Environmental Protection Agency Bill, 1990: Committee Stage (Resumed).
Question again proposed: "That section 38 stand part of the Bill."
The only remaining issue I want to pursue is the form of words in section 38 which seems to leave the agency as the arbiter of interpretation of the phrase "confidential information". The phrase in subsection (2) is "confidential information includes information that is expressed by the Agency to be confidential..." That is a classic bolthole definition. The words will mean what the agency wants them to mean. The only information that should be confidential is information where we can identify an objective reason for retaining its confidentiality. Given the tradition of this country that everything that is not specifically and categorically identified as being open to the public is kept private, any State agency like this operating in the ethos in which our State operates, will minimise disclosure where it does not have to do the opposite. When you let the agency categorise what is confidential by its own criteria without, as far as I can see, any guidelines, then everything that is not covered by section 107 will become confidential. I can see no reason why, if an officer of the agency conducts an inquiry prior to the granting of an integrated pollution licence, that his report, which is essentially an adjudication on the technical questions, should not be published. An Bord Pleanála do not publish their inspectors' reports.
I regard it as particularly outrageous that a balanced, detached, objective review of the issues, which is the basis on which An Bord Pleanála make a decision, is a secret document. I never understood that. My view is that those documents should be made public. If we leave the wording in this section in such a way that the agency is encouraged to make life easier for itself by keeping things confidential, then the basic objective of this Bill will not be met.
The Minister and I are entirely at one on the principles behind this legislation and the need for it, but if we create a situation where, for instance, the agency in terms of much of its internal work is as secretive as An Bord Pleanála the same problems will arise as have arisen with An Bord Pleanála. I have no problem, for instance, if either an Bord Pleanála or this agency decide not to implement the recommendations of a report made by one of its own officers, but I have a problem about the fact that they do not have either to justify that decision or explain why.
I do not think any agency in our State should be able to take decisions without having the capacity to explain in intelligent, coherent English why it took that decision. If you keep confidential a great deal of the documentation that will be at the disposal of the agency, outside of what is called `environmental information' under section 107, or if you leave it in a situation where they can decide what is confidential, then we will have secrecy again. This country is overburdened with State secrecy. Along with centralised power, overburdening secrecy is the other great disincentive to either democracy or enterprise in this country. I appeal to the Minister to think again about a definition of confidential information, something which incorporates what she thinks is necessary, or even to allow her to make by regulations — which could be amended reasonably expeditiously — a definition of what is confidential information. But to leave it entirely in the hands of the agency to decide what is confidential is to invite them to take the broadest possible view of what they want to keep secret. That makes life easier. They are all human beings. All of us find life much easier if the things we say and do, do not have to be put under public scrutiny. Many of us in academic life, for instance, would not be wildly enthusiastic about having all of the paper work we do in connection with exams or, indeed, the scripts we mark, open to public scrutiny because we would not be entirely sure that we would be able to justify absolutely everything.
You have to be infallible in this business.
Senator Upton is now claiming infallibility for himself.
I expect it in other people.
I know the Labour Party have risen very much, particularly in their own estimation, but infallibility——
You are not shaping up like a candidate.
I am not a candidate; I am an elected Senator.
(Interruptions.)
Senator Ryan, without interruption.
Do not blame me. The definition of confidential information will cause enormous problems in the future, because it leaves it to the agency, outside of what is covered under environmental information, to classify everything else as confidential. If the agency looks through it, the ramifications of that for its advisory committee, employees, a committee or consultative group, a consultant adviser or any other person engaged by the agency, are that everything other than environmental information covered by section 107 can be classified as confidential. It is the instinct of the entire public service in this country, both political and administrative, to classify everything as confidential. It is much safer and easier. It reduces the possibility of scrutiny and accountability. It is not a good idea. It is a burden on this country. In this specific case it will be a major political problem if it is not sorted out.
I agree with the sentiments expressed by Senator B. Ryan. I do not believe that in relation to matters of information this agency should, in effect, be its own policeman. If that happens, inevitably the tendency will be to keep under wraps material which it would be in the public interest to make widely available. The other point about the whole idea behind this Bill is that it would encourage an open and frank attitude in relation to the environment. If these provisions are in there, I believe they will be used to slow down the flow of information. That would be highly undesirable. For that reason I am very concerned about the provision.
I do not want to repeat the debate we had last evening, but I think Senator B. Ryan is going away beyond the terms of his own amendment in what he has just said. As I explained, section 107 seeks to implement in full the European Community directive on access to information. The amendment which we adopted yesterday to section 38 seeks to put a limit on the agency being able to refuse anything that is required by that directive. It is not the case that the agency will be able to refuse information on licences and so on, except where they would involve a trade or commercial secret. If it satisfies the Senator that I can make regulations or that the Minister can make regulations to define confidentiality, that is provided for in section 107 (d) where the circumstances under which information can be refused will be specified in regulations.
I undertook yesterday — I thought it would satisfy Senator Ryan — to insert the word "shall" instead of "may". My view, his view and the view of the Government are similar. We want to make the maximum amount of information available to the public. As I said yesterday, in my experience where people have information fewer problems arise than where information is withheld. Senator Ryan made great play of the fact that in relation to an environmental impact study a local authority refused to make the results available. It is a requirement of the environmental impact assessment legislation adopted in February last that environmental impact studies are public documents and have to be made available.
If it is the case that some body carries out an environmental impact study and is asked for a copy of the results — obviously given that they would be doing it on a private basis for a company, one cannot, for instance, expect Eolas or the body compiling an impact study to give it out — certainly it is the responsibility of the public authority to whom that environmental impact study is submitted, if it is a mandatory environmental impact study, to make it available. I am not aware of circumstances where it is not. Certainly, the legislation requires that environmental impact studies are made available.
When I was framing this legislation, I looked at a number of provisions in legislation of other countries. It is extremely difficult to seek to define what "confidential" might or might not be. For example, if the Minister of the day asks the agency for advice in relation to particular matters with a view to bringing in new legislation, he should be able to receive that advice on a confidential basis. The agency will not be consulted if every single dealing they have with Ministers of the Government or other authorities is to be made public. I do not think that is necessarily desirable. In relation to environmental matters, decision-making procedures of the agency, registers and the details put on licences, will all be public.
We have provided in this Bill for public registers. We have provided that the monitoring results on individual plants and overall environmental monitoring will be made public. These are some of the things that cause problems at the moment.
If the agency, for example, is anticipating the taking of a prosecution against, or preparing a case with a view to the DPP prosecuting on indictment, the agency may need to make a number of visits or bring in particular personnel to visit an individual plant. If they were to make that information available to the public at that time, it could prejudice the taking of a prosecution at a subsequent date. Obviously, it would tip off the plant and the problem might not arise. It might be very hard to get the kind of information the agency would require. Therefore, it is necessary that the agency in some of its dealings will have to keep its information confidential. Otherwise, the operation and the functioning of the agency will be very much jeopardised.
The advisory committee will not be prevented from talking to their nominee body, or whatever and to suggest that any advice they are giving the agency or any advice sought from them cannot be made known to their nominating organisation is absolutely ridiculous. All the agency can specify as confidential are items relating to matters that require to be kept confidential in order to ensure the smooth running of the agency. We need to have some faith in this agency. We are not just setting up four directors and a director general, and letting them go off and do what they like. There are very specific provisions in this legislation and I must have some trust and confidence in the agency. It is the appropriate body to decide what should be confidential and what should not. In any event in the regulations under section 107 we intend to limit what can and what cannot be regarded as confidential.
Provision will also be made, as Senator Ryan asked, for an appeals procedure. If somebody is not satisfied with the decision of the agency there will be an appeals procedure written into section 107 to make sure that aggrieved parties have some right of redress.
In all the circumstances, I think this Bill goes a long way, and a lot further than most legislation, to make information public. It was the failure to do that in the past that has caused problems. The wider concept of whether every public document should be open for public inspection is part of a different debate. I personally support the whole concept of the Freedom of Information Act and the Taoiseach recently announced the Government's intention to examine the introduction of such a Bill here. That is a matter for more general legislation in relation to freedom of information and not just something that specifically relates to this Bill. This measure is about the environment and in so far as it is, it seeks to make the maximum amount of environmental information available to the public.
Question put and agreed to.
SECTION 39.
Question proposed: "That section 39 stand part of the Bill."
Given that the agency is able to define what is confidential, how are the public going to know that section 39 will be actually operated satisfactorily? Section 39 prevents people from communicating with the agency, with the director or with anybody else, with a view to improperly influencing the agency in consideration of any matter which falls to be considered or decided by it. If the agency itself is going to be allowed to decide in regard to the information that comes into its possession what is confidential, who is going to be able to ensure that the provisions of section 39 will operate properly? That is precisely one of the reasons why wide ranging powers of freedom of information are extremely important. It is in the area of communications with bodies that a lot of improper things happen.
I accept that in most cases most of the time these things do not happen. Some of the problems that have arisen with An Bord Pleanála would not have arisen if we had a more open society in which a considerable part of the correspondence between that body and various other groups was made public. We would not have so many problems if we did not have the ludicrous situation in my own part of the country where air pollution licences are changed by An Bord Pleanála, and the local people cannot find out what Cork Council said to An Bord Pleanála about its own air pollution licences. When the local company appealed to An Bord Pleanála we do not know what Cork County Council said. They said it was confidential. They would not tell. The file on the air pollution licences has those specific items taken out of it, so that the people in the community living near this industry do not know what the county council said to An Bord Pleanála when its own air pollution licence was being appealed to the board. We had the ludicrous situation where, in public, a company said all they were appealing against was the timescale for meeting certain standards, but the answer to the appeal is actually a reduction in the standards they have to meet. Nobody knows whether Cork County Council agreed to it, suggested it or did anything, because nobody will disclose the information. If you have that current of suspicion, then I do not understand how section 39 can work.
I fully agree with the provisions of section 39. We could go on forever about improperly influencing, but it is quite right that a provision like this should be included. If there is not transparency in the business of the agency it will be very hard to implement section 39.
Question put and agreed to.
SECTION 40.
Acting Chairman
Amendments Nos. 145, 146 and 147 have already been discussed with amendment No. 78. Is amendment No. 145 being pressed?
No. I understand when we discussed this point the Minister gave a commitment to discuss the matter with the parliamentary draftsperson and that on Report Stage the Minister would come back to the House.
Amendments Nos. 145 to 147, inclusive, not moved.
