas of expertise and we cannot duplicate scarce public resources. If we did not have a separate Department of Energy, if we did not have a new independent radiological protection institute being established then, obviously, it would be a different matter. However very different expertise will be involved in both. That, too, will be independent. Obviously, at various times this agency will have to consult and work with the radiological protection institute. As outlined in sections 77 and 78 and again in section 54 they will not be totally separate obviously there will be much formal and informal contact between both the Marine Institute and the radiological protection institute when they are established. In my view in the context of having a separate agency to deal with radioactive waste, it is not desirable to give a role to the environmental protection agency, as suggested in the Senator's amendment.

The Minister is playing one part of the environmental protection agency's role which is its scientific expertise but it will have no more scientific expertise than currently exists in the country. It will not create new levels of expertise, nor create new levels of anything that does not currently exist. It will simply give us a new vehicle to do things in a way which we hope the public will learn and come to trust. That is the issue the Minister did not address. I appreciate the need for a careful liaison between the environmental protection agency and the national radiological protection institute when they are set up. Of course, there should not be duplication but it is not the same thing to say that the environmental protection agency will not be the body the public should turn to if there is a problem about radiological pollution.

One of the great objectives of this Bill is to give the agency the perceived independence of the scientific lobby, the political lobby, the business lobby and the industrial lobby. That will convince the public that if this agency says something is safe then that is the best scientific information available. You cannot hive off one of the most delicate and sensitive areas, which is radioactivity, and say in that case it will not be this independent credible agency with powers of enforcement which we have set up to protect the environment but some other body which knows better. There is the important matter of strong public concern.

For instance, if we decide at some stage to move in the direction of nuclear power, which I hope we will not do, then obviously the environmental threat from a nuclear power station will be dealt with by the radiological protection institute, The problem is that many of those who are expert in the area of radiological protection have been less than convincing in dealing with the public on the issue of nuclear power. Most of them have trooped in happily behind the nuclear power lobby without much thought.

I genuinely believe, therefore, that the acceptability of this agency doing the job it is set up to do will be severely damaged if the public are not convinced of its broad ranging powers and if this specific area is handed over to a less visible, less independent and less publicly-assertive agency than the environmental protection agency.

If there is pollution as outlined in this section what will the public do? They will turn to the agency and they will expect the agency to be able to take effective action. I do not know if the national radiological protection agency will give the same sort of public confidence but unless something like this is inserted, the agency will have no jurisdiction. I believe we will regret this and that it will lead to the agency being undermined. It would be no harm to put it in; if it is not required so be it, but if it is inserted the agency can use the powers if necessary.

I agree with the two previous speakers. The exclusion of radioactive materials from the brief of the environmental protection agency will, of necessity, damage its credibility. Radioactivity is a particularly sensitive matter with the public. It is very badly understood by the scientists, in particular, the long term effects of low levels of radiation are especially poorly understood. The findings from Sellafield and the clusters of various disorders that are now beginning to manifest themselves are understood at a very basic and initial level. This is ongoing and if radioactive matters are excluded from the domain of the agency than I believe the public will lose some credibility in this agency. The agency is now perceived by the public as being very important and having great credibility in terms of its capacity to protect it from matters of which they are afraid and do not understand in relation to developments in technology, science and so on.

Senator Ryan has made a case. I feel strongly that the independence of the agency is an important element. Looking across the water at the English experience, as obviously the Minister and her staff have done, the experts in this field have not uniformly distinguished themselves by their independence. This is a highly specialised, technical field and it seems to the lay person, like myself, that too often those persons who have expertise in the field of nuclear energy have a vested interest in the nuclear industry and are inclined to be protective of it. They do not always tell the full truth to the public. This is a suspicion I have. It is certainly a suspicion held by many people in England. For this reason it is very important that the environmental protection agency has some role in this area because it will guarantee independence to the public.

I was interested to hear the Minister say that there may be some kind of relationship between the radiological institute and the environmental protection agency. Perhaps she could be more specific about the nature of this relationship because fears could be assuaged if, for example, there was public concern about emissions from some factory, and it does not actually have to be a nuclear generating station. There are other industrial processes such as hospitals that may produce waste material that is radioactively contaminated. Radium needles and all this kind of stuff may disappear, causing concern to the public. Is the Minister saying, for example, that if there was public concern about this kind of discharge the environmental protection agency could require or commission a report from the radiological protection agency, or whatever it is called? Have they the power to say there is public concern and that they are the environmental body? Can they point out the impact on the environment of this particular process even though it is specifically within the remit of the other radiological agency? Will they require a report on it to consider its environmental consequences? If the Minister could convince me that that was the case, then I will be moderately happy.

Another matter I would like to take up is an interjection from Senator Doyle. She spoke what was in my mind. While initially I was impressed by what Senator Dardis said, and I think there is some substance in it, we must be very careful with those definitions. Otherwise we could find ourselves dealing with a whole load of natural substances. Everything, more or less, is radioactive in one way or another. Very few things are totally radioactively inert. Radon gas is an obvious one and is something of which we were unaware. I was unaware of that until the last few years. It is naturally occurring but it is a hazard. I understand that, for example, sites for houses, certainly in America, are now being routinely scrutinised because of the danger. There is a detectable increase in cancer if houses are built in certain locations because of the increased presence of radon gas. This is a naturally occurring element but it has been found that it exposes the human being to an increased risk of cancer. That would seem to be one area where the environmental protection agency could be involved quite appropriately and it is a naturally occurring radioactive substance.

All of what Senator Norris has said is legitimate but it is covered in the Radiological Protection Bill. If two State bodies are established to do a particular job it is important that there is not a conflict of purpose between the two. That would add to further public confusion about who is and who is not responsible. Since it is a very detailed area of expertise, as Senator Norris rightly said, it is appropriate that all that level of expertise would remain with the radiological protection institute. The Senator may take the view, as Senator Ryan does, that there should not be a radiological protection institute and that the whole thing should be together. The reality is, we will have two separate bodies. The radiological protection institute, independent like this agency, will have the responsibility for all the matters, including radon gas, to which Senator Norris referred.

Because it is important that there is formal consultation and that one can advise the other on certain matters, particularly if there is an area of confusion, we provide for that in sections 54, 77 and 78 of this Bill. In the Radiological Protection Agency Bill, likewise, the opportunity is taken to provide for advice to be given, consultation and so on. It is a question of trying to formalise the link between the two rather than try to duplicate their role. That would more than meet the Senators' reservations and difficulties.

I agree that we must formalise the relationship. If the environmental protection agency have no responsibility whatsoever for dealing with radioactive substances or their discharge, then there is no relationship. I am happy to accept that we should formalise a relationship to ensure that the work — as far as the environmental protection agency are satisfied it can be done — should be done by the radiological protection agency. However, we should have an independent environmental protection agency which are fit, ready and able to adjudicate on the work of other State bodies if they believe those bodies are not working to protect the environment.

Hear, hear.

It is important to remember that the State is not an innocent party in much of the destruction of our environment, particularly in the destruction of the physical environment to which the State has contributed massively. State policy in the area of transport, for instance, is a major environmental threat. The idea that the two State agencies would operate independently and that on the issue of radioactivity, the environmental protection agency would not have ultimate responsibility and authority, seems to leave a serious gap in our environmental protection legislation, particularly on the issue of credibility.

Because I accept that there is a problem of logistics and duplication of resources, I am prepared to withdraw these amendments. However, I will introduce amendments dealing with a similar issue, but hopefully addressing the relationship between the environmental protection agency and the radiological protection agency. I do not accept that we can set up an environmental protection agency which can ignore the issue of radioactive substances any more than I accept that we can set up an agency which can ignore the inside-the-work-place environment and hand it over to the health and safety authority. We cannot make those distinctions. We have to establish a hierarchy of authority in various areas. In terms of anything that is discharged into the environment, if we are to do what we want, which is to establish credibility, then the ultimate authority must be the environmental protection agency.

I will withdraw the amendments with the qualification that I propose to reintroduce them in a somewhat different form on Report Stage.

I am glad I heard Senator Ryan's comments. I listened and read the speeches on the other Bill in anticipation of this Bill being introduced. I asked the Minister if there would be communication between the Departments who seem to be all on the same track because if there is no communication we would then have duplication. Will the Minister give this House a commitment that the radiological protection institute will look after the area about which Senator Ryan is concerned? That is what we want to hear. We all see duplication. When there are two, three or four departments with responsibility for the same area, the buck stops nowhere. Will the Minister assure the House that the Bill going through the Dáil has this absolute responsibility?

I referred yesterday to monitoring and the expense involved. We cannot have the agency and the radiological protection institute doing the same jobs. I accept Senator Ryan's concern about the people outside, because this is a high profile subject. The Minister is saying that the other institute will have responsibility, and will be seen to have it, and the people will be told this.

I agree with the Minister that we should not have two bodies looking after a particular area. However should the Environment Protection Agency not embrace the institute and bring this under the one umbrella? Has the Minister examined this possibility? Perhaps this is the best way to deal with this issue. I sympathise with the sentiments expressed by Senator Ryan in those two amendments. Could we not deal with them all under the one umbrella?

Having studied section 78 — one needs to read it two or three times to get the exact impact of what it means — I am hopeful that the Minister may be able to tell us that she intends, by regulation, to instruct the radiological protection institute — to give it the name I think it will have — that they must consult the Environmental Protection Agency prior to the discharge of such functions of that agency that relate to the environment. Is that a fair interpretation of section 78? Interestingly, section 78 in our Bill equates with section 78 of the UK Environmental Protection Act which allows the Minister of State at the Department of the Environment there, by regulation, make any modifications of the Radioactive Substances Act, 1960, and any other Act that the Secretary of State considers appropriate to the Environmental Protection Act in the UK. There is a similarity there. I understand that in the UK the Radioactive Substances Act deals with all radioactive material discharges and all the difficulties in that area, not the Environmental Protection Act. It is specifically linked——

Acting Chairman

We should not enter into a detailed discussion on section 78 at this stage. I know what the Senator is trying to achieve but——

With respect, we want to bring this debate to a successful conclusion and the Minister has referred to sections 77 and 78.

Acting Chairman

She has referred to those sections, but I do not want a debate on them.

If we could get an assurance from the Minister that section 78, specifically, will take care of the important points being made in Senator Ryan's amendment, some of our fears may be allayed. It appears that the procedure indicated in section 78 is similar to procedures operating in the UK. The Environmental Protection Act in the UK specifically refers to the Radioactive Substances Act but we do not specifically tie in the relationship between the two, perhaps because we are about to change the name of the body and it is still a Bill rather than an Act. Will the Minister develop her thoughts on whether she will use regulations to tie the two together?

I thought I had withdrawn the amendment but, obviously, I could not stem the flow. First, Sellafield has been approved by all the British radiological protection agencies. Everything that it does requires high level approval and everything it has done has been approved of. Let us be wary. Secondly, back in 1977 virtually every expert in this country with letters after his name — I have letters after my own name so I am not casting aspersions — was in favour of nuclear power. The agency which stopped us building a nuclear power station was the Irish people.

It was lack of money.

All the experts, including the Institute of Engineers of Ireland, of which I am an associate member, were in favour of it but the ordinary people were still not convinced. They looked further for information and developed their own views. Ultimately, many of those experts would now have one believe that they never said what they said in 1977 because nobody here is now in favour of nuclear power. That is why I believe specialised agencies should not have too much power. This agency have the job of looking after the public interest, not regulating other scientists in dealing with risky areas of scientific work and that is a great distinction. Section 78, if it were elaborated on, could work, but a Bill to deal with the Irish environment should refer to the question of radioactive substances, else it will be seen publicly to be defective.

Senator Doyle asked a specific question in relation to section 78 and that is the appropriate place to formalise the arrangements, perhaps by way of regulations. We cannot single out every body that the agency should or should not consult or who should consult the agency. The list is endless but when we are dealing with regulations we can use the opportunity to formalise the arrangement.

In relation to the question on nuclear power and points made by Senator Ryan under the general policy directives that are provided for in this Bill, I would envisage that since the Government are opposed to the establishment of any nuclear power stations, perhaps we could use the opportunity to give a general policy directive to the agency. That might allay some of the Senators' fears in case the experts change their views again in another couple of years although I do not envisage that that will happen. The reason we gave the agency or the Government the power to make general policy directives is precisely for that kind of reason.

We have had so many U-turns over the last ten years that I am very sceptical about anything that is not written down in legislation.

Amendment, by leave, withdrawn.

I move amendment No. 16:

In page 10, subsection (5), line 15, after "applies" to insert “inter alia”.

Senator O'Toole asked me to pursue this. I am intrigued by subsection (5) of this section. As it stands, subsection (5) states that this Act applies to activities operated by, or in the charge, of the State. It is meant to ensure that activities operated by the State are not outside the brief of this Act but it sounds as if only activities operated by the State come within the ambit of this Act. Senator O'Toole's amendment simply suggests inserting after the word "applies" the words “inter alia” to activities operated by or in the charge of the State. I predict that the parliamentary draftsman's office have advised the Minister that the wording as it stands meets the requirements of the amendment. I, for one, have enough experience in this House to be very wary of the parliamentary draftsman's office. They have produced material on occasions which, to many of us, after multiple readings was still virtually unintelligible. The parliamentary draftsman's capacity for clarity is something that I do not rely on excessively. The objective of the subsection would be made specifically clear by the addition of the words “inter alia”.

I will not quote the parliamentary draftsman as the Senator anticipated, and I will accept this amendment.

Amendment agreed to.
Question proposed: "That section 3, as amended, stand part of the Bill."

Section 3 (1) states "person in charge" includes an occupier on a premises or a manager, supervisor or operator of an activity;". I am unhappy with the word "operator". Is it the operator of an activity or a person who happens to be working there at the time? It could leave a perfectly innocent member of the workforce, who has been left holding the can for an unscrupulous employer, responsible for something of which he or she was singularly unaware.

I will read what I have here. A person in charge includes any occupier of a premises or a manager, supervisor or operator of an activity. The phrase is used, for example, in section 89 which deals with alternations of an activity and in section 108, where a duty is placed on a person in charge of any process involving genetically modified organisms to use the best available technology not involving excessive costs. It would include the operator of the activity.

Has the parliamentary draftsman assured the Minister that this does not apply to a specific individual who happens to be an operator within the terms that often apply within a process? It bothers me that somebody who has no knowledge of what is going on and happens to be an operator could be deemed to be the person in charge.

Whoever is in charge at the time is covered by this.

What about the person who is given a lorry load of waste and is told to dump it at a particular location? Does that put an onus on each truck driver to be actually aware of what is in it?

It does and it is important that it should.

Does it mean that each individual in a process who is instructed to discharge material should be aware of what is in it? How does the person doing it know that the monitoring is being carried out correctly if the individual is the operator at the end of a pipe?

If the person takes charge of the activity it is his responsibility to ensure that he is fully in control. It would not be normal that a junior would be in charge of the kind of scenario Senator Ryan is talking about but this provision is desirable. In legislation at the moment because we have to prove where the responsibility lies it is extremely difficult to enforce standards. Those who take over responsibility have to come within the ambit of this legislation.

I will try once more, and I am not going to make an enormous issue out of this. I accept fully that those who are responsible for an operation should be clearly identifiable and accountable. I am not sure that somebody who is given the job of opening a discharge valve because his supervisor tells him to do so can be regarded as having a legal obligation to ensure that the effluent that he or she is discharging, under instructions from a supervisor, is culpable. What concerns me is that the term "operator" implies that the individual who carries out a lawful instruction from a supervisor is actually legally responsible.

If the operator is the only one on the premises, therefore the operator has to be the person responsible; otherwise if something terrible happens because, in theory, there was nobody in charge, one could not enforce the law. That would be very undesirable. In fact, that is a problem at the moment in relation to the enforcement of certain aspects of environmental legislation. Obviously, if the supervisor is there, it falls on him as the person in charge, rather than on the individual who is operating. In theory, one could have one person operating an incinerator throughout the night. If something goes wrong, and if Senator Ryan's reservations about, the provisions of this Bill were accepted nobody would, in theory, be responsible and the law could not be enforced. That would be undesirable.

If somebody very junior is left with an amazing amount of responsibilities, that is a matter not so much for separate legislation but for separate negotiations or discussions. If some junior person takes responsibility for something that he could not in reality be expected to hold responsibility for, that is a completely different matter. From an environmental point of view we cannot have some process or activity that is dangerous, likely to pollute or cause damage left without anybody in charge, because the person there is too junior for us to enforce the law. That would be very undesirable. Senator Ryan referred to the handling of waste, and so on. In that area in particular many problems can arise if, in theory, those transporting the waste, or whatever, do not hold responsibility for the time they are moving etc.

In the last phrase which the Minister uttered she, in fact, directed herself to what I felt was a slightly different matter, because virtually all of what she said dealt with static facilities. She talked about discharge from a pipe and processes in a factory. I would like to tease it out a little further. Say, for example, somebody was driving a lorry or a train containing contaminated materials is it the intention of the Minister to make the driver the responsible party? Again, we are back here to things like, for example, dangerous chemicals, ammonia, acids or indeed, radioactive substances.

Is the Minister saying it is appropriate to make the driver of the train or the driver of the lorry the person responsible? That is the difference between a static location and something that is moving. For example, in circumstances where there is a complex chemical or nuclear product involved, I am not sure that it would be appropriate to expect somebody who is simply engaged in the transport end of it to be fully responsible. Perhaps it is. Will the Minister comment on that? I would think that the responsibility is further up the line at the level of the company engaging the services of the transporter. To make a train driver responsible would seem to me to be a little harsh. Perhaps I have misunderstood the situation.

The person in charge is referred to a number of times throughout the Bill. We are trying to define who is the person in charge. Basically, the person in charge is the person for the time being who is responsible for the activity, the process, or whatever, that is under licence to the agency. Train drivers and so on are not going to come within the ambit of this agency's responsibility. The transportation of dangerous substances and all of that is covered by other legislation. In the enforcement of legislation it can often be a problem trying to establish where the blame lies. It is important that we properly define that, so that there is no loophole simply because the manager or supervisor is out for the time being, was not available or on the premises when the difficulty arose. It was to cover all those scenarios that we very specifically included "operator". Obviously, there will never be a situation where an activity is there without anybody at all. It would mean that the activity or the process was not being conducted at the time if there was no person there. It is important that it should cover the actual operator, even if it means that person is the only person for the time being on the premises.

This point as it stands is very important. Obviously, workers cannot be held responsible for the failings of their managers. I have always believed that since in the workplace we should be talking about responsible adults and since more processes are becoming automated, it is also important that managers should not be held responsible for the failings of workers who do things contrary to instruction. I can see a situation, if we are serious about protecting the environment, where an instruction is given in writing to follow a certain process, and an operator who has been properly trained and left in charge to operate that process would fail to do so according to the given instructions. If the amendment is accepted the manager would quite rightly say that he had given instructions, laid them down and put them quite clearly in writing and in training courses. He may claim he was not responsible because the operator, consciously and knowingly, did not bother adhering to those instructions and caused, for example, a discharge. It is important that the issue cannot be dodged and walked away from. In that case I would have to say, yes, if an operator who is a responsible adult does not follow instructions, or contrary to instructions was responsible for, for example, a discharge he should be covered under the Bill and held responsible. Otherwise, there would be a phenomenal loophole and everyone could say, I gave the instruction. "That would get management off the hook. If the worker is excluded from the Act that gets him off the hook, and he can walk away free from it. It is important that the senior person in charge at that moment is covered in this section. Otherwise, we might as well take the section out of the Bill.