Government amendment No. 148:
In page 32, subsection (5) line 44, after "group" to insert "appointed under this section".
The phrase "appointed under this section" is being added to maintain consistency with the rest of this section and to avoid any possibility of overlap with other provisions of the Bill dealing with committees, for example, the advisory committee or the committee for the selection of the director general or directors.
Amendment agreed to.
Section 40, as amended, agreed to.
Section 41 agreed to.
SECTION 42.
Amendment No. 149 not moved.
Acting Chairman
Amendments Nos. 150, 151, 152 and 154 are cognate. Amendment No. 153 is related and all amendments may be discussed together.
Amendments Nos. 150 to 154, inclusive, not moved.
Question proposed: "That section 42 stand part of the Bill."
I would like to ask the Minister what precisely the Minister has in mind here? What type of units has she in mind? Would the regional units as outlined in the reform of local government, assuming that that Bill as it stands is passed, be used as units envisaged under this Bill? Are we talking about county units? Are we talking about health board units? What exactly has the Minister in mind under section 42? I would like to hear from her precisely what is involved, or what is envisaged, under this section.
This is a section where, again, I support Senator Naughten in his concern. Those of us who saw a whole region broken up into units saw the end result. I would like the Minister to elaborate on what she intends to do. Section 42 states "The Agency shall ... arrange for the performance of its functions, or particular functions, through such units". I have a horror of units of small regions and big regions. The Minister will understand my concern about section 42. I referred to it in my Second Stage speech in the House and I would appreciate if the Minister would elaborate on it for the benefit of Members.
It is intended that while this agency will be a national body with a national headquarters, it will be organised regionally or locally. That is important if the agency is to carry out its duties in an effective and efficient manner. There would be no point in having all the resources of the agency in say, Dublin, and staff and their equipment might be required in Cork or Roscommon. In order to facilitate the smooth running of this agency it is important that it be organised regionally. These units will have laboratory facilities, staff, equipment and whatever is required to carry out the functions of the agency on a regional basis. At present there are three regional laboratories, one in Castle-bar, one in Kilkenny and one in Monaghan. These facilities will, we hope, be taken over and used by the agency as will as other regional facilities in other regions.
In relation to Senator Naughten's query about the Local Government Bill, the regional advisory bodies provided for are advisory bodies between all the State bodies and local authorities operating in a region. The idea is that there would be co-ordination within a region between people involved in transport, the health services, local government and so on. They are being set up in the interim between the election in June and the next elections, to be established by the Minister to co-ordinate activities on a local basis within regions but thereafter it is intended that they would be elected bodies. I would envisage that there would be a link between the regional units of the agency and those regional bodies. That would be desirable.
What is important about these units is that they are providing staff, equipment and laboratory facilities in the regions so that they will not all be centralised. Every time the agency has to carry out a monitoring job that it will not have to take it all back to a central body. It is to provide for decentralisation of the staff and faciities of the agency which is desirable from a national point of view but particularly from the point of view of having this agency as effective and efficient as possible and to reduce the amount of time that is wasted on travel and so on.
I appreciate the Minister's statement but I would like her to clarify the meaning of "unit" as already pointed out by Senator Naughten. What constitutes a "unit" and is it on the basis of the units mentioned in the Local Government Bill?
I endorse what Senator Foley said. What I want to clarify is precisely what type of unit is involved. I agree with the Minister on the principle of decentralisation. I do not see why everything should be set in one particular location, why equipment and staff would have to move out to carry out a survey in different parts of the country. I agree with the principle of regional units. Did I hear the Minister say that she hoped the units mentioned in the Environmental Protection Agency Bill would dovetail with the regional units envisaged in the Local Government Bill?
That is a welcome step. This is why I mentioned the eight regions in the amendment which was ruled out of order. For the sake of getting it clearly on the record, the Minister would envisage the regional units as envisaged in the Environmental Protection Agency Bill and the regional units referred to in the local government reform Bill as having a complementary role?
Yes, obviously, they would have a complementary role. In the Local Government Bill the intention is to co-ordinate Government services at a regional level for effectiveness and so on, and to give people a greater input into regional policy, but it is recommended, for example, in the Local Government Bill that there would be eight regional units. The agency may decide to have only five regional units. They may feel they do not need eight units or they may have only three or four. Certainly it is envisaged that these units, and it would be desirable, would co-ordinate as far as possible and complement the units being established under the Local Government Bill so that environmental policy at regional level could be co-ordinated.
This Bill leaves it to the agency, in consultation with and the approval of the Minister to decide where it requires a unit. It may require a unit in county X and it may then only require one unit for a whole region of five or six counties. It is a question of, firstly, the level of activity that will be directly under the monitoring regime of this agency and in some areas it will be greater than others and, therefore, they may require more staff, more facilities and so on. In other areas they may simply require one such regional unit for a large region.
I do not want to give the impression that the country is going to be divided up into the same eight units as in the Local Government Bill and that they are all going to fit in together. That will not be the case. The agency will be taking over the units in Monaghan, Kilkenny and Castlebar. It may then have other units in other regions like Munster and so on. Whilst there will not be exactly the same units it would be desirable that they would fit in together and complement each other on the ground in the regions.
I welcome the Minister's reply. It is a well worthwhile step that the regional units envisaged in the Local Government Bill would have a contribution to make and an input into the units envisaged in the Environment Protection Agency Bill. I can appreciate that those regional units would have an important input and an important part to play in providing back-up service or advice to the environmental agency. I have no doubt about that. I welcome the positive comments of the Minister and look forward in the years ahead to those two bodies working in co-operation and in harmony with one another.
Question put and agreed to.
SECTION 43.
I move amendment No. 155:
In page 33, subsection (2), line 33, to delete "may" and substitute "shall".
This is not the most important amendment on the amendment list. It reflects something I have spoken about a few times here and of which the Minister is aware. It is the distrust many people have in regard to the willingness of local authorities to do their job adequately in the area of environmental protection. This may well be a matter of perception. The perception is not that the local authorities are particularly vigorous in their defence of the environment. I have alluded already to the ludicrous situation vis-àvis air pollution licences with the county council and an equally ludicrous situation about a dump in the city in regard to which a technical report was commissioned by the local authority which the local residents will be allowed to inspect in the City Hall but will not be allowed to have a copy of. What sort of bureaucratic meandering is that? Why people can read it but not have a copy of it is beyond me. That is why I have a preference for “shall” rather than “may”.
The terms in subsection (2) have to be agreed but it leaves them free to decline to provide the services if they wish. I am not entirely happy that if the Environmental Protection Agency needs particular services from a public authority that that public authority should be in a position to say no. That is the basis of the amendment. It is not one that I propose to spend the whole day arguing about.
I was interested to see in this amendment that Senator Ryan did not seek to change the word "may" in subsection (1) but did in subsection (2). However, I feel that this amendment is undesirable for the following reason. This would put a compulsion on a local authority or a public authority to agree to hand over staff even when that local authority might have a staff shortage. It is undesirable to have a mandatory requirement there. "May" simply allows for the orderly transfer of staff or services from one body to the next, but to place a mandatory requirement on a local authority simply to respond to the dictates of the agency if they were required to hand over particular staff when that local authority may be undergoing a huge staff shortage would be grossly unfair. "May" more than suffices in these circumstances. It allows the agency to make agreements with local and public authorities for the provision of services or staff transfers from one to the other.
Acting Chairman
Is the amendment being pressed?
I do not think we have got to that stage yet.
Acting Chairman
I was taking my cue from the Senator's statement that he was not making a major issue of this.
You obviously do not know what I mean by a major issue.
Anything less than a two-hour speech is a minor issue.
My comrades in the Labour Party are very restive this morning and I do not know why. There is a perfectly good reason why I would not have put "shall" in the second last line of subsection (1) and that is because it is perfectly clear the agency will have very little choice but to avail of these services since it will not have any other services. Subsection (1) says that for the purposes of enabling the Agency to perform its functions on and from the appropriate day, the Minister may, as an interim measure, supply to the agency any such services and the agency may avail of such services. Since it will not have any other services available to it it will not have much choice but to avail of them. It is precisely for the reasons the Minister has just given that I think it should be obligatory on public authorities to respond.
Let me draw the Minister's attention to what is in the subsection. It says: "... under this Act on such terms and conditions as may be agreed". It cannot be unilateral. All I am saying is the public authorities can agree the terms for making services available; they can argue about the terms and they can insist on getting a reasonable deal but they should not be able to simply say "We will not". We have, for instance, the trivial but ludicrous situation where Cork County Council does not participate in the EC scheme on beach quality because one of the senior officials does not think it is worthwhile doing. That is a discretionary power. You would think that everybody would logically and reasonably think it was a reasonable thing to do but Cork County Council decided not to. I do not know why and I do not think it is a huge issue because the quality of the beaches in Cork is excellent but somebody got this notion and that is what troubles me. The agency should not be able to unilaterally walk in and say we want X, Y and Z. It has to be by agreement, as the subsection says.
I have had the unfortunate experience on section 10 of the recent Housing Act, dealing with homelessness, of discretionary powers being given to local authorities and the best part of £750,000 a year lying unused in the Department of the Environment coffers because local authorities declined to use the discretionary powers that were given to them to spend money because they could not raise the 20 per cent they needed to raise to match the 80 per cent the Department of the Environment were giving. My experience of local authorities is that because of a tradition in this country they use their discretionary powers very unevenly. I think if this agency needs services then the body should not be able to say "no"; it should be able to negotiate terms and a reasonable deal. That is the difference between my wording and the Minister's wording.
It was made very clear on Committee Stage last week that local authorities, and I have had the privilege of being a member of one, have always been conscious of and concerned for the protection of the environment. I am quite satisfied that in the event of an urgent problem surfacing and requiring the help of officers of the local authority that the authority would give it the necessary priority to resolve the environmental problem. I do not think an amendment is necessary. The local authority will be the prime investigator of all pollution matters and anyone who is a member of a local authority will appreciate that. I fully support what the Minister said. We in local authorities are as much concerned about pollution problems as any outside body in the country.
I am not certain, if what Senator Brendan Ryan is arguing to-day is consistent with the argument we had here yesterday about reaching agreement with the trade union movement.
If we put in the word "shall" and if the local authority or public authority is forced to take action, then having agreed terms and conditions is somewhat irrelevant. They have very little option if they have to do it. I do not think it is desirable to put in the element of compulsion in relation to the performance of services for the agency or the secondment of people or whatever. I believe that leaving it the way it is in the Bill is far more desirable and will lead to a better relationship between the agency and the public or the local authority concerned. It is a small point but I think if we put in the word "shall" we might as well exclude "such terms and conditions as may be agreed" because if they have to give the services and the personnel their hands are very much tied and they will not have a lot of clout when it comes to terms and conditions.