The Minister told us that the drivers of trains or lorries carrying dangerous substances would not be included in the Bill. To take up Senator Norris' point, it would be quite wrong to leave out the driver of a train or a vehicle who might drive in a most reckless manner and thereby cause an accident of a serious nature. He or she should not be let off the hook. From that point of view, I do not think it would be reasonable. The case made by Senator Ó Cuív was along the lines of what I wanted to say. Senator Ryan has a point, undoubtedly, but of the two options one has to come down on the side of including the operator of an activity, if the Act is to be meaningful.

The Minister does not have an option. She must make the person who is in charge of a vehicle responsible whether it is an aeroplane, a train, a lorry or an ass and cart. That person must be responsible. I can give a simple example. If on a Saturday, Sunday or whatever day a person was responsible for delivering a load of waste to a certain designated location and the person in charge of the vehicle decided to shorten the hours and day or journey by selecting a different site or a more convenient site, such person would have certain responsibilities. I believe the Minister could not exclude such person from responsibility. There would be joint responsibilities. The person in charge of the vehicle or the disposing unit — whatever terminology you want to use — cannot be excluded.

The policing and implementation of the legislation is much more important than the phraseology that attaches to it. I am surprised at the very eloquent and very educated educationalists who quarrelled with the draftsman on one hand and are throwing up more scenarios on the other hand. The simplest language that you can use here to implement the legislation on the ground, the better is the chance of this legislation being effective and useful. It has to be understood by the work people on the ground. I think the Minister has no option whatsoever. She must include the people who are responsible at the time that any accident or any wrongdoing takes place. That is the kernel. At the time a person takes on responsibility. They cannot be excluded in this case.

I wish to clarify the matter for the Senators. What the Senator is talking about is against whom is the law to be enforced, and who is going to be prosecuted. I refer the Senator to section 8 (2). Perhaps I could read it to the Senators to clarify the position.

Where an offence under this Act is committed by a body corporate or by a person acting on behalf of a body corporate and is proved to have been so committed with the consent, connivance or approval of, or to have been facilitated by any neglect on the part of any director, manager, secretary or any other officer of such body, such person shall also be guilty of an offence.

That deals with the difficulties the Senators mentioned. The person in charge is referring in particular to alterations in the activity of the process and to the person in charge of the GMO'S — section 108. That is specifically where the person in charge comes in. In relation to the trying to enforce the law and so on it is quite clear that it is somebody who is acting with the consent, approval or whatever of the management.

I do not want to pursue this. I had read section 8 and I was aware of it. It was the question of who would be the operator in terms of being a person in charge as defined in the Act. It seems to me that it is something of an invitation to unscrupulous people in so far as the person in charge operates to put the blame on the person who is at the end of the pipe or does something under the provisions. I am not going to make a big issue of this. As regards what Senator McGowan said, I want to remind the House that we passed a Bill here which defined a crossbow as a firearm. If the parliamentary draftsman is satisfied that a crossbow could be called a firearm or a firearm could be called a crossbow, then ordinary English does not mean what it says. It means what it means in the legislation. We should be very careful.

Acting Chairman

Is the section agreed?

Could the Minister tell me what is "curtilage?" It occurs in line 15 of the same page. I never heard of it before.

I, too, would be happy to hear what it means and also the meaning of messuage. Perhaps we could have a definition on the record.

It is the area around the building associated with the building.

I never heard of it.

It gives me some comfort that I am not the only one who did not hear what it meant.

It is associated with tenements in leases. I am not quite sure. I think it means the area over which the person has legal control. It is in Ulysses.

Good. I have not got a copy of that in my explanatory notes.

Question put and agreed to.

Acting Chairman

Is amendment No. 17 withdrawn? It has already been discussed with amendment No. 11.

No. I move amendment No. 17:

In page 10, subsection (1), between lines 20 and 21, to insert the following new paragraph:

"(c) the protection and enhancement of all aspects of the environment, including fauna, flora, soil, water, air, climate, landscape, architecture and cultural heritage."

May we speak on this amendment?

Acting Chairman

You may not speak on it. It was discussed with amendment No. 11.

We will have a vote on it.

The question is: "That the amendment be made". Will the Senators who are claiming a division please rise?

Senators Upton and Harte rose.

As fewer than five Senators have risen I declare the amendment lost.

Amendment declared lost.

The names of the Senators who stood will be recorded in the Journal of the Proceedings of the Seanad.

Amendments Nos. 18 and 19 not moved.

I move amendment No. 20:

In page 10, subsection (2) (c), line 27, after "the" to insert "handling and".

I am requesting, notwithstanding the extensive defination of disposal in the interpretation section 3 that we have just passed, that section 4 (2) (c) now read, "the handling and disposal of waste is a manner which would endanger human health or harm the environment". I want it to be absolutely clear that those that are only handling what may be considered in some circumstances to be waste but in other circumstances it could be the byproducts and the start of something new or a new product would not be excluded from this particular section.

I refer to the definition on page 8 at the top of the page in relation to disposal. It says in relation to waste disposal will include the collection, sorting, carriage, treatment, storage and tipping above and underground and the transformation operations necessary for its recovery, re-use or recycling. In the amendment I am now proposing that we insert "the handling and disposal of waste in a manner which would endanger human health or harm the environment", so there is absolutely no equivocation about who is using it or what they are doing with it and whether it is considered to be endangering human health or the environment generally.

If this amendment were adopted it would mean that literally every household in the country would come within the ambit of the agency. I do not think that is desirable or necessary. Obviously, local authorities are still going to be responsible in the main for domestic refuse. Therefore, unfortunately, I cannot take the Senator's amendment on board because of the huge implications. It would completely widen the scope of this Bill.

Sitting suspended at 1 p.m. and resumed at 2 p.m.

I had just moved amendment No. 20 before the sos. Having listened to the Minister's response, I am puzzled. As I understood her to say, the Minister feels that by including the handling and disposal of waste rather than just the disposal of waste, as she now has the Bill, it would cause some problems, say, for ordinary householders in the disposal of their refuse and waste generally. I cannot understand how they would be further disadvantaged by including the expression "the handling of the waste" any more than they may now be disadvantaged — if that is the right term in this context — by the expression "the disposal of waste" that we now have in this section. I would like further clarification on her explanation to me for not being able to accept my amendment.

Obviously, the local authorities are responsible for the disposal of domestic refuse and so on, not the householder. If we include the phrase "handling" I am advised that this would bring householders and shopkeepers and small activities of that kind under the direct responsibility of the agency. I do not think that is desirable. I do not think that is what we intend to do here.

No, I accept that is not what is intended. Surely in regard to the local authorities and other commercial disposers of waste, which would become an increasing factor in the future, the handling by these people and bodies is as important as the method of disposal. I do not want to be too pedantic about it but as much damage can be done to the environment by the improper handling, be it by a commercial outfit, an individual, a public authority or whatever, as by the actual disposal, the end of line activity in terms of getting rid of same. I do not expect us to set up an agency or organisation that will run around the country looking in kitchen doors to see what the housewives are doing with their waste. That is not what I have in mind, nor do I feel that that is what would be implied either. I do think that, as the commercial private sector become more involved in the disposal of waste, the method of handling will be as important as the end of line activity in getting rid of it.

I certainly agree with the Senator in the definition of disposal on page 8. I quote:

"disposal", in relation to waste, includes the collection, sorting, carriage, treatment, storage and tipping above or under ground, and the transformation operations necessary for its recovery, reuse or recycling.

In relation to licence activities, the agency can include handling matters in the conditions it attaches. That is provided for in section 81 (1) (k).

I will withdraw my amendment.

Amendment, by leave, withdrawn.

I move amendment No. 21:

In page 10, subsection (2) (c), line 27, after "waste" to insert "or energy".

I concluded that the omission of energy is probably an oversight or, if it is not an oversight, it is unnecessary for reasons which the Minister will be able to explain. I think in particular of heat, which is not mentioned specifically in this section. The disposal of heat can be a pollutant. It would be consistent with Part IV of the Bill and the First Schedule, which refers to energy as one of the activities which the EPA in fact has control over.

I think what the Senator is trying to achieve here is desirable. In fact, it is already covered under the definition of air pollution in the Air Pollution Act. I quote from my notes: Environmental pollution is defined to include air pollution for the purpose of the Air Pollution Act, 1987. That Act defines air pollution as a condition of the atmosphere in which the pollutant is present in such a quantity as to be liable to a number of things — injuries, public health and so on.

Pollutant is, in turn, defined to include, inter alia, any substance or energy which when emitted into the atmosphere either by itself or in combination with any other substance may cause air pollution. Any other energy discharged to the environment is transported either in liquid or in solid form. For example, cooling water or ash. These would, of course, be covered by the definitions of the water pollution legislation.

I am therefore happy that the purpose of the Senator's amendment is already covered.

The Minister would want to be careful. She is being so helpful that one is inclined to keep asking questions of her. Does the Water Pollution Act — it is a long time since I read it — make a similar reference to the disposal of hot water because that can be a considerable threat to life in a stream or river?

Yes, I am advised that if it is a pollutant to water it is covered.

Would heat or increasing the temperature of water automatically be considered a pollutant? It should.

Yes, hot water is included.

Amendment, by leave, withdrawn.

I move amendment No. 22:

In page 10, subsection (2) (c) (iii), line 33, after "countryside" to insert ",the landscape".

This is a similar addition where, I presume, that the word "landscape" has been omitted for reasons which are not clear to me. It would be consistent to put in "the landscape", which is obviously the shape of the land as we see it. Obviously pollution or the disposal of waste can cause awful dangers to the landscape as well as to other areas of special interest. Why has it been omitted? Perhaps it is covered somewhere else, but I have yet to find out where.