On what my comrade, Senator John Ryan said, the vast majority of the prosecutions for water pollution have been carried out by the fisheries boards, not by the local authorities. With a minuscule staff relative to the staff of the local authorities the fisheries boards have done far more about prosecuting offenders who have been responsible for fish kills in particular than the local authorities have done. The figures are quite clear about that. The local authorities record, unfortunately, is far from good. However, I withdraw the amendment.
Amendment, by leave, withdrawn.
Section 43 agreed to.
SECTION 44.
Question proposed: "That section 44 stand part of the Bill."
This refers to an agreement between the agency and other public bodies that some function or service should be carried out on its behalf by a public authority.
Who will be responsible for the work? Will it be the public authority? Who will have the legal responsibility? Will it actually be devolved from the agency to the public authority or will it still be the agency that is the answerable body? It is a question of who is ultimately carrying the responsibility. Is it an agency basis in which the Environmental Protection Agency itself will still be responsible or will the public authority that is contracted to do it become the responsible authority? My second question is will any agreements between the agency and such public authorities be public documents? The agency must give the Minister a copy of an agreement to which this section applies. Will the public have access to the agreement or will it be another confidential document?
Since it is a reserved function it will be public anyway. Obviously the agency will be the body responsible but they will delegate by way of a legal agreement to another authority to do work on its behalf. In the final analysis the agency will be carrying the responsibility legally.
Since the principal task of the Agency will be to ensure the enforcement of discharge conditions and licences it must have the reserve power to enforce these when necessary and, therefore, it should be given the appropriate legal powers to enable it to enter land or premises. As the Minister said it will have these powers.
Question put and agreed to.
SECTION 45.
Acting Chairman
Amendments Nos. 156 and 158 are out of order. These amendments involve a potential charge on the Revenue. Is amendment No. 157, in the name of Senator Doyle, being moved?
Amendment No. 156 not moved.
I move amendment No. 157:
In page 34, line 31, to delete "may" and substitute "shall".
I am intrigued as to how Amendment No. 157 can be in order because it imposes a clear charge on the Revenue as distinct from the present position. It says the Minister "shall" make provision whereas the present section says the Minister "may".
I fully agree with the amendment. It should not be possible for a Minister in any year not to fund the environmental protection agency. It seems to me that as it stands the Minister may grant such amounts as may be sanctioned by the Minister for Finance. It effectively means that the Minister may give nothing or may give a small amount and wind up the agency de facto by simply not funding it. I am still intrigued about the procedural appropriateness of the amendment but I support it.
This amendment is really meaningless. Senator Ryan more or less drew attention to that. It would simply mean that the Minister for Finance could make a token sum available to the agency because he was required to do so, maybe £1 or something like that, and then he would fulfil his legal obligations, but that would not be much good to the agency. I know the Senators are concerned about the level of funding and so am I. The Government are committed to giving this agency the kind of funds that will allow it to carry out the functions being assigned to it.
The funding position of this agency from year to year will depend on the commitment of the Government of the day to make funds available. This amendment does nothing to either make that possible or not. It would simply mean that a token sum could be provided and that would not be much good to the agency. I do not think you can, by way of legislation, deal with the matter like this. The funding of public and State bodies is a matter for the year to year Government budget and Estimates and so on, and obviously that has to be approved by the Oireachtas each year. It is not possible in this legislation or in any other legislation to be able to tie the hands of a future Government in relation to any area of Government expenditure. Suffice to say in relation to the concerns the Senators have about expenditure and resources being made available to this agency, that I do not envisage that there will be a problem. There is a commitment by this Government to establish this agency and to provide resources by way of the staff and funding required to allow it to carry out its functions effectively.
Amendment, by leave, withdrawn.
Amendment No. 158 not moved.
Section 45 agreed to.
SECTION 46.
Question proposed: "That section 46 stand part of the Bill."
The perpetual presence of the Department of Finance annoys me. It surfaces in all legislation. No Minister can give approval for anything that has a sniff of money about it without the approval of the Department of Finance. If the Minister for Finance was actually to scrutinise all the things for which he has to give permission in all the legislation I have seen going through this House, he would never have time to leave his office to do anything else. I do not see why a Minister of the Government, the Minister for the Environment, could not be the one who would be satisfactorily capable of being trusted with allowing an agency like this to borrow money without the clause stuck in at the end that it be with the permission of the Minister for Finance.
I think it is a reflex at this stage that the Department of Finance in particular have created in all Government Departments, that once you mention money you must put in "with the permission of the Minister for Finance". It is only bureaucratic red tape. I do not believe there is going to be any adequate monitoring from within the Department of Finance to things like this because it is so frequent and so all-embracing in every piece of legislation that obviously it is no more than a rubber stamp and it is one we could do without.
Question put and agreed to.
SECTION 47.
Acting Chairman
Amendments Nos. 159 and 160 are related and may be discussed together. Is Senator Ryan moving amendment No. 159 on behalf of Senator O'Toole?
I move amendment No. 159:
In page 34, lines 38 to 43, to delete subsections (1) and (2) and substitute the following:
"(1) The Agency may accept gifts of money, land or other property upon such trusts or conditions (if any) as may be specified by the donor unless the trusts or conditions attached to it would be inconsistent with, or prejudice, the effective performance of its functions.".
This again is something that perhaps should be dealt with in one sentence. It simply says that the agency may accept gifts of money, land or other property. This is perfectly acceptable. It is a lovely, pious hope that people would actually be in the business of giving land, property or money to the agency. Nevertheless it is quite right that it should be allowed to accept them. The agency should not accept such gifts if there are trusts or conditions attached which would be inconsistent with its functions. That is perfectly reasonable too. But it is also perfectly reasonable that any trusts or conditions that are attached to gifts should be a matter of public record. That is what the two amendments seek to do.
My amendment in particular says that any details of any trusts and conditions attached to such gifts shall be contained in the report which the agency will produce on those gifts and conditions. That is a very small request. It is simply that if there are conditions the public should know about them. It is a simple guarantee that the principle of this section will be met not just in the letter but in the spirit by the public being aware of whatever conditions are attached to it.
The points made by the Senator are actually covered in existing legislation. He is anxious that the details of any gifts should be made public. He is also anxious that no gift will be accepted if there are conditions. Subsection (2) of the section reads:
The Agency shall not accept a gift if the trusts or conditions attached to it would be inconsistent with, or prejudice, the effective performance of its functions.
I will be happy to look at this for Report Stage but I do not think it is necessary.
It was a lawyer who drew my attention to the fact that there was no specific guarantee that the conditions or trusts would be published. That is all. I am not talking about Senator O'Toole's amendment. I agree with the Minister, I think Senator O'Toole's amendment is effectively the same as what is in the section. My amendment simply seeks to specify that the conditions should be published. The Minister says she assumes they will be, so we will leave it at that and if there is a problem somebody can look at it.
May I remind the House that Lord Chancellor Bacon, when accused of taking bribes, freely admitted that he did so but indignantly denied that it influenced his judgment?
Amendment, by leave, withdrawn.
Amendment No. 160 not moved.
Section 47 agreed to.
Sections 48 and 49 agreed to.
SECTION 50.
Acting Chairman
Amendment No. 162 is an alternative to amendment No. 161 and both may be discussed together.
I move amendment No. 161:
In page 35, subsection (1), lines 19 and 20, to delete "laid before each House of the Oireachtas" and substitute "presented to the Minister who will present it to each House for adoption".
Amendment, by leave withdrawn.
I move amendment No. 162:
In page 35, subsection (1), line 20, after "Oireachtas" to insert "for adoption".
The amendment is to insert after "Oireachtas""for adoption". I would appeal to the Minister to accept this amendment. It is important that the Houses of the Oireachtas would have the opportunity to discuss the annual report of the agency. It is only right and proper that both Houses should have the opportunity to discuss those reports. On the Order of Business this morning a request was made from this side of the House to the Leader for time to discuss the Ombudsman's report. It is only right that we should have enshrined in legislation the opportunity to have the report submitted to the Oireachtas for adoption. I think that is very important. I would like to see the Minister accepting the amendment because it gives an opportunity to both Houses of the Oireachtas to discuss the report and its findings, to see how the legislation is operating and if it is operating satisfactorily, to be able to identify and express difficulties if they arise under this Bill. This amendment will give both Houses of the Oireachtas the opportunity to do that.
Certainly, I would very much be in favour of the report being discussed in the Houses of the Oireachtas if that is what the Members at the time felt. I think to have a compulsion to have it adopted by the Oireachtas would imply in some way that the report was a non-report until it was adopted by the Houses of the Oireachtas. This will be a factual report of the agency's activities for a year. Any public body is entitled to produce a report of its activities and to have that report published. Whether the Houses of the Oireachtas adopt it or not is irrelevant to the fact that the agency has conducted its activities in a particular way and is going to make a public report. If the Houses of the Oireachtas wish to discuss it, it is a matter for the procedures of this House. There should not be a mandatory requirement in legislation for the Houses of the Oireachtas to adopt the agency's report. If the Houses of the Oireachtas decided not to adopt the agency's report, that would jeopardise the independence and impartiality of this agency. It is not desirable, therefore, that the report of the agency should be subject to political adoption after the agency carries out its work each year.
Reference was made to the Ombudsman's report. Could the Houses of the Oireachtas decide not to adopt the Ombudsman's report because they did not like what the Ombudsman was doing? The adoption requirement is fraught with danger although I accept that it would be desirable from time to time to discuss the agency's report. The procedures of the House are the problem, not the legislation. Nobody is preventing the discussion of these matters. It is a matter for the procedures of this House to allow for that.
Senator O'Toole's amendment, although it was not moved, would be undesirable. Sending the report first to the Minister would imply political vetting before publication. It is important that it comes directly to the Oireachtas, not through a Minister. That is the case also with the Ombudsman's report. I am making the point in case this matter arises at a further stage.
The Minister stated that if the Houses of the Oireachtas did not adopt the report it could jeopardise the agency in some way. Surely there would be something radically wrong if the Houses of the Oireachtas did not adopt the report? It would be time to get rid of the agency.
I see some merit in the Minister's reply. I put down this amendment to ensure that both Houses of the Oireachtas would have the opportunity to discuss the report because reports are often issued but not discussed. It is a pity that Oireachtas time is not given to detailed discussion of some reports issued by different agencies and bodies.
I appeal to the Minister to re-examine this on Report Stage. She will, perhaps, have a change of heart by then. I appeal to her to accept this amendment.
I do not agree with Senator Naughten. This is not necessary, if the report of the agency is placed before the Houses for discussion. It is quite clear in section 30 that that is to be done.
Since the establishment of the office of the Ombudsman his report has always been discussed in the Seanad. Senator Brendan Ryan made reference to it; the last time the Minister was in the House only three of us made a contribution to the debate. I am sure Senator B. Ryan will be around when it comes before us the next time.
I do not think the words "for adoption" are needed here. As regards doing away with the agencies or leaving them in place, there is no better place to do that than in this House if the said agency is not doing what it is supposed to be doing. I was amazed to hear Senator O'Toole saying that he would like the report to go before the Minister. If the Minister asked for the report to be made available to her before it came to us, Senator O'Toole would be here with amendments providing for the contrary. Now he wants the Minister to have the power because it is not in the Bill.
Consistency is not a feature of politics.
They get fewer by the day.
Amendment, by leave, withdrawn.
Amendments Nos. 163 and 164 not moved.
Question proposed: "That section 50 stand part of the Bill."
It is a peculiarity of our political perceptions that we set up a structure of confidentiality to create trust and then insert a subsection which says that the agency shall tell the Minister absolutely anything about its business that the Minister asks for without any safeguards whatever. It is done everywhere but I do not like it. Ministers of the Government should be subject to the law and to the usual system of checks and balances. Effectively, the agency shall supply the Minister with such information relating to the performance of its functions as he shall from time to time request. The Minister can ask them privately for anything without constraint or restriction. It is a sloppy way to operate a system.
A Minister cannot interfere with the operations of this Agency; it will be operationally independent of Government and the Minister. It is appropriate, however, that a Minister who has ultimate responsibility for funding and overall environmental policy of the agency should be able from time to time, to seek information from the agency in relation to its performance and functions. It is normal procedure between Ministers and State bodies under the auspices of their Departments. People are concerned that Ministers should not interfere with the agency's operations or lobby in relation to functions of the agency. It is desirable that the agency should supply requested information to the Minister. If the Senator, as he did yesterday and this morning, suggests that members of the public should be supplied with any information they request——
——virtually any information, except trade secrets or something to do with national security, a member of the Government should be entitled to seek and receive information. It is not an exceptional request.
As the only Member of the Oireachtas to introduce a Freedom of Information Bill in the House, I know what I am talking about on the issue of freedom of information. I have read freedom of information legislation of about a dozen different countries. I know what the exceptions are and it is mischievous of the Minister to suggest that I am looking for some sort of blanket right in the matter. I know what the constraints and limitations should be and I have been looking for those.
I am talking about the Minister's unwillingness to amend this Bill to grant public access to information. Every Minister dealing with State companies has access to information by right that shareholders in a private company would never have. Shareholders in a public company have limited rights of access to information while Ministers have a blanket right to information unprecedented in the private sector and in my view this invites meddling.
Question put and agreed to.
SECTION 51.
I move amendment No. 165:
In page 35, subsection (1) (b), line 30, before "monitoring" to insert "the".
Amendment agreed to.
Amendments Nos, 166, 167, 175, 176, 177, 178, 179, 181, 182 and 183 are all related and may be discussed together.
Amendment No. 166 not moved.
I move amendment No. 167:
In page 35, subsection (1), between lines 44 and 45, to insert the following new paragraphs:
"(f) the protection of animal and plant life and the enforcement of the Wildlife Act, 1976,
(g) the protection of the physical and cultural environment and the enforcement of the Local Government (Planning and Development) Acts, 1963 to 1990,
(h) the enforcement of any other legislation relating to the environment.".
All these amendments with the exception of amendment No. 166 are in my name which is the only link I can see between them. I am puzzled by the grouping. I take it that amendment No. 180 is missing there because it is going to arise later on in terms of fines and so on. Some amendments in this group deal with my concern that the agency should extend its functions into the wildlife area for example, more have to do with removal of sand from the seashore, or with monitoring industrial grants and taxation policy. It is hard to make a blanket statement covering all of those.
We are moving now onto a central part of the Bill, the function of the agency. The agency should have more supervision over the flora and fauna of the country but the Bill makes few references to those aspects of the environment. Section 4 (2) (c) (1) does make a passing reference to plants and animals. Amendment No. 167 is designed to bring animal and plant life under the protection of the agency. How can you separate flora and fauna from other aspects of the environment? I am suggesting that the agency has responsibility for the protection of animal and plant life and provisions in local government Acts may see to its enforcement. This would fill a loophole which is not filled by a larger European environmental agency.
The section as it stands refers to liaison with European environment agencies established under the European Council regulation. I ask what course this would take and whether this European environment agency is a useful body. My information is that it is a co-ordinating agency and far from being the kind of federal protection agency that we get in the United States. From the point of view of the environment it would be useful to have a European environment agency with real teeth but it does not appear to be so. On the surface, it seems a good thing that this State is party to various conventions on flora and fauna and wildlife habitats and so on, but they are not part of the domestic law. I suggest to the Minister that this area needs to be pulled in under the general direction of the new agency.
Moving to other amendments, beginning with amendment No. 175, let me continue that theme of protection of flora and fauna. Amendments Nos. 181, 182 and 183 belong with amendment No.167. Amendment No. 181 refers to an EC directive on the conservation of wildbirds which has not yet been implemented. There is a question of Ireland being sued over the failure to implement this directive. This amendment proposes that the agency should implement this directive on the conservation of wildbirds. Amendments Nos. 182 and 183 are both of a piece, dealing with conventions on the conservation of European wildlife. Neither convention is yet part of Irish law and the amendments suggest that the agency make regulations to implement those conventions so that they would become part of Irish law. These deficiencies, a Leas-Chathaoirligh, exist in the area of wildlife, migratory species and so on and it remains difficult to know how any national agency can deal with environmental matters which transcend its boundaries. It would be ideal if there were a federal protection agency which would supervise and co-ordinate all those issues but my information is that the European environmental agency is not such an effective body.
Other amendments here have no direct connection with what I have been talking about. Amendments No. 175 and 176 go together and it is proposed in amendment No. 175 that the agency should have as one of its duties the study of tax grants policies to see what effects they will have on the environment and to report accordingly to the Houses of the Oireachtas. Amendment No. 176 says with reference to Structural Funds that any project in respect of which EC Structural Funds are sought should be assessed by the agency for its effect on the environment.
Within the grouping suggested by the Chair there are quite a number of disparate topics and I am trying to take them in logical sequence. Amendment No. 177 suggests that we should centralise in the agency a broad range of functions concerning the environment. I have tabled these amendments mainly to ask the Minister what is the situation. The Office of Public Works are supposed to deal with wildlife parks and national monuments but to what extent should these environmental functions be transferred to the agency? Similarly the reference to An Bord Fuinnimh Nuicléach is now outdated because it has been replaced by the Radiological Protection Institute but any function in connection with the environment being exercised by that body should perhaps be transferred to the agency.
Removal of sand from the foreshore, as the House will know, has been a hotly debated issue in recent years because of its damaging effect on the environment and consequently on tourism. The Government gave a commitment in their January 1990 environmental action programme that the deplorable, indiscriminate removal of sand from the foreshore would be controlled by legislation or by some kind of executive action but there is no sign of its implementation yet. The amendment suggests that this should come under the general heading of licensing and that the licensing agent would be the Environmental Protection Agency.
Section 179 refers to the related question of designating areas of scientific interest which is suggested as an appropriate activity for the agency. The idea of giving a statutory basis and providing consultation procedures for the designation of areas of scientific interest was another commitment contained in the environmental action programme. I have covered a series of amendments which are difficult to treat because they concern quite disparate matters.
These amendments provide for the assignment of additional functions to the agency. The effects of accepting these amendments would have a major influence on the character of the agency, significantly extend its role and give it a function to make regulations, a function which has traditionally been carried out by Ministers. Some of what is proposed is unnecessary in that it is already catered for in the Bill as drafted. I refer to Senator Hederman's amendment which was not moved and to parts of amendments No. 166 and No. 177.
The effectiveness of the agency would be considerably diluted by the assignment of a vast range of additional functions which could only result in confusion as to the primary objectives, divert staff from all important licensing and control functions and lead to conflict with existing bodies. For example, part of amendments Nos. 166, 176 and 179 involve the agency in functions which are being satisfactorily performed by a number of statutory bodies and would result in duplication of work and staff and confusion in the responsibilities with no real benefit deriving. Legislative functions in relation to aspects of wildlife are the responsibility of the Wildlife Service of the Office of Public Works operating under the Minister for Finance; the agency is to be primarily an executive body and is not intended to supplant Ministers of the Government as the primary source of environmental legislation and policy.
Senator Murphy's amendment No. 167 proposes to extend the functions of the agency to cover protection of animal and plant life and the physical and cultural environments by giving it power to enforce the Wildlife Act, the Local Government Planning and Development Acts and other legislation in relation to the environment. The effect of Senator Murphy's amendment would require the agency to duplicate the functions of a large number of Government Departments and other bodies with the original purpose for the agency's establishment relegated to the sideline. There are already a number of State bodies performing satisfactorily the functions which Senator Murphy wants the agency to undertake. The Wildlife Service of the Office of Public Works is engaged in the protection of animal and plant life and the enforcement of the Wildlife Act, 1976. In relation to the cultural environment, the Heritage Council are responsible for its protection with planning authorities and An Bord Pleanála responsible for the built environment. There is a large number of other Departments and bodies with enforcement powers in legislation relating to the environment and not least the local authorities. It would be wasteful to give the agency a duplicating role.
It is not desirable or feasible to make the agency responsible for controlling an activity just because there is an environmental aspect to it. The Second Schedule to the Bill specifies enactments in respect of which the agency may be given additional functions to perform. Section 7 allows the Minister to amend the Second Schedule by order, subject to the approval of both Houses of the Oireachtas. While I have no intention at this stage of expanding the list of enactments, the procedure exists to do so if desired.