Again, I am advised by the parliamentary draftsman that the inclusion of the word "landscape" adds nothing to "countryside". Indeed, it has been suggested that it would give rise to some confusion as to what is intended as there would be an implication that "countryside" included "landscape" but could also exclude other matters. This danger is further reinforced by Senator Hederman's amendment which seeks to add "natural heritage" as well as "landscape" to the definition.

The wording of subsection (2) (c) has been based very closely on the wording used in the European Community's Waste Regulations, 1979, and the European Community's Toxic and Dangerous Waste Regulations, 1982, which give effect to the directive on these matters. In fact, the only changes were to change the word "air" to "atmosphere" in paragraph 1 on the advice of the parliamentary draftsman and to add the word "land" to the same paragraph to ensure clarity, also on the draftsman's advice. There have been no problems with the definition in these regulations, one of which has been in place for 12 years.

I accept what the Minister says. I find it difficult to accept that "landscape" is completely included and embraced by the word "countryside". I understand that is what she is saying, but I can think of circumstances where the landscape is not covered by the countryside. But if the Minister is satisfied that it is covered elsewhere I accept that.

Amendment, by leave, withdrawn.
Amendments Nos. 23 to 25, inclusive, not moved.

Amendment No. 208 is consequential on amendment No. 26 and both may be discussed together.

I move amendment No. 26:

In page 10, after line 41, to insert the following new subsection:

"(4) In this Act—

‘environmental information' means all information which in the opinion of the agency is related to the prevention, limitation, elimination, abatement and reduction of environmental pollution and/or to the preservation of the quality of the environment.".

One of the principles the Minister espoused in the lead up to the publication of this Bill, and in her considerable consultations around the country on the Bill, is the principle of freedom of information. The Bill as it stands gives no serious guarantees of freedom of information except in a number of specified areas. Section 107 permits the Minister, if he or she is so disposed, to provide for the making available by public authority of information relating to the environment. It does not say that he or she has to. It says that she may in the manner that she sees fit make the information available. Section 38 is quite blunt about the restrictions on confidential information. Section 38 has provision that confidential information shall be expressed by the agency to be confidential.

There are a number of problems with this. I confine my remarks to these two amendments, so they are difficult to separate from section 38 and the amendments I have there. In the case of amendments Nos. 26 and 208 the objective is to overcome the continuing resistance of local authorities to do anything other than the minimum that is clearly imposed upon them or that they are clearly obliged to do in terms of making information available. I have explicit letters in my files from the county manager of one local authority saying quite explicity that he has no intention of making any information available other than that which he is statutorily obliged to provide. Because of that amendment No. 208 gives the agency the authority to require public authorities to provide it with copies of all environmental information in their possession. The objectives of that would be that, with all the information in their possession and with the amendments that I have introduced to section 38, all environmental information in the possession of all public authorities, subject to reasonable conditions, would then be guaranteed to be available to the public through the Environmental Protection Agency.

The point at issue is that in amendment No. 26 the agency would be the body which would adjudicate on what information in the possession of public authorities was environmental information. Having adjudicated upon it, it could then insist on having it in its possession. It would then be obliged under amendments I have to section 38 to make all that information available subject to a set of reasonable conditions. The central issue here is not whether freedom of access to environmental information is going to be implemented; it is when it is going to be implemented, because there is, as the Minister knows better than I do, a Council Directive of 7 June 1990 on the freedom of access of information to the environment which says that "save as provided, members shall ensure that public authorities are required to make available information relating to the environment to any natural or legal person at his request and without his having to prove an interest." There are a series of qualifications, etc. which I will come to in a moment. Basically, we are in a position where there is an EC Directive which says that all member states shall ensure that public authorities are required to make available information relating to the environment.

Section 107 of this Bill defines information relating to the environment contained in the EC directives. My definition is somewhat different. I wanted to ensure that the Environmental Protection Agency has access to the broadest possible amount of information that in its opinion is related to the environment. My definition is broader, but it is a definition which is open to interpretation by the agency, which has a job to do in terms of the environment. In terms of what should be legally guaranteed, we can talk about that later.

My amendment No. 26 is simply intended to give a definition which is workable to enable the agency to assemble in its own information resources and data banks all information that is at present available and held by local authorities, many of whom are totally recalcitrant in making that information available. It is quite astonishing that it took the Kramer Warner report on Cork Harbour, for instance, to coerce Cork County Council to make considerable amounts of its monitoring data available, which was then made available to Kramer and Warner and published in the report, but which various environmental groups in the area could never get their hands on before because they were told it was "confidential".

We have a fundamental principle of trust involved here, and that is, access to information. We have an EC Directive and I find it astonishing that this EC Directive may be implemented when the Minister sees fit. My view is that EC directives have the force of law in this country and to implement them by discretionary regulations which the Minister may introduce on his or her own time scale is quite wrong.

I therefore want, first to have the question of environmental information introduced as a definition now for use in section 65 and also to clear the way for a much broader interpretation of section 38, which would leave quite clear rules about confidentiality — quite clear and explicit rules about confidentiality — but would not leave the principle of confidentiality or the assessment of confidentiality to the agency. On that, without exceeding the brief of the two amendments, the directive on freedom of information does identify the usual exceptions to all freedom of information legislation — confidentiality in proceedings of public authorities, public security, matters which are or have been sub judice, commercial and industrial confidentiality, confidentiality of personal data and files, materials supplied by a third party and material that the disclosure of which would make it more likely to affect the environment. We could argue the details of those exceptions, and perhaps we will at a later stage in the Bill, but the fact is that we should be working towards a position where all information is public except where it is necessarily confidential, not the principle which we have here that all information is confidential except that which the public are permitted to see.

There is a very fundamental difference in principle. In my view, on the specific issue yet again of public trust, it is not a question of whether I persuade the Minister or not; it is not a question of whether the Minister agrees with me or not. The truth is that this country is going to have a perpetual and continuing problem about environmental protection until public trust is won, and public trust will not be won by any reluctance to disclose information unless there are clear ground rules. The first ground rule must be that all information is available, except the obvious exceptions. The second ground rule must be that where exceptions exist the interpretation of their application is not left to the agency which hold the information but is clearly in the hands of the courts.

That is why I have made the amendments the way they are. The agency will have the right to seek all information in the hands of public authorities. It will then have that information at its disposal and under the amendments that I propose to section 38 it would be obliged to make that information public, subject to the usual exceptions, but it will not be in a position to be a final authority on how those exceptions apply. That will ultimately be a matter for the courts, the interpretation of the subsection, it should not be left to the agency. All State bodies have a vested interest in confidentiality, a vested interest in keeping information secret.

The objective of amendments Nos. 26 and 208 is to ensure that environmental information currently in the possession of public authorities becomes the property as well of the environmental protection agency and in the process becomes the property of the public. Section 107, as currently drafted, will not guarantee one iota of information to the public; it will not guarantee anything. It is enabling legislation. It is not a right to freedom of information, which is what this country badly needs if we are going to get some sort of trust back into the relationship between the public and the State on the issue of the environment.

There is more information available than Senator Ryan seems to imply. This is the first time this type of legislation has come before us. I do not find the total clamp down on information that Senator Ryan seems to. He quoted a county manager who had dug in and refused to disclose information. I do not find that with local authorities and with county managers. Surely, when this legislation goes through the Houses of the Oireachtas, the Minister will be responsible. She is the Minister absolutely in charge of our environment and she will be responsible for seeing that everybody will get the information in the proper way.

Senator Brendan Ryan made reference to the fact that some documentation is at all times confidential and he also referred to public trust. I would hope that when this legislation is put in place it will be the responsibility of the Minister to see that all the information Senator Ryan has a worry about will be available for the public at large.

As regards the reference to public trust, that is an area in which we all have a role to play. Certainly it is important at all times that we, as elected people, bear in mind the public trust that the information we are in a position to give will get to them. I am saying this for all legislation. I would ask the Minister to give some commitment in her reply to Senator Ryan that this information would be freely available for the public.

Senator Ryan also made reference to the powers the Minister has under section 107. He is asking that perhaps some of that information for the public should be brought forward at an earlier point in the Bill. I agree with him absolutely. Senator Doyle made reference to this earlier this morning. It is crucially important that information is given to the public and not only to Members of the Oireachtas. I would worry if the Senator felt that information even at this time was being held back from people who should have it. If the Minister came in at this time to give us her opinion on the matters Senator Brendan Ryan has worries about, then perhaps we could continue the discussion from there.

If the Minister would like to come in now, I can comment later.

Acting Chairman

The object of keeping the Minister out is to try to get Senators' comments on the amendments dealt with first.

I will oblige. May I ask, through the medium of this amendment, whether the Directive on the Freedom of Access to Information on the Environment, which was adopted ten or 11 months ago by the Council of Ministers, is being ratified by way of this legislation and if not, which I suggest, why not? Why did we not use this occasion to ratify at least that bit of information? The Minister assured me that she could not go along with the regulation on the establishment of the European Environment Agency because nobody can agree on the headquarters for the agency. We could solve that problem very quickly. Why is it that the directive on the freedom of access of information on the environment is not bound into this, or does it need to be? Can it be implemented without any legislation being adopted in this country? There is a difference between regulations and directives in terms of how one applies them.

I am very sympathetic to the wording of this amendment. I have fears in relation to the structures that will be in place for allowing access to information by the public generally. During Second Stage we discussed the US Toxnet Data Base system in this House. I put it to the Minister that she might consider a similar type data base through which the public could have access to information while at the same time commercial confidentiality could be respected. Everything would not be up for grabs in terms of publicity or publication. The vast bulk of information should be available to allay the real and perceived fears and concerns of the public. That is one of the major functions of the EPA. Will there be a register that the public may inspect? We may not get a complicated data base type accessing of information, even though I do not see why we should not be talking in those terms. We should use the best available technology not entailing excessive costs right through as a principle. The scientific integrity of this agency must be above repute so that the fears, both real and perceived, of the general public were allayed. If they find it difficult to get information or are unable to access information easily without going through bureaucratic procedures, it will be counterproductive.