I can appreciate the desire of Senator Murphy in amendment No. 175 to have available to the Oireachtas information on how the taxation system and the industrial grants policy could be adapted in order to promote environmental protection. However, I do not know if the agency whose expertise will be on environmental matters will also be experts on taxation and industrial grants policy, the complexities and implications of which are probably well known to the Senator. By virtue of section 54 the agency may make recommendations to the Minister along the lines of Senator Murphy's amendment if the agency considers it appropriate. Senator Murphy's amendment No. 176 proposes to make the agency carry out an environmental impact assessment of every project for which European Community funds are sought. This amendment is unnecessary as there are adequate controls in place to ensure that the environment will not suffer any adverse effects from the infra-structural works being carried out to enable us to compete in the European Single Market.
The various operational programmes for the draw down of these EC funds which were agreed with the European Community put great emphasis on protecting the environment and stress the need for carrying out environmental impact assessments even in some cases where it would not be mandatory to do so under the terms of the European Community directive. This amendment would also place an enormous burden on the agency which would have to consider every project, big or small, and I do not see why those projects getting Structural Funds should be singled out for special treatment by the agency.
Section 69 will allow the agency to play a very important role in the operation of the environmental impact assessment procedure which covers significant developments and it has enough powers in the Bill to make recommendations and report on matters with which it is concerned. Senator Murphy's amendment No. 177 is unnecessary. The Second Schedule to the Bill lists the various enactments in respect of which functions may be transferred to the agency. Under section 7 the Minister may, by order, amend this Schedule, for example by expanding the list, but such an order would require the approval of both Houses of the Oireachtas.
Senator Murphy raised a query in relation to the European Council directive on wildlife. That has been implemented by Statutory Instrument No. 254 of 1986. If we were starting from scratch to set up our procedures for dealing with the environment in Ireland and if we did not have local authorities, the Office of Public Works, the Department of the Marine and a host of other bodies with certain environmental obligations, I could see some merit in throwing the kitchen sink and all in with this agency and having it do everything. But this agency is to perform a very specific function in the main: its main function which, perhaps, we will be discussing this afternoon, is to operate an integrated licensing system for those activities which pose the greatest threat to the environment particularly if something goes wrong. It is appropriate that we would have one national body with the expertise, equipment and resources to license those activities, to lay down the conditions under which they can operate and function and thereafter to monitor whether or not the conditions are being applied. It also, of course, will act as an advisory body to local authorities, the State generally, Government Departments and so on. Its third function will be to carry out general environmental monitoring, work previously done by An Foras Forbartha and since then by the environmental research unit of my Department. It is important that there would be one national body involved in carrying out environmental monitoring. Lastly, it would be involved in co-ordinating environmental research, education and so on.
I believe the list of functions that are being assigned to the agency are the appropriate ones at this time, but obviously the Bill is loose and flexible enough to allow additional functions, if it is felt desirable at any stage in the future, to be assigned to the agency, subject to the approval of the Houses of the Oireachtas. I think it would be undesirable if we could just willy-nilly assign additional functions without seeking the approval of the Oireachtas. It is important that when functions are being transferred from other bodies or other groups Oireachtas approval would be sought. That is one area where it is important that regulations could not be made without the approval of the Houses of the Oireachtas at the time.
In relation to the removal of sand from the foreshore, I share the Senator's view on that, particularly in regard to the situation in Ballybunion. The Senator is right. The Government gave a commitment in the environmental action plan published last year. I understand legislation is being prepared to deal with that. Under section 70 of this Bill the Minister for the Marine does require to consult with the agency in relation to the carrying out of his functions, which would include the removal of sand from the foreshore, the granting of licences for fish farming activities and so on. The Minister has to include in any licence granted the requirements of the agency. There is a compulsion that the views of the agency have to be taken into account in any licence issued. That gives the agency control over those matters relating to the Department of the Marine that have an environmental function.
In regard to the removal of sand from the foreshore, which is not a very technical or complex matter — I accept there is a problem with it — I do not believe it requires a licence. I agree that legislation is necessary and I understand it is being prepared.
In relation to other matters, like the Nuclear Energy Board, which is now going to the Radiological Protection Institute, again when we have a separate institute to deal with those kind of matters it would not be appropriate to have two State bodies both doing the same thing or having a particular role in relation to the same matter. That would be a waste of scarce resources and it would lead to duplication and confusion. What is important is that there is a good working relationship between them, particularly between all those bodies that have an environmental aspect to what they are about. Certainly I do not believe it is either desirable or necessary that this agency would have total responsibility for virtually everything that has anything to do with the environment.
In the other House this week we are discussing the whole question of decentralisation of power and the need to give more power to local communities and local bodies; and no doubt that will be the debate in this House next week. If we take that view, which I share, then we cannot also say we want more centralisation and more matters being diverted into one central body.
I think we have got it right in the Bill. I think the list of functions are clear enough to allow the agency to carry out a particular role. Initially, its main function will obviously be its licensing role, because that is where many environmental problems have arisen and is where the public have had cause to find difficulties in relation to the method for deciding on licence applications and so on. It is the lack of public confidence in the way the licences are decided at the moment in some cases that has caused many of the environmental problems we are trying to address. I believe the establishment of a national independent expert body, whose job will be to adjudicate on those licences where the activities can cause a major threat to the environment if something goes wrong, will alleviate in the main many of the difficulties and the problems of recent years.
Therefore, I regret I am not in a position to accept any of these amendments, because I think to do so would be to extend the agency's remit to a point where it would have a very confused role and where its main function would be much reduced as a result. I do not think it is desirable to throw in virtually the kitchen sink into the list of functions this agency will have to perform.
There is a great deal of merit in this series of amendments proposed by Senator Murphy because they seek to broaden the functions and responsibilities of the agency to cover all aspects of the environment. I believe all aspects of environmental protection should be centralised in one agency and one agency should have overall responsibility. The present position seems to be that the responsibility for various aspects of the environment will be dissipated over a whole series of agencies. I think that is highly undesirable because many of these agencies belong to other Departments whose primary responsibility is not the protection of the environment. The primary responsibility of the Department of Energy, which deals with nuclear protection and so on, is energy supply and so on. For that reason, it is very important that the functions of the agency should be broadened to cover all aspects of the environment.
The Bill is still entitled the Environmental Protection Agency Bill, despite a very long, and in many ways tiresome, debate about the Title of the Bill. If these type of functions are not going to be included, then the Title of the Bill is a misnomer to some extent.
Quite obviously, the Minister is adamant in her attitude. I should like to thank her for a very comprehensive reply. Many of her points are irrefutable. I accept that my amendments comprised rather a rag-bag of different topics but they were meant as Senator Upton suggested, to make the agency a powerful and comprehensive body. I am not going to press these amendments, I have made my case and I am content to let it rest. I hope the Minister will remember that she made the point that the Bill is sufficiently flexible to allow the agency to take on new functions if necessary.
The one area I am concerned about — and I would like the Minister to make a comment on this — is that environmental pollution is inescapably linked to flora and fauna. I am particularly concerned that the agency should have regard to the impact on wildlife and birds and all that animal kingdom of which we are now becoming so sensitively aware, and not before time. It is very much the agency's function to have regard to that. I am not convinced that the legislation, as it stands, gives the agency power to be effective in this area. It is compounded by the fact that wildlife, and particularly migratory birds and so on, are not exclusively a national concern. In that connection I am also concerned about how real this liaison is with the European Environment Agency. That is the one point on which I would like to be reassured. I must accept that we are not embarking on a whole new agency from the ground up and, in that connection, I have to accept the Minister's general point.
I share Senator's Murphy's view in relation to flora and fauna. That is covered in the definition section in page 10. It is also the case that when the agency are laying down guidelines and so on for environmental impact studies obviously it will be placing special attention on the need to look at the impact of a development on flora and fauna, which is required by the legislation.
We gave the agency a very general power. If there is any pollution incident they can make a report to the Minister, or can make a public report, if there is anything we have not foreseen in framing this legislation. It is not always possible to be able to predict with accuracy what might or might not happen a couple of years down the road. In relation to the environment sometimes things happen that we might not have predicted and they can cause major pollution problems. Therefore, a general power is given to the agency to be able to carry out an inquiry, to investigate and to be able to make a report in relation to anything that is not specifically covered in the legislation. I think that is important. There also will be provision for the agency to consult with, among others, the Heritage Council and so on. I share Senator Murphy's concern in relation to flora and fauna and the impact pollution can have on plant and animal life. It is covered adequately in the Bill.
Amendment, by leave, withdrawn.
On behalf of Senator B. Ryan I move amendment No. 168:
In page 36, subsection (2), lines 18 to 21, to delete paragraph (d).
The first proposal is to delete from the Bill the section which states:
(d) ensure, in so far as is practicable, that a proper balance is achieved between the need to protect the environment (and the cost of such protection) and the need for infrastructural, economic and social progress and development.
I would like to explain why Senator Ryan proposes that that be removed, and I fully agree with him. In my Second Stage presentation I made the case that the country was now full of people who were prepared to object to any proposal to build anywhere, to put a factory anywhere and that we had to get a balance between what was required for the development of the economy and what was also necessary in order to protect the environment. I do not have any difficulty with the general thinking behind that. We know nowadays that the reality is that people do their best to get planning permission to build a few houses somewhere and as soon as they have moved in they do not want anyone else building within ten miles of them. There is a very selfish attitude arising in that whole area. The same applies to building. People demand that employment be created, that factories be opened and that jobs be made available and, at the same time, say: "We do not want it happening anywhere near us." There is a conflict there.
The Minister in her previous answer referred to the concern for the flora and the fauna and to an earlier section, which I presume was section 4, in which there is a reference to that. Section 4 also outlines what environmental protection is and what is meant by it in the Bill. The proposal here is to delete subsection (d) which seeks to have a proper balance between the need to protect the environment and the need for infrastructural, economic and social progress and development. But in section 4 the Minister tells us what "environmental protection" is, and it is very clear. "Environmental protection" includes:
the prevention, limitation, elimination, abatement or reduction of environmental pollution...
In other words, there is no need to go any further than that in this case. The duty will be to protect the environment. The Minister has already outlined to us that that protection means not just prevention; it can also mean limitation, abatement or reduction.
We have already decided that environmental protection is a variable which will have to be assessed. By putting it in here we get the balance wrong, and it appears to me that we are going too far on the other side. It is enough to say that a licence must be granted under very strict conditions. It is enough to say that environmental protection should be this and not the other. It includes a reduction in pollution, the control of pollution and the abatement of pollution. I would hate the situation to arise where somebody would say, "We want to build a factory there in the middle of a very scenic area and we are justifying it because it will create jobs". That would be going too far on the other side. In order to find a balance between the need for job creation and the need to protect the environment, the Minister has covered that with the fairly extended definition of "environmental protection" in section 4. That is my argument in favour of amendment No. 168
I would also like to make a passing reference to amendment No. 170, which is included in the discussion. My desire there was to give this some teeth, to be able to take a pro-active role and to ensure that penalties are imposed on persons or authorities found to be in breach of the terms of this Bill or its Schedules. I want the agency in a very definite and specified way to have that power. I do not intend to develop that at this point. I have outlined in some detail the need to accept the amendment in Senator Ryan's name.
I just would like to make the point that it seems to me, apart from anything Senator O'Toole has said, that subsection (2) (d) is superfluous because it is so general. It is a counsel of perfection really. I cannot see how such a generality could be invoked as a legal basis of action one way or the other. I cannot envisage anyone invoking subsection 2 (d) as a reason for doing something or not doing something. It seems to me to be stating the obvious. In the interests of good, clear expression it should be dropped. That is rather a different point from Senator O'Toole's, but I am sure he would agree with me.
Generally, there is the requirement in subsection (2) (b) that the agency shall have regard to the need for a high standard of environmental protection. Subsection (2) (b) is probably as general as (d). The important thing is that the agency has to have a sense of balance in what it is about. Every development that takes place obviously has an impact on the environment. Whether one builds a house, a factory or whatever, it all impacts on the environment. What we are trying to prevent is unacceptable impacts on the environment, not prevent something that impacts on the environment. Therefore, it is important that we have a sense of balance and that when the agency is deciding in relation to licence applications it balances the economic cost as opposed to the environmental protection cost of any decision it is about to make. I think it meets with the requirements of all Members of the House. I have not heard anyone in the House who does not subscribe to that view: that what we are talking about is a sense of balance in relation to environmental matters.
I said at an earlier stage in this debate that I want to introduce the concept of a precautionary principle into this legislation and I gave the commitment that we would examine the possibility of introducing it in section 51. We are having discussions with the parliamentary drafts-people in relation to that. Although that was not referred to specifically, it is referred to in Senator Hederman's amendment which was not moved. I think we are at one in relation to the need for this agency to carry out its functions in a way that ensures that the environment is protected and that it is not an agency that is in any sense anti-development or anti-economic activity. It is pro-economic activity and pro-development that can be done in a way that is not unacceptable as far as the environment is concerned.
Therefore, it is important to introduce paragraph (d) of subsection (2) to spell out that quite clearly so that it is understood. It may well be argued by some who object to development of any kind that a particular development obviously would have an impact on the environment and who may argue that the impact is unacceptable for a whole host of reasons. It would be a matter for the agency to adjudicate and to take into account the need to have a sense of balance about what it is about. Senator Murphy said it is obvious anyway. Perhaps it is obvious anyway, but sometimes it is necessary in legislation to state the obvious or it might not happen.
Would the Minister not accept that section 4 outlines what environmental protection is about? There are a whole lot of things wrong with paragraph (d). It is very woolly, it is vague, it is generalised. Taking it out of the Bill does not weaken the Bill in any way, but I believe that leaving it in there does weaken the Bill. There is the need to take into account the proper balance, as the Minister has made clear. Any development will have an environmental impact, not necessarily negative or not necessarily an unacceptable level of impact. But this is something that will be adjudged, as time goes on on the basis of licences, etc. That particular line would be used by extremists on both sides. It would be used by people who would say, "We do not want any industry, whether it be light or otherwise, in our area because it disturbs the `proper balance' that should be achieved between protecting the environment and the need for infrastructure and economic development." I think it will be used time and time again by those people.
It will be used similarily by people who will be making the case for building and who will say, "Let us get the balance right. There is no balance in this particular area, it is all the same."
We are all aware that we have reached the stage where everybody objects to every thing all the time and no change is ever acceptable. I am concerned that it is going to tie us up in knots. It is just feeding extremism on both sides. It is giving a peg on which to hang objections to both the people who are opposed to protecting the environment and those who are in favour of protecting the environment. We are setting out to establish an Environmental Protection Agency, a means of protecting the environment. We said earlier in the Bill that the way we will do that will be to measure the impact of any development on the environment and, if necessary, that any pollution should be prevented, abated or reduced. This is highly qualified and modified earlier in the Bill and to me this paragraph is a weakening and dilution of the impact of the Bill as it stands.
Section 51 (2) (d) is a very important inclusion in the Bill. It should be there and it should not be deleted. The reason I say that is this. If you go back to section 4, it established what "environmental protection" is, but if 51 (2) (d) were not there it would be open to any individual to give grounds as to why some development should not take place. If it were shown that that had an environmental impact, then the consequences of leaving this out would allow somebody on a purely frivolous basis to prevent development which would be in the interests of the country and of the people. We seem to forget that people are part of the environment too and there is an impact on them as well. It has been repeatedly said that this Bill is not anti-jobs and not anti-industry. But, in my view, if you were to delete section 51 (2) (d) there would be an inference in the Bill that it was anti-jobs and anti-industry.
I would like to point out to the previous speaker that on the basis of this Bill people are not part of the environment. We discussed this earlier. The environment is clearly defined here and it does not include people. They may be part of the environment, but for the purposes of this Bill they are not. Let us be quite clear about it. That is the reality. Every development has an environmental impact but just because it impacts on the environment is not necessarily a bad thing, I agree with that point. But it is the measurement of that which is important.
I agree with Senator Dardis that (2) (d) is needed in this section. I do not know, perhaps Senator O'Toole will tell me, as he is very good at advising——
You know all about him. You could write a book.
When I write a book it will not be about Senator O'Toole. On Second Stage I think my colleague, Senator John Ryan, was as concerned as I was that we would create jobs, that decisions would be made with commonsense and that there would be nothing in this legislation to stop us creating employment. I think (2) (d) is absolutely necessary in section 51; it is not in section 4.
I appreciate the points made by Senator O'Toole but I honestly believe — and this is consistent with everything I said since this Bill came into the House — that we must get the right balance. It is very important that (2) (d) remains part of this Bill. While it is of vital importance that we protect our environment — our air, rivers and everything else — we also cannot fail to recognise that we have in excess of a quarter of a million people unemployed, we have huge numbers of people working on social employment schemes, youth training programmes and so on and that jobs are a very important part and will become a very important part of the survival of this country. We cannot forget that; we must remember that.
I think that leaving this section here is getting the right balance in the Bill. It is important that, while we do everything possible in this Bill to ensure that our environment is protected, we must also recognise that development and industry are vital for the survival of this country. Hence it is important that this paragraph remains part of the Bill.
I, too, would like to join in saying that I welcome this section. I am sure that all those involved in industry who have a concern for the environment but who at the same time also have a concern that there be a balance would welcome this section and indeed regard it as an essential section. What we are trying to do in this Bill is to show concern for the environment — a concern which has not always been present in the past — and avoid a situation in which we swing from one extreme to another. I feel that this is a very essential section to enable this Bill to achieve a true balance between protecting the environment on one side and encouraging economic development and employment on the other.
I am at a loss to see why anyone would have any great problem with this section. It all comes down to what a proper balance is. I think everybody accepts that there has to be a balance. I suppose the whole thing comes down on what "proper" is. "Proper" is not defined. This seems to me to be a rather pious aspiration which I can see no difficulty at all in going along with.
I surrender. I leave with my tail between my legs.
Amendment, by leave, withdrawn.
Amendments Nos. 169, 170 and 170a not moved.
Question proposed: "That section 51, as amended, stand part of the Bill."
I would be glad if the Minister could tell us a little more about the meaning of subsection (1) (e): liaison with the European Environment Agency. What significance has this? How important is it? Secondly, with regard to subsection (2) (c), why was it considered necessary to have the modifying clause in line 13 "in so far as it is feasible", that the agency shall have regard to the "polluter pays" principle in so far as it is feasible? Does this dilute or invalidate the general principle, because it is a very important principle, the force of which we have not really begun to appreciate? We need to realise that the polluter should pay for the legitimate use of environmental resources, just as an industrial firm pays for labour and other resources priced through the market. The environment is a resource. One of the reasons the environment has deteriorated is because it is largely free to those who pollute it. Therefore, the "polluter pays" principle is of the utmost importance. I am not too happy with the insertion here of what well may be a negativing clause. Those are two points on which I would like a brief comment from the Minister.
In relation to liaison with the European Environment Agency, that directive requires that each member state must have a national focal point. That would be a national body that would coordinate with the European Environment Agency and it is envisaged that the environmental protection agency would be the Irish national focal point for the European agency. It would also be hoped that the environmental protection agency would be able to receive funds for research from the European agency.
In relation to Senator Murphy's query about the "polluter pays" principle, obviously it is important that, where practicable, the polluter pays for any damage done. That would be the fundamental principle of the Government's approach to environmental matters for many years.
I was wondering would the clause "in so far as it is feasible" be used to have a negativing or a severely diluting effect on the "polluter pays" principle?
First, it will only be feasible if it can be established who was the polluter. Otherwise, you would not be able to make him pay. Sometimes it may not be necessarily practicable to make the polluter pay. There may be circumstances, for whatever reason, it is not possible to have the polluter pay. Obviously it is where it is feasible. If somebody commits a serious pollution offence and does not have any resources, obviously it would not be feasible in that case to make them pay. Something that is not feasible obviously cannot happen. I do not think it necessarily lessens the principle.
Question put and agreed to.
SECTION 52.
Acting Chairman
Amendments Nos. 171, 172, 173 and 174 are out of order as they involve a potential charge on Revenue.
Amendments Nos. 171 to 174, inclusive, not moved.
Question proposed: "That section 52 stand part of the Bill."
Section 52 could be considered one of the core sections of this legislation which will have a tremendous impact on our efforts to protect the environment. In the past 18 months we have put on the Statute Book a raft of legislation on environmental protection. In view of the fact that local authorities — and this is admitted by the Minister, Deputy Harney, and most of the Members of this House — have a vital role to play in ensuring that this measure is successful in its entirety in protecting the environment the Department of the Environment, and unfortunately as Senator Ryan indicated earlier the Minister for Finance, must also become involved in the matter. Every effort must be made to ensure that the necessary finances are available to permit implementation of the provisions of this Bill.