I agree with almost everything that has been said in this debate. It was my desire, when this legislation was being framed, to make sure that the maximum amount of information would be made available to the public. That is why, throughout various sections, we make provision that monetary results be made available. We have section 38. Section 107 seeks to put into place the European directive on access to information on the environment and so on. It might be more appropriate when we are dealing with those sections to discuss the question of information.

Senator Ryan's amendment, well meaning though it is, is far more restrictive than the definition of environmental information which we use in section 107 (3) which goes way beyond that. Subject to either something being a trade secret and a genuine one, or public security being involved, or some personal data, all other information should be made available as a right and that is the intention with this legislation. We engage in protecting things that are not entitled to protection from the public. It is not the intention in this Bill to do that. As we go through the sections that deal specifically with information, perhaps we could deal with Senators' reservations and difficulties.

In relation to registers and so on, we provided a number of areas — registrars of research, registraters of licences and details of them and we will deal with that later in the debate. In relation to the public authorities giving information to the agency, that is dealt with in section 66 (3), where public authorities have to give certain information to the agency and they cannot unreasonably withhold it. When we deal with that section we can debate the matter.

In relation to the European Environmental Protection Agency, I have no doubt we could resolve the question of headquarters if we were allowed to resolve it on our own. Unfortunately, we cannot resolve it on our own. We have to wait for agreement in relation to that. I do not think that is going to do anything that we cannot do ourselves with this legislation. I very much agree with the gist of what was said in the debate and it is not my intention to be restrictive or withhold information that legitimately belongs to the public.

Acting Chairman

Is the amendment withdrawn?

I am moving in that direction.

Acting Chairman


I am a cautious person by nature. The Minister has done a considerable job in advancing the principle of freedom of information. I do not dispute that. Section 38 came as a great shock to me in terms of the Minister's commitment to freedom of information. Section 38 is a legal prescription on the disclosure of information. Section 107 is an enabling section to allow people to do things if they wish. My own view would be that, as of now, most Government agencies if they wished could disclose most of the information they have without any enabling legislation. I may be wrong. I accept that there are specific areas where information shall be published and a considerable amount of it was published before the previous Government abolished An Foras Forbartha. I will not pursue the issue. I am not sure the Minister is right that my definition of environmental information for the purposes I have in mind is narrower than the one in section 107. The problem about that is that it applies only to section 107. What we need is a clear definition of environmental information for a considerable number of purposes, in particular, a definition of environmental information that would be encapsulated into the philosophy of section 38 might completely alter the tone of section 38.

All I can do at this stage is withdraw amendment No. 26.

Amendment, by leave, withdrawn.
Question proposed: "That section 4 stand part of the Bill."

Did I understand the Minister correctly when she said section 107 gave statutory effect to the full directive on the freedom of access of information on the environment?

Yes. Subject to the regulations being brought in.

Those are two points on the section. As regards the preservation of the quality of the environment, that is a cliché no matter what way we look at it unless we have a definition of the environment in the interpretation section. It further emphasises the efforts of Senators on this side to have a definition of the environment included in the interpretation section. Without it, it is a sort of mothers' milk type aspirational stuff. I draw the House's attention to section 4 (2) (c) (ii), which refers to causing a nuisance through noise or odours. Maybe we could introduce the concept of smell in the interpretation section when we have it already in this section, notwithstanding the difficulty of measuring, monitoring or meetering levels of smell, as it is different to different people.

Acting Chairman

The Senator is resurrecting what has been dealt with. It is legitimate to refer to what is in the section. It has been dealt with by way of amendment. The Senator is referring back to some of the amendments previously discussed.

I am aware of that but I am specifically talking about section 4. We will be coming back to them on Report Stage.

Question put and agreed to.

Acting Chairman

Amendment Nos. 27, 34 and 36 are cognate, and amendment No. 30 is related. If amendment No. 27 falls, amendments Nos. 34 and 36 may not be moved. Senators may discuss the four amendments together.

I move amendment No. 27:

In page 11, subsection (1), line 2, to delete "not entailing excessive costs".

I put down this amendment because of my fear about section 5 (1). I referred to this on Second Stage. Who will define "execessive costs"? I cannot understand why that wording is there because it leaves the Bill open to legal question. Are we going to have High Court actions or Supreme Court actions to define excessive cost? If we take the case of somebody applying for permission to build a piggery, a 100 sow unit for which he will have to get a licence, or somebody trying to establish a multi-million pound company, there is a great difference in their attitude to excessive cost. It is not the Minister of the day but a group of bureaucrats who will decide what is excessive cost. I am not being nasty about this but, as I see it, it is dangerous wording and I cannot go along with it.

As I see it, the definition of this section would be a lawyer's dream. There will be endless court cases defining and determining what exactly is the definition of those words, "not entailing excessive costs". The defination of cost would depend on the type of application and the project. For one group £1,000 could be an excessive cost but £1 million pounds might not be an excessive cost to a major industry. Will the Minister accept this amendment? If not, what alternative proposals has she to deal with this section? As I said on Second Stage, this section is unworkable. We all want the legislation but it will not serve any useful purpose if it is brought through the courts every day.

I am the co-proposer of this amendment I have no great hope that the Minister will accede to our wishes. Of all the amendments tabled, we have the least chance of this one being successful. There is a precedent in other legislation for this principle and it has become acceptable in European legislation. If we do not debate this thoroughly and understand exactly what we mean, the whole principle behind the establishment of the EPA falls because as the Bill claims a cradle to grave approach in relation to pollution, accepting the BATNEEC principle without question does not follow.

Senator Naughten questioned who would decide on what is excessive cost. I understand the agency may, not will, specify the best available technology not entailing excessive costs in different situations. I contend that in a green field situation where a new plant, large piggery or other operation that might impinge on the environment or cause pollution to a greater or lesser extent is involved, the best available technology should be the ideal objective in terms of the construction of the plant concerned.

How does one measure excessive costs? Do they relate to the profitability of the industry concerned? The multinationals could absorb greater costs without any major damage to the overall viability of their operation than a piggery in some corner of Ireland where a farmer's son is desperately trying to make a go of it and shows a good hefty red in his bank overdraft. Anything is excessive in his case. How do you measure cost? Relative to what will it be excessive? What guidelines will the Minister use to establish whether it is excessive in one case and not in another case? It is wide open for misinterpretation and indeed for legal challenge as has been pointed out.

Interestingly, the one area where excessive costs could be used as a very successful defence in not carrying out pollution control measures would be in the farming sector because virtually any expenditure in this area is excessive given the tragic decline in farm incomes over the last year or two. When it comes to the Local Government Water Pollution (Amendment) Bill there is no reference to excessive cost for that sector at all. If it has to be done, it has to be done regardless of the cost. The one sector where it would be very easy to understand the concept of it entailing excessive cost is not included in the legislation, even though the Minister would point out the many places this principle is included both nationally and in the European context.

I contend that we need a serious commitment to eliminating pollution at source. If the Opposition do not challenge the concept of including not entailing the excessive costs when accepting best available technology, we are defaulting and are not protecting the environment to the ultimate. It is a question of what price jobs versus what price protection of the environment. Where does one draw the line and who decides? Apparently the agency will have full authority to decide what is excessive in one situation and what is not excessive in another. I am not happy with it. We will be lining the pockets of our legal profession to a large extent. The Minister should indicate whether the BATNEEC principle has been challenged in the other legislation it is now included in because it would be interesting to see if there is any precedent for court cases and the outcome of them.

The problem about BATNEEC is that one cannot separate technology from cost. If you want to reduce emissions from a plant from one part per million to one part per hundred million, it is possible to devise a method of doing so, but the costs may well be a hundred times larger. It is almost elementary that one cannot separate investment in technology from its cost. One is related to the other. There is not a thing called technology independent of its cost. What creates the inclination to develop new technology is cost minimisation, increased regulation of the environment or changes in the market place. The objective of all new technology is to reduce the cost to the purchasers of doing whatever the technology is supposed to do or else to achieve a higher standard at the existing cost. That is why the BATNEEC principle seems to have taken life.

I am inclined to go along with the view of my colleagues in Fine Gael and simply take out the section on not entailing excessive costs. We should have a serious debate on the cost to whom because there are trade-offs that are sometimes made between the costs to a locality of a particular process and the costs to the private company of doing something to prevent environmental pollution. From the principle of minimising waste and having extremely restrictive standards of emissions automatically follows a high level of technology, some of which, but not all, will be enormously expensive. Simply taking out all reference to costs sounds great but in my humble opinion — says he with his tongue in his cheek — it is not the way to deal with the problem. I would prefer to deal with it by way of tighter interpretation.

I should not be going on about the parliamentary draftsman but his attempt to define BATNEEC in the second half of the paragraph does not get us one step closer to a working definition. It effectively says that BATNEEC should do what we want it to do as well as we can get it to do it. It is important to specify standards rather than technology and ensure that they are enforced so that anything that is done is based on high standards. Whinging about the cost of the standards should not be a problem.

I would like to see the BATNEEC principle deleted but, like other speakers, I am realistic and I know that it is unlikely to be taken out. It is established and popular in Europe. While the public must have confidence in the Bill it also must be acceptable to industry. We must strike a balance between the two. The reality is that industry would not tolerate it being taken out and that is why I suspect it will not be taken out. To overcome the problem I put down amendments, one of which states that no substance or material shall be discharged into the environment in significant quantities unless it can be reasonably shown that such discharge will not cause either widespread or long term or irreversible damage to the environment; the next one deals with the precautionary principle of waste elimination or reduction at source, which may be stated as: "it is preferable where possible to eliminate or significantly reduce the production of waste matter or energy by altering the production system process, changing the raw materials used rather than by collecting, treating or otherwise dealing with the waste". I was trying to counterbalance the fact that the BATNEEC principle would be left in.