I would like all local authority members to assure the Minister that we are concerned and that we will take the necessary steps to ensure that the environment, which is so vital to the living standards of our people and the development of our tourism is protected. Priority will be given to the agency when it is set up and it is very important that the role of the Department of the Environment is not overlooked. As a member of a local authority, I place urgent emphasis on submissions made to the Department by my local authority, outlining in detail the need for finance to ensure that a certain programme is put in place to offset a serious pollution problem. Despite the emphasis and the urgency of the submission, we have at times had to wait for a considerable length of time before moneys were made available. I would like to emphasise the need for the Department to ensure that where a local authority submits an urgent case in connection with sewage pollution, perhaps, and where a scheme is submitted to the Department, that action is taken.
In view of the emphasis the Minister lays on the local authorities and their responsibility to protect the environment, the Minister and the Department must assure them that if an urgent case is submitted every effort will be made to make moneys available so that the problem can be resolved as soon as possible. We all welcomed the Pollution Act, 1977, but, I pointed out last night, when it came to the enactment of that measure we found at local level that, unfortunately, the Minister had not allocated the necessary funds.
In the context of this Bill I wish to emphasise that the local authorities have a role to play but that role cannot be fulfilled without the assistance and financial support of the Department of the Environment who have set up this agency and who are anxious that it should be successful.
I support what Senator J. Ryan has said. Without adequate funding from the Department of the Environment to ensure that we have proper sewerage treatment plants and dumps properly maintained we are all wasting our time here. That is the bottom line. We may as well forget about this Bill and about the agency if, for example, the local authorities are going to continue as probably the greatest polluters in this State. We have introduced much legislation but local authorities or health boards have no funds to implement the measures. It is all very fine putting legislation through, but if the local authorities or the health board or whatever agency is carrying out the work do not get the funds to eliminate the sources of pollution then we are wasting our time. We introduced, in the not too distant past, the Water Pollution Bill and the Abbatoirs Bill. No money was given to the local authorities to implement those two Bills. They may as well have never gone through the House. With the exception of a couple of pockets in the country they have not been implemented elsewhere. The vast majority of local authorities have not got the funds to implement them.
We had the Nursing Home Bill and the Child Care Bill which went through here. Again, there was no funding for them. This proposed legislation of 107 sections is a waste of the Minister's time and of our time if funding is not made available to the local authorities to eliminate the problems that exist. For example, we had a water pollution report recently on the condition of water in the River Shannon.
The only real sources of pollution, as far as Roscommon County Council was concerned, were the Roscommon town treatment works and the Strokestown treatment works. The local authority were the main polluter. That is because adequate funds had not been made available to the local authorities to modernise and update those treatment plants. Here we are putting through legislation which is very desirable, but if we do not get the money, if the money is not made available to local authorities to eliminate sources of pollution, then everything we have been doing here is a waste of our time and a waste of the Minister's time. This is why I feel very strongly that there should be a clear commitment by the Minister and the Government. Local authorities may be the sources of pollution, not because of any carelessness on their part — although last week one could have nearly interpreted from statements made by some Members that they were — but because of lack of money.
The only reason, of course, that the local authorities have not come to grips with the pollution difficulty is lack of funding. This is what worries each and every one of us here. This agency will be put in place. The director general will be appointed but if, as I see it, the greatest polluters do not get the finance to eliminate sources of pollution, then it is all a waste of time. My fear is that local authorities will not get the funding to eliminate sources of pollution.
I agree that to carry out a given policy you have to have the funds to do so. If the local authority or any other body does not have powers to control pollution and to play a role in environmental protection, funds in themselves will not solve the problem. Under section 52 we are discussing two essential aspects of the Bill. One is the power of the Minister, following consultation with the agency, to assign additional functions. This is absolutely essential.
We cannot look into the future with any certainty. Today we can see many aspects of environmental and pollution control which were not true of five, ten or 15 years ago. It is absolutely essential that we should have the powers in the future by ministerial decree and in consultation with the agency, to ensure that this legislation is brought up to date. Any new forms of pollution or any appreciation of new aspects or further sanctions can be readily and immediately brought in.
The other aspect of this section which is so important is that nowadays we realise that environmental pollution cannot be dealt with simply on a national basis. It is essential that the powers co-operate on an international basis.
Senator Conroy just made a very valid point about the necessity for additional functions. However, the provisions of these extra functions will really be a waste of time unless the appropriate extra finance is made available. We have to keep in mind that quite an amount of pollution has taken place in the present situation without this Bill, simply because of lack of finance. Much of the pollution which exists and which has given rise to the need for a Bill like this has arisen quite simply because funds have not been available to local authorities. I do not feel that local authorities are cavalier or indifferent to pollution. I believe the reason that local authorities have caused so much pollution is because they just have not got enough money to sort out the problems.
I do not know what this section has to do with local authority funding. This is about transferring additional functions to the agency if it is felt desirable, subject to the approval of the Oireachtas and so on, and allowing for the agency to be the body that would implement environmental protection requirements necessitated by our membership of the Community.
This year the local authorities will spend £1.2 billion. There are 30,000 employees. There are substantial resources and a substantial number of personnel. Perhaps it is the system that needs changing. That is why the Government have their Local Government Bill before the other House. I have no doubt that when it comes here it will be widely supported. A great concern about local authorities is giving them more functions. Of course, local authorities are free to impose service charges if they so wish. Some do and many do not.
That is because the Government have been so generous with Dublin.
Dublin do not, but they are free to do so if they wish. The members in Dublin have chosen not to impose them, so there are substantial powers there. There is no big kitty in the Department of Finance or anywhere else. Foreign bankers were tired giving us money. We have to find the money from central taxation otherwise, users have to pay for services. There is no other way around it, no matter what Senators say. Everybody knows that. In the run up to the 27 June we would not want to get too carried away about what is or is not available.
Local authorities, for as long as I can remember, have always had complaints about funding and have always felt that they should get sufficient funds, regardless of who was in power. That is why the Government are now giving them more automony under the new legislation. It will mean that they are not as restricted if they wish to raise funds in their own particular ways.
As I said, this section is about the transfer of functions. As Senator Conroy said, in the future it may well be necessary to transfer additional functions to the agency. This requires the Minister, in consultation with other Ministers, to make regulations for the assignment of the additional functions to the agency. It also allows for regulations to be made to assign functions necessitated by various European requirements. The section is necessary and important in order not to be too inflexible in the manner in which the agency is being established.
Having listened to the Minister's reply, I am far from convinced that the Minister has grasped the fears of many Senators who, while they see this as excellent legislation, realise that if we do not have the funding to eliminate the sources of pollution which exist at present it will not be satisfactory. That is what is in the back of the minds of every Member. I do not want to repeat what I said earlier. It would be a great pity if this Bill were to fail because of insufficient funding from the Department of the Environment to the local authorities. That is what we are talking about here. Again, of course, that raises another question. Could we arrive at a situation where, for example, the agency would identify a source of pollution for which a local authority would be responsible and demand that immediate action be taken to eliminate it but where the local authority would be in a position of not having the funding to do so? That is another side of the coin.
That is ordered in subsequent sections.
I have gone through the sections, Minister, and I am not quite satisfied. This is the situation as I see it. It would be a great pity if this legislation failed because of lack of adequate funding.
Question put and agreed to.
Section 53 agreed to.
NEW SECTIONS.
I move amendment No. 175:
In page 37, before section 54, to insert the following new section:
"54.—It shall be a function of the Agency to study and report to both Houses of the Oireachtas on methods of protecting the environment by industrial grants and taxation policy.".
Amendment, by leave, withdrawn.
Amendments Nos. 176 to 179, inclusive, not moved.
I move amendment No. 180:
In page 37, before section 54, to insert the following new section:
"54.—(1) Any person who causes environmental pollution shall be guilty of a civil offence, actionable at the suit of the Agency.
(2) The Agency may recover damages for the civil offence created under this section, measured with regard to the cost of remedying the damage done to the environment by the offence, by action in the High Court.".
Amendment No. 180 arises from the fact that, as the law stands, the agency cannot prosecute a criminal offence for which the fine is more than £1,000. The purpose of this amendment is to create a civil offence, or a tort, of pollution to get around this rule. If we create this civil offence or this tort, then the agency can have access to unlimited damages. It is really an amendment to meet what is an obstacle in the agency's competence to recover unlimited damages.
I indicated when we discussed amendments Nos. 48 and 49, that I would have a look at this matter and come back on Report Stage. I will give that undertaking to the Senator.
Amendment, by leave, withdrawn.
SECTION 54.
Amendments Nos. 181 to 183, inclusive, not moved.
I move amendment No. 184:
In page 37, subsection (1), line 18, to delete "Minister of the Government" and substitute "Public Authority".
Amendment, by leave, withdrawn.
I move amendment No. 185:
In page 37, subsection (1), line 18, after "Government" to insert "or Local Authority".
This amendment seeks to extend the remit of the agency in so far as that section 54 (1) reads "The Agency may, on its own volition, and shall when requested by a Minister of the Government...". I want to include there "or local authority" after the word "Government". It is important that local authorities, should they need the advice, or assistance of the agency on any project that they should be in a position to be able to go to the agency on the matter, whether it is the siting of a dump, or a decision relating to planning for an industrial estate without having to go through the Department of the Environment. If we are serious about extending the powers of local authorities we should include this amendment in section 54 (1) and I would ask the Minister to accept it.
We pay lip service to extending the powers of local authorities. Here is one way we can recognise the presence of local authorities. They should have the right to go to the agency and to get the best possible advice on a project, whether it is a site for a dump, an industrial estate, or a source of water for a major group scheme. They might get advice on the likelihood and dangers of pollution to that particular source. Very often we see where group schemes which have been set up and within three years, having had taxpayers' money pumped into them and local contributions as well, we find that their source is polluted. If proper research had been done on it in the first place, probably that would not have happened. We all know that if people in rural Ireland need sources of water the amount of research often done into the source is not what one would like it to be. I would recommend this amendment to the Minister.
I do not disagree with anything Senator Naughten has said. All these matters are covered under the next few sections. It is because of the importance of having the agency in a position to assist local authorities that we will be in the front line in enforcing the law as far as environmental protection is concerned. We have a specific section dealing with that matter. Section 56 goes on to deal with assistance from local authorities. Section 57 deals with drinking water; section 58 with sewage and effluent. Section 59 deals with sites for waste disposal. The next number of sections deal with precisely the kind of points made by Senator Naughten in his contribution. They have been adequately catered for. Section 54 is specific to Government Ministers. Subsection (2) deals with advice to Ministers about legislative changes. It would not really be relevant to local authorities. It is better to keep the advice to local authorities separate in the next number of sections. I do not think there is any need to press this amendment because we are going to deal with it in the subsequent section which we will be discussing later on this afternoon.