I am also very concerned about the BATNEEC principle. It will lead to a legal jungle and a great opportunity for lawyers, scientists and scientific consultants to make lots of money in the courts working out what all this means. The question of excessive costs to whom has been raised. Is it to the industry, or the section of the community the industry serves? Is the cost to be measured in the immediate short term or in the long term and how does one do that? It is depressing to hear people talk in terms of this being put into operation in Europe and that accordingly we must follow. As far as the environment is concerned, we are different from Europe and that is our big strength. There is no shortage of surveys which show that Europeans see the Irish environment as different and as something to aspire to. It is better than theirs. If we follow Europe in this matter we will make the errors that they have made and as they come out of one side of the cycle we enter the other side. I find that depressing. It is shortsighted in the context of the overall welfare of the country.

I agree with Senator Ryan about standards. That is what we should be looking at, not following European ideas which are undesirable from an Irish point of view, given the great advantage we have in relation to our environment. We should be setting the pace, coming up with new ideas and setting higher standards than they have in Europe.

I want to make it clear that BATNEEC or the best available technology not involving excessive costs is only one of six matters that the agency has to consider in deciding to grant a licence. Under section 80 (3) there are six different factors the agency must consider when it is deciding to grant a licence and this is one of them. I feel very strongly that we could not go any further than BATNEEC for this reason: in relation to a particular activity it could well be argued that one piece of technology available, say, in Japan and relatively new, untested and untried, was the best available technology for the particular purpose. It would be unreasonable to expect an Irish company to be forced to engage a piece of technology that has not been tried and tested, that is extremely expensive and might be way beyond the reach of the activities involved. We have to bear in mind the cost. When drafting this legislation one was pulled in two directions, the environment on the one side and industry on the other. There are many people involved in industry who feel we are going too far even as it is. They say that they are expected to fulfil higher standards here than they are elsewhere, the long delays in the planning process and now the involvement of the Environmental Protection Agency and so on. We must be realistic. We could get to a stage where we forced everybody to engage such technology and to meet the kind of conditions that would make it virtually impossible for a host of activities to operate. That would be the case in the high technology area. If we impose higher standards here than are the norm throughout Europe, and the norm throughout Europe is BATNEEC, then many people will just desert us or not look to us at all in the first instance.

I think we have struck a good balance. The points made by Senator Ryan are appropriate and what is important is the standards rather than the technology involved.

In relation to Senator Doyle's point about farmers, we are not talking about applying technology to the average farm. The local authorities can, under the water pollution legislation, bring in bylaws and so on to restrict activities where they might cause a problem. Certainly in the agricultural sector, in the food industry or in intensive agricultural development, this principle will apply in the same way as it will to other sectors of industry. There is certainly no discrimination as far as agriculture is concerned.

Senators wondered who would decide what was BATNEEC and, of course, the agency will decide. That can only be appealed to the courts on a point of law. The best practical example which is a similar concept to this is in the Air Pollution Act and that has not been challenged in the courts. The interpretation inserted there by the local authorities, or by An Bord Pleanála as the case may be, has not led, I am advised, to any legal actions. I do not anticipate that this measure will, either.

I have a number of other amendments on this and related issues. Let us not keep on talking about industry and the environment. The figures from the Department of the Marine on fish kills in 1988 and 1989 attribute 47 per cent of them to agriculture and enrichment, 20 per cent were attributed to local authority treatment of sewage, water and other civil works, 18 per cent to other causes and 15 per cent to industry. That is why I am not keen on recommending the introduction of limitlessly expensive high technology to tie down industry. Some of the industry that deservedly come under pressure for their less than helpful way of dealing with the public are a lot cleaner than many of those who have got away with murder, in terms of fish kills, anyway. I am far more wary of the food industry's somewhat gung-ho attitude to the environment than I am about large sections of the chemical industry. It is not a question of excessive cost that is troubling some large sections of the food industry; it is the unwillingness to meet standards that they could meet within the existing technology but which would cost them some time and a relatively small amount of money. They are not prepared to do that. If somebody wants to be troublesome they could go on forever.

With regard to the phrase "best available technology", you can always get an expert in court to argue whatever the particular client wants to argue. The finest demolition of the myth of science's objectivity is provided by the profession of scientific experts and the way they masquerade in court. You can always find one scientific expert to say the exact opposite of what another would say. We have seen this in medicine, and in the area of pollution. You can see it in the area of architecture or of any other speciality. I do not think we will have a legal minefield because both industries seem more concerned about delays in getting started and about unpredictable delays then they are about the specific standards they will have to meet.

I agree with Senator Upton that we should not set our standards in this country according to European standards. There are many areas, such as emission control and the regulation of agriculturally related environmental damage where we should set standards above those applied in Europe. I am very sceptical about the idea that high levels of environmental standards scare away industries. Some of the most successful economies in Europe discovered the environment 20 years before the rest of Europe did. I speak particularly of some of the Scandinavian countries that knew and talked about environmental protection a long time before other people realised it. Their industrial development did not fall behind; quite the opposite.

To specify high quality environmental protection technology usually presupposes the use of high quality technology generally which results in highly productive, well organised, well motivated industries that are very successful in competing in the national economy. I do not worry about the cost. I do not think our standards are going to frighten away reputable industries. The occasional cowboy may be frightened off but we are better off without them because they would probably leave eventually for some other spurious reason.

I thank the Minister for her answer. I am still unclear as to how excessive costs will be measured or decided. I know the agency will decide but relative to what will cost be considered excessive? What price environmental protection? What price jobs? What sort of formula will there be for evaluating whether retrofitting an industry with a particular technology is excessive? Will it be relative to the profits of the industry concerned or relative to the improvement in the environment if that technology was used? What if there is no technology available that does not entail excessive costs relative to the profitability of a certain industry? Could certain smaller industries perhaps, which are not very profitable, continue to pollute by not installing scrubbers on their incineration chimneys and be allowed away with it on the defence that any technology that would remedy the problem would be excessive to them in terms of cost given their particular profitability. Could that be a defence to the point that no action would be taken?

I am advised that in deciding on best available technology not involving excessive cost the agency would devise technology sector by sector rather than on an individual basis.

Even within sectors you have some very profitable industries and others that are on the borderline where the banks are waiting to pull the rug, as it were. In other words is it commercial viability or profitability that will ultimately decide whether technology will be applied to remedy a pollution problem that has arisen even within sectors?

It is a pity that we have not closed down a few industries because in that way we would convince a large section of the public of our sincerity. I do not care if a section of the chemical industry is closed down. There are other areas of activity in this country whose environmental records are disgraceful. Some of them often wear the green mantle because they are agriculture related and they sound a lot healthier and safer than certain other industries but they do a lot more damage to the environment. Anybody who has lived near a tannery will realise that there is a series of other environmental problems that people have taken for granted for 20 years. My problem with BATNEEC is not so much with the principle but I have a series of amendments to some of the details later particularly in relation to what could be called established activities. The time limit within which they can operate must be clear and definite. They cannot have an open ended negotiating environment in which to negotiate with the Environmental Protection Agency. Neither should the agency feel that it is either encouraged or permitted to let people transgress the law indefinitely. These amendments will come at a later stage. I still cannot see that deleting the phrase "excessive cost" would necessarily lighten the burden or indeed dispel the cloud of confusion.

Do I understand the Minister to say that the BATNEEC principle will not, in any way, be related to the profitability of the company as outlined by Senator Doyle but would be related to damage to the environment? Will standards be set down for a particular type of industry across the board, which will be expected of that industry and which the Agency will work out in advance. Would the Agency have a set of criteria regarding what would be suitable for that particular industry?

Could I also ask the Minister to address the point that retrofitting an existing industry with new technology to reduce emissions can be a slightly different situation especially when it comes to costing compared with insisting on certain technologies on a green field site so that the emissions are kept to a standard. I fully support the points made that we should be standard driven in this country rather than hung up on costs and other considerations. We must insist on preserving the existing quality of our environment.

Differing conditions will apply to new and to existing industries. In section 5 (2) we make that distinction:

(2) For the purposes of subsection (1), regard shall be had to——

(a) in the case of an activity other than an established activity—

(i) the current state of technical knowledge,

(ii) the requirements of environmental protection, and

(iii) the application of measures for these purposes, which do not entail excessive costs.

A green field site would be a new activity under this legislation. The implications for the environment, together with the state of technical knowledge and the question of costs, are all taken together for the purpose of defining the technology. There is slightly more leeway in relation to established activity and it is only reasonable that that would be the case.

Is amendment No. 27 being withdrawn?



Question put: "That the words proposed to be deleted stand."
The Committee divided: Tá, 20; Níl, 15.

  • Bennett, Olga.
  • Byrne, Hugh.
  • Cassidy, Donie.
  • Dardis, John.
  • Farrell, Willie.
  • Finneran, Michael.
  • Foley, Denis.
  • Haughey, Seán F.
  • Honan, Tras.
  • Kiely, Dan.
  • Lydon, Don.
  • McGowan, Paddy.
  • McKenna, Tony.
  • Mooney, Paschal.
  • Mullooly, Brian.
  • O'Brien, Francis.
  • O'Cuív, Éamon.
  • O'Keeffe, Batt.
  • Ryan, Eoin David.
  • Wright, G.V.


  • Cosgrave, Liam.
  • Doyle, Avril.
  • Harte, John.
  • Hederman, Carmencita.
  • Hourigan, Richard V.
  • Howard, Michael.
  • Jackman, Mary.
  • Manning, Maurice.
  • Murphy, John A.
  • Naughten, Liam.
  • Neville, Daniel.
  • Norris, David.
  • O'Reilly, Joe.
  • Ross, Shane P.N.
  • Upton, Pat.
Tellers: Tá, Senators S. Haughey and Wright; Níl, Senators Cosgrave and Neville.
Question declared carried.
Amendment declared lost.

Amendment No. 29 is an alternative to amendment No. 28 and both may be discussed together.

I move amendment No. 28:

In page 11, subsection (1), line 6, after "circumstances", to insert "in particular the need to prevent environmental pollution".

On the previous amendment I tried to make my position clear, that I do not believe the concept of the best technology can be separated from the question of cost because almost by definition the best technology is the one which does the job. At the same time, we should not get away from the precise objective of this Bill. Section 5 (1) says that the famous BATNEEC "shall be construed as meaning the provision and proper maintenance, use, operation and supervision of facilities which, having regard to all the circumstances, are the most suitable for the purpose." That may be reasonable and all circumstances should perhaps be considered, but the most important circumstance is what the agency is supposed to be about, which is the prevention of environmental pollution.

It is extremely important in dealing with the issue of the best available technology not entailing excessive cost to be very clear that whether or not we have disagreements about what constitutes excessive cost and the priority, the Bill's objective is the need to prevent environmental pollution. That ought to be clear, both for legal reasons and for the public's sake and also in terms of what this agency is supposed to do, which is to convince the public of its worth, its independence, its integrity and its reliability. Its brief in the area of best available technology should be clearly spelled out as an obligation to prevent environmental pollution. I would not dispute that the spirit of what I propose is contained or is aspired to in general in section 5 and in other sections of the Bill, but in this particular case where we are attempting to define a controversial and hard to grasp concept, it is important that our attempt at preliminary definition ought to express the need to prevent environmental pollution.

The point made by the Senator is already covered in the Bill. I will be happy on Report Stage to accept the amendment in this form or words to this effect, if that is in order.

My amendment, No. 29, is practically the same amendment as by Senator Ryan's. I welcome the readiness of the Minister to examine the possibility of having this amendment included on Report Stage. The amendment is well worth including in the Bill.

Amendment, by leave, withdrawn.
Amendments Nos. 29 and 30 not moved.

Amendments Nos. 31 and 32 are related and may be discussed together.

I move amendment No. 31:

In page 11, subsection (2) (a) (iii), line 12, after "costs" to insert "in relation to the risk of environmental pollution which the Agency believes exists.".

My amendments relate to the issue of cost. I would not for one second insist on precise wording here but there is a principle involved which is that costs should not be assessable in isolation because the cost of reducing the proportion of a contaminant or a pollutant in the atmosphere from ten parts to one part per million may well be excessive or may be small; what is important is whether that cost is necessary because of a perceived threat to the environment. That is why, in the case of subsection (2) (a) (iii) —"the application of measures for these purposes which do not entail excessive costs." I propose that added on to that should be the phrase, "in relation to the risk of environmental pollution which the Agency believes exists". In other words, it is not to be the function of the agency to assess the risk of environmental pollution connected with the particular activity and then to adjudicate on whether, in the light of all the circumstances we have described earlier, the requirements it imposes are excessive in terms of the risk involved. We are involved.

I am deliberately using the word "risk" here because risk is something that particularly people in the environmental lobby are very fond of. It is an important concept because risks differ and sometimes we accept risks and sometimes we do not. For instance, we all accept the risk of motorcars, even though it is probably one of the greatest hazards that one could ever associate with human living. I tell my students that the safest time they will spend in their adult life will be working inside the gates of a chemical plant. The greatest risk is probably every morning when they come from upstairs to downstairs in their own homes. The risk of a serious accident to them is more likely while they drive to or from work or as they walk to or from work or, God forbid, if they try to cycle to or from work the risk of a serious accident is even greater. Inside the gates of a well run chemical plant the risks of an accident which would involve serious loss of life or injury to themselves are considerably less than they would be in many other areas of human activity.

Risks become more or less acceptable and you cannot put a number on a risk. There are obviously two things involved. One is the probability of something happening, the second is the scale of what is likely to happen. It is the probability and the scale of the possible incident that determine whether a risk is acceptable. There can be a human element involved in personal risk taking. On society terms, the way in which a risk is deemed acceptable or not is, first, the likelihood of it happening and, second, in the event of it happening how large is the possible consequence.

There is an expanding literature on environmental protection in the whole area of quantifying risk. That is why I deliberately put the word "risk" in here, is increasingly a term which can be subject to good experienced judgment. It can be quantified. Therefore, it seems that the best way to circumscribe the legitimate concern not to impose excessive cost is to impose a duty on the agency, as I have done under both amendments, to adjudicate on costs in relation to the risk of environmental pollution which the agency believe exists. The risk would be the probability of an incident and the possible scale of such an incident. It seems that it circumscribes considerably the freedom to claim excessive cost of itself as a reason for getting away with environmental pollution.

I would like to support Senator Ryan; I will not rehash the arguments which he has already given. I would have preferred to have done away with that BATNEEC concept and that is why I voted against it, but that has not happened. It seems that this amendment is helpful because it allows the agency to determine what is excessive cost. That can only be done by taking into account the potential damage to the environment if certain procedures are not undertaken. It is an appropriate amendment and I certainly would support it.

Obviously, the risk of pollution would be one of the circumstances which would determine whether excessive cost was involved. If something stands a chance of causing significant environmental pollution, I would hope the agency would not licence the activity. There is a duty in section 81 (3) not to licence anything that would cause significant pollution. Like my attitude to Senator Ryan's last amendment, I am happy to look at this on Report Stage. I have no basic disagreement. I think it is probably covered already in the Bill but if it makes the Senator happy, we will have a look at that, too.

My happiness is becoming positively touching. I am quite happy to withdraw the amendment in the light of the Minister's approach.

Amendment, by leave, withdrawn.
Amendment No. 32 not moved.

I move amendment No. 33:

In page 11, subsection (2), between lines 24 and 25, to insert the following new paragraph:

"(c) the provisions of paragraph (b) shall only apply for a period of five years from the coming into operation of this section,".

I am concerned about this. I do not want to go off at a tangent about this but I am fairly sure at this stage that the amendment as it stands is inadequately worded to meet my objective. What I am concerned with here is perhaps understandable, although I am not entirely sure that it should be concern — for established activities should not last forever. I said on numerous occasions that many of this country's environmental problems are not from new industries, modern industries or from multinationals, even though my left wing soul would love to believe it was an international capitalist conspiracy. In fact, it is not. Many of the industries that do most of the damage are much closer to being co-operatives of one form or another than they are to being international capitalism.

The principle is that the legitimate concern that everybody should not be landed with enormous bills immediately should not be a part of our permanent environmental protection legislation. I do not want to argue about five years, four years, or six years. There has to be a time when everybody decided to shape up to proper standards or get out of the business. We cannot have people perpetually complaining on the grounds that they have been there a long time and that it would cost a lot of money. They have five years, six years, or four years to get their standards up to the standards of everybody else, or else we should close them down. Otherwise we will not really achieve what we want to achieve — which is the credible position of being legitimately the greenest country in Europe. It has happened so far by accident. Other countries are better at enforcing their own environmental regulations than we are. We have simply had an advantage because of our underdevelopment in many cases and we have not had their problems.

If we had developed as fast as some other countries over the last 20 years I dread to think of the state the country would be in at present. It was not by virtue of magnificently far sighted environmental protection legislation that we got this far. We are very fortunate to be here. Many of the industries that took advantage of our fairly laid back attitude to the environment when it was unfashionable to be concerned about it are a number of the established activities that are giving some legitimate room for concern.

Some of the phrases in the Bill are understandable in the short term but are not acceptable in the long term. Section 5 (2) (b) (iii) refers to the cost which would be incurred in improving or replacing the facilities in relation to the economic situation of activities of the class concerned. In other words, for an established activity, the agency would have to look at the whole industry. Because of the year that is in it, I was thinking of the beef industry in a bad year. The fact is the meat industry have less than 100 per cent record in terms of their environmental record. Would they be able to argue that because there has been a serious international slump in the beef industry the question of enforcing high standards of protection should be postponed indefinitely? It seems that the only way is to give a signal — and I do not care if it is even ten years, that from a particular point, every activity in this country which comes under the general concern of the Environmental Protection Agency, will have to meet the same standards. Otherwise, we will be giving a signal that certain activities can continue indefinitely and we will create an understandable sense of grievance among some sections of industry, and particularly the more modern section, that they are being burdened with costs and that other people apparently are not being burdened with the same costs. That type of thing is far more liable to cause problems about future investment than universally applied standards in my view.

I believe that paragraph (c) of my amendment —"...shall only apply for a period of five years from the coming into operation of this section"— contains a principle, whatever about the details of it and would require some consequential amendments.

I certainly support what Senator Ryan has said in relation to the principle involved. I feel that perhaps Senator Ryan is being generous in allowing five years. I would like to see the time span somewhat shorter than that. I presume that the reason this derogation, as it were, is given to existing industry is because of the impact which achieving certain environmental standards would have on those industries, and the difficulties it might create in relation to jobs lost and so on. You have to balance that against the long term damage which the failure to impose standards will create. I think that long term damage will be much greater than the short term gain which will result from allowing industry to continue to produce material and create problems at standards which are unacceptable.

While I have great sympathy with the points being put across, there are some practical problems. For example, if a new activity is licensed under this Act — as I hope it will be next year or the year after and certain technology will be specified — when that licence comes for review again in four years' time, is it reasonable that we should have to apply a whole new set of technology even where the industry might have invested something like £100 million in plant and technology, and so on? I am not sure that that would be fair although, of course, technology has to be updated continually. Otherwise it would be like expecting someone who has a five year old car to adapt it to the latest standards in the new models.

In relation to emissions, environmental pollution, and so on, established activity would have to be to the same standards and the same criteria as new activities when activities were being licensed. In relation to the actual provisions so far as the technology is concerned I am not certain it would be desirable to expect an industry that has invested heavily in plant and technology to completely change that in a short period. We have also, of course, got to bear in mind the lifespan of an industry. What I would like to do is to discuss with my advisers the implications of putting in a time limit in the way Senator Ryan asked and, maybe, without giving any particular commitment we could talk about that again, if that is in order.

Amendment, by leave, withdrawn.
Amendment No. 34 not moved.

I move amendment No. 35:

In page 11, subsection (3) (a), line 31, after "specifications." to insert "In making such specifications the Agency shall have regard to the need for an effective precautionary approach to safeguard the environment where the Agency has reason to believe that damage or harmful effects are likely to be caused although no definite scientific proof of such effects exist."

Here we have the famous precautionary principle or one version of the same precautionary principle, which, I understand, was much lauded by the Minister's senior colleague in his environmental action programme of last year. It is the principle that if we cannot be fairly sure that an industry is environmentally acceptable we should not take the risk. It seems to me, therefore, that in terms of assessment of best available technology not entailing excessive cost there is a case to be made that in terms of the specifications in subsection 3 (a), the agency should not just look at the existing situation, or should not simply be guided by proven scientific information. What I have said in the amendment is "In making such specifications the agency shall have regard to the need for an effective precautionary approach to safeguard the environment where the agency has reason to believe that damage or harmful effects are likely to be caused although no definite scientific proof as such exists." I really would want to counsel caution about science. Science is a negative thing in many ways. It cannot prove something is safe. All it can prove is that we have improved its dangers. There may well be areas — and it is worth addressing this issue — for further consideration. I heard an eminent west German as he was then, a German academic, lecturing on toxicity and toxic substances three years ago. He was talking about the way toxic substances were quantified and characterised in Germany. He said that of the list of substances at that stage 25 per cent had been shown to be carcinogenic. He expected in the next three to five years that another 25 per cent could be shown to be carcinogenic, but he was not sure which 25 per cent it would be. In the way the information is developing, many substances that are currently not proven to be carcinogenic are being discovered to be precisely that. It is a rather chilling fact that most substances that come into circulation in the marketplace or come into being discharged into the environment that are proven to be carcinogenic are, to put it crudely, proven so by the counting of dead bodies by epidemiological studies rather than by any other form, because most of them are subjected to animal tests which show no carcinogenic effects. Unfortunately, animal tests, even if one accepts their ethical base, are no guarantee of human safety. Things can be perfectly acceptable to animals and turn out to be carcinogenic to humans. Things can be carcinogenic to animals and turn out to be safe for humans. We are in the process of perpetual learning. The story I tell my students is about the vinyl chloride monomer which is used to make PVC and which in the thirties was being tested as a possible anaesthetic. In the seventies it turned out to be a carcinogenic causing liver cancer. I am not criticising the medical profesion. It is the way the world goes.

Risks are discovered later. Therefore, if the agency is looking at a particular technologies it ought to be able in our interests to conclude that there are probable risks at this stage in certain levels of emissions that justify and specify what is BATNEEC for a particular class of industry, even if there is not hard scientific evidence. As I have said, hard scientific evidence can often — not always — come too late and come as a consequence of something happening to people. I do not think it should have to always do this, but it should not be constrained within absolute scientific limits of scientifically proven risks. The problem with scientifically proven risks is that it is only after a thing has happened that you actually have the scientific proof. Otherwise, you are simply assessing probability.

The problem about risk, which Senator Ryan has discussed at great lenght, is the fact that the risk may be there, despite the fact that you are unable to prove it, scientifically. Inevitably, in these matters decisions are going to have to be based on what essentially amount to value judgments. It is right that a lot of those decisions finish up on the desk of the appropriate Minister who ultimately carries the can nationally for making those value judgments. People can be very misled about the capacity of science to the extent to which it has developed. There is a tremendous amount of ignorance still there. There are many more discoveries that we will be making as time goes by which will clarify many matters in respect of areas we thought were safe or, for that matter, which we thought were dangerous.

I support the principle of the amendment. It is an amendment that is very difficult to word exactly because, in a sense, it is aspirational. It is looking for the best possible situation. I am not sure that it is easy to give a very specific, concrete definition to something like this. There is this whole question of the precautionary principle. How do you know what precautions need to be taken? I do not know whether this is the very best possible wording. I agree substantially with Senator Ryan, particularly because of the time lapse that occurs in determinig risk scientifically. I say this because I looked into the background of this precautionary principle. I remember reading a number of cases, including one in India. It was not the celebrated one at Bhopal but it was something fairly similar to that during which, for a period of 16 years people had been making representations but there was no scientific proof. It took 16 years for that proof to arrive. By the time it had arrived and had been scientifically determined a number of people had their health adversely affected and I think, in fact, there were a number of fatalities.

That is the nature of the collection and publication of scientific evidence in learned journals, and the establishment of fact and so on and so forth. Really, if one can avoid that time lapse of 16 years, thereby preventing people having their health affected or, indeed, dying, then so much the better. A precautionary principle is such a vague thing that I think once again we are left with what, as Senator Upton said, is essentially a value judgment.

I am in sympathy with the principle Senator Ryan has enunciated in this amendment. If it is helpful to have this pious aspiration in the Bill then so much the better. I am not sure how binding this would be in legislative terms. Who determines what is an effective precautionary approach? Does one have to examine every single hypothetical situation? It is very wide. I approve of the principle. I am not sure whether this is the best wording, I am not sure whether it is possible to achieve a very good wording, but the principle, I think, is very important and has been shown to be important.

I share many of the sentiments expressed by Senator Ryan and Senator Upton about the deficiencies of science although I find myself more in agreement with Senator Norris. I agree that there has to be a precautionary approach. That is what the Bill is about but to imagine that the agency can unilaterally decide what is damaging or harmful, without any reference to any objective criteria, is vesting powers in the agency which go well beyond justice and prudence. A question has been asked about the negatives in relation to science. In relation to say, mad cow disease, the weight of scientific evidence overwhelmingly would suggest that there is no risk of transmission of that disease to the human, but if the Minister for Agriculture and Food were to come into the House and be asked could he guarantee absolutely that that would not happen he could not say he could guarantee it. It would be impossible for him to give that assurance.

One of the deficiencies of science is that it cannot establish total objective guarantees about the situation. If I was asked if I expected to drive home safely this evening and get home, my answer would be "yes". Can I guarantee that I will not be killed? The answer is "no". That is the problem I find with the wording. While I accept that there must be a precautionary approach that is the thrust of the Bill, but it vests very wide powers in the agency, almost to the point that if somebody had a vexatious complaint that they would be able to have it fully investigated and thrashed out by the agency. That part of the amendment goes too far.

The precautionary principle is essential. We must have it built into the Bill. It is interesting to note that in the environment action programme from the Minister's Department — a splendid document — it was clearly said that the Government would deal with environmental problems in the forthcoming decade with consideration of the principle of precautionary action, even when there is no definite scientific evidence to link emissions or discharges with deterimental environmental effects. That seems to be fairly clear. My amendment No. 169 is trying to do the same thing. I tried to be more specific in saying that no substance or material shall be discharged into the environment in significant quantities unless it can be reasonably shown that such discharge will not cause either widespread long term or irreversible damage. By putting that in I tried to make the section specific. It seems to me that the principle is quite well established. Senator Upton will know that drugs are not allowed go on sale until they have been properly and adequately tested, and until they can show and prove that they will not cause damage to people, babies or pregnant mothers. That seems to be a principle. It is something similar to that that we are looking for here, that the agency would not give licences out unless the precautionary principle is built in.

This is where we get into the aspirational and the real. With regard to the aspirational I could not disagree with much of what has been said but when it comes to putting flesh on the beast and putting that into the law it becomes extremely difficult. The greatest precaution of all is not to let things happen. Virtually everything which can be licensed comes under the First Schedule. If we were to adopt a precautionary approach we would say if there is a risk let us not go ahead. Almost every single thing we propose to licence carries a risk. New developments in these areas can pose a risk in one way or another.

Senator Hederman's amendment which we will deal with later proposes to ensure that the agency must prove scientifically and legally that something is not going to cause a problem. Quite honestly, it would be an absolute horror to introduce that in a legal sense. It would virtually mean that every single activity licensed by the agency would be open to legal challenge. It would cause an enormous amount of problems. For that reason, I sought to deal with the principle of precaution, prevention, and so on, by way of a definition which was mentioned when we were talking about BATNEEC, where I said that environmental protection includes the prevention of pollution and the term "for the purpose of environmental protection" is used widely throughout the Bill where we talk about the prevention of pollution. I felt that that was the most appropriate way to incorporate the very laudable principle of precautionary action. I do not know whether that is acceptable to the Senators, but I think the alternative suggested by Senator Ryan would virtually mean that every single decision of the agency would be open to legal challenge on the basis that there was a risk of a risk that something could go wrong.

The Senator's amendment refers to a situation where the agency has reason to believe the damage or harmful effects are likely to be caused although there is no definitive scientific proof. I agree you should not have to wait for definitive scientific proof or until something was so obvious and all of the problems have occurred before action was taken. However, to put it in by way of the definition of environmental protection would virtually mean that nothing would be licensable unless you went the whole way to the court for the agency to prove that it was not going to cause any particular harmful effects. That would be extremely difficult and restrictive and cause further problems for developments.

Progress reported, Committee to sit again.
The Seanad adjourned at 4 p.m. until 2.30 p.m. on Wednesday, 24 April 1991.