Amendment, by leave, withdrawn.
Amendments Nos. 186 and 187 not moved. Question proposed: "That section 54 stand part of the Bill."
There is one question I want to ask on section 54 which I wanted to ask for a while about a variety of sections. What precisely does "have regard to" mean? I am not trying to be difficult. It is a phrase that is used deliberately all through this legislation. Does it mean that they actually have to follow the advice because in some cases it is used about standards that people must have regard to and the standards are specified? Does it mean everywhere that they must do what they are advised to do? I know it means they cannot ignore it but what exactly does it mean?
I presume here you are talking about "the Minister shall have regard to".
It means the Minister would have to have very good reasons if he was going to ignore the advice of the agency. It is a much stronger concept than "take account of", which is a very mild concept. Obviously, in relation to policy matters that might be infringed upon the Minister and the Government must be free to make policy which is not a matter for an authority of this kind. The words "have regard to" would mean that the Minister would have to take very seriously any of the recommendations and would have to have very good reason not to follow them.
May I put my scepticism on the record? I do not think any of us knows what the words "have regard to" mean, but we are hoping it will work out all right in the end.
Question put and agreed to.
Sitting suspended at 1 p.m. and resumed at 2 p.m.
SECTION 55.
Question proposed: "That section 55 stand part of the Bill."
Would the advice the agency would give to a local authority generally in relation to the performance of their functions, and leaving out the phrase "they shall have regard", be public? How would the public know to what extent the local authority are or are not having regard to the advice that they get from the agency?
Obviously there will be circumstances in which the agency may be advising the local authority in relation to the taking of a prosecution and in those circumstances it would not be desirable that one would make the advice public. Generally I would envisage that advice would be made public.
We can envisage a lot but could we possibly talk about some way of making sure that it is made public? I am sure the Minister can see my point. If we have all these magic circles of advice which you have to have regard to, it becomes private advice. We have this ludicrous situation in Cork where a technical study of a dump is open to the public but the public cannot have a copy of it, so people have to read it with two or three officials looking over their shoulders. Perhaps the agency would be able to classify some of its advice to local authorities as being confidential under the meaning of section 38, but it should have to classify it as confidential if it wants it, to be so. It is the same principle that I know the Minister agrees with, that everything that can be published should be made public. This is a huge area in which a tremendous number of problems have arisen in regard to local authorities and many of them are problems of perception. If the perceptions are to be dealt with then the information should be made public.
I take the point being made by the Senator. Obviously, as I said in the case where a prosecution was likely to be taken, it would be advisable if it was not made public. There would also be a reluctance on the part of local authorities if they felt everything was to be made public to seek advice. I accept the point made by the Senator. When we are dealing with regulations under section 107 and defining the classes of information that can be kept confidential, we will bear that in mind. It would be in the interests of the agency, of course, to make the advice public as much as possible because if a local authority were not honouring the advice and were not having regard to it, the agency, as the overall supervisory body, would not wish to take the rap for it. The agency would be very keen that a lot of that would be made public, so I do not envisage there being difficulties. I certainly think that a local authority having difficulties in regard to the agency's advice would find that the agency would be very keen to make that advice known publicly in their annual report or through the dissemination of information generally. However, I will bear in mind, in relation to the regulations under section 107, the points made by the Senator.
I would like advice from the Minister about how this section will interrelate with the Maritime Institute Bill. I am thinking particularly of section 55(2)(d) which reads: "the management for coastal areas for the purposes of environmental protection." Does that include estuarine waters or where does the remit of one agency begin and the next one end and why have we no reference to the Maritime Institute as one of the bodies to which this Bill applies right through but specifically at this point?
It is envisaged that it would have the widest possible interpretation. This is an advisory function being given to the agency in relation to local authorities generally and I would envisage that whatever information or advice may be requested by local authorities if the agency were in a position to give it, they would. We provide throughout the Bill and it will be done by way of regulations where necessary to formalise it and to have on a more formal basis that the agency will have to have a formalised role with both the Maritime Institute and the Radiological Institute, and so on. Throughout the Bill there were provisions whereby this agency can liaise and consult with other bodies.
Is there any reason why, for example, under Acts referred to at the start of this Bill with a particular relationship to this section and others, the Maritime Institute is not specifically named? I am unclear in relation to the role of the Maritime Institute below and above the high water mark and the role of the Environmental Protection Agency in this area as well. If we do not clarify and put on the record the relevant areas of responsibility we are going to add to the rather muddled view already existing.
It is not the intention that this agency will be taking over the responsibilities that are currently assigned to other bodies whether it is the Radiological Protection Institute — the Bill passed all Stages in this House last week — or the Maritime Institute or whatever. All of these institutes, the Office of Public Works, the wildlife service and so on have separate functions that impinge on the environment. The agency has been given a particular role under this section to give advice to local authorities and if they are in a position to give advice even where responsibility may rest with another body, in relation to policing or licensing functions and so on, obviously they will give advice. They will be the body to which local authorities will look readily for advice in relation to the environment and if there is a query in relation to some problem and if there is a dispute between the Maritime Institute and whether it has responsibility, I would envisage the local authority would consult with the agency. The agency would consult with and have a formalised working relationship with the Maritime Institute and other bodies of that kind. This section is purely an advisory one to give advice and we do not wish to place restrictions on the nature of the advice. If the agency is in a position to give environmental advice in relation to a whole host of matters to a local authority then it should be as flexible and free as possible and not too confined or restricted in the giving of that advice.
May I ask the Minister if the remit of the agency extends below the high water mark and if she is satisfied that the terms of reference of the Maritime Institute and of local authorities in relation to what we are talking about are quite clear and that there will be no confusion in this area. I would like to put on the record of the House that there is alarm and concern about this area in relation to the environment — estuarine waters, high water mark, low water mark, the local authority's area of responsibility versus the Maritime Institute's area of responsibility. If I understand the Minister correctly, what she is saying is that the Environmental Protection Agency will be a watchdog in relation to the Maritime Institute's activity in estuarine waters and in relation to the local authority's role. Where does the local authority's role end and the Maritime Institute's begin here?
The agency's role in relation to this section is purely an advisory one. The agency has been given the function of giving advice to local authorities and if a local authority seeks advice, whether it is below or above the high water mark, if the agency is in a position to give that advice it should give it. It will also be in a position of giving advice to the Maritime Institute. The agency has not been given any direct responsibility to do anything except give advice. We are not placing any restrictions on the advice or the nature of the advice or where the line stops or where it starts.
Could the Minister inform the House where it does stop and start, either now or later in the Bill?
The distinctions that exist at the moment between the responsibilities of the Maritime Institute and the local authorities has not changed as a result of this Bill.
I thank the Minister. I accept the point she makes in relation to the Environmental Protection Agency being purely in a position to give advice. What happens if the local authority does not take the Environmental Protection Agency's advice or if the Maritime Institute does not heed the Environmental Protection Agency's advice? Ultimately which of the three authorities has the final say?
We had this debate before lunch in relation to advice and the phrase used in the Bill is that the body being advised, whether it is the Minister or the local authorities, shall have regard to such advice or information given. We were trying to define what "shall have regard to" meant. Basically, what it means is that there has to be a very good reason if you do not take the advice as to why you did not and one would expect that that has been made clear. Advice is exactly what is says. If somebody advises somebody else all they are doing is giving advice. They are not imposing their will. They are simply giving information, advice and assistance and that is exactly what the provisions of this section make way for, the giving of advice. There is no compulsion to accept the advice.
On a slightly related issue by way of a general complaint — I am not trying to pin the Minister down — in section 55 "local authority" has the meaning assigned to it by the Local Government Act, 1941. In section 3 "local authority" has another meaning given to it and later on in section 3 it states that a public authority includes among the list a local authority as defined in section 55. Can we not yet work out a definition of "local authority" that is universally applicable? Why do we have to have different definitions for it?
A more relevant question is that I do not see any reference to an advisory role for the Environmental Protection Agency with respect to public authorities as distinct from local authorities. What is the position vis-á-vis the long list of public authorities defined in section 3? The Minister and the Government are covered by section 54, local authorities are covered by section 55 but a host of other public authorities do not seem to have any specific obligation or relationship with the Environmental Protection Agency which they should have, the health boards, for instance.
In relation to the different definitions in relation to advice, we were keen to ensure that the advice the agency could give would be to the widest possible number of authorities which would include all local authorities. It is only the main local authorities such as the county boroughs and the county councils that have environmental protection responsibilities and that is why there is a need to have a distinction. In relation to public authorities, they are not specifically named in the Bill and that is correct in relation to the advice the agency may give.
I am keen that when the agency is established it does not get snowed under in having to take over everybody's responsibilities. There may be a tendency where other public authorities have environmental aspects to their activities to pass everything over to the agency and it might make it very difficult for agency to become operational. However, it does not mean that we cannot in time give the agency the power to give advice to other public authorities. In the short term I wanted to confine that to Government Ministers, Government Departments and local authorities.
Would the agency have the power to advise and to pursue difficulties with, for example, the ESB? If there were difficulties with Moneypoint, what category would that come under? Can they advise and insist that retrofitting or corrective action of some kind be taken in semi-State and public authorities?
There is a general provision given to the agency to investigate any matter that is causing pollution and to make a report and so on and that is something that applies not just to public bodies but to private bodies as well where the agency feels it is necessary to have an inquiry and to make a report and so on. The agency can also give advice to any Minister of the Government and since the ESB comes under the auspices of the Minister for Energy I would envisage that the advice would be given under section 54(2)(a)(iii). Under the advice to Ministers it certainly would be free since all public bodies come under the auspices of a particular Government Minister. If there was a problem that the agency felt was not being appropriately dealt with, it could give advice and make a report if necessary. It has a wide ranging set of powers in this regard.
I accept that. May I ask the Minister whether the ESB and other commercial semi-State bodies could be advised and directed either through their Minister or otherwise by the Environmental Protection Agency, given the financial implications of direction or advice? Is there not a legal position involved here that when you direct a commercial body in such a way that you reduce the profitability and put at risk the whole commercial operation, you then incur liability for such losses? That is the normal procedure with commercial semi-State bodies so what would the position of the agency be if that were to occur?
No, the agency would not have any power to give directions.
Question put and agreed to.
Sections 56 and 57 agreed to.
SECTION 58.
I move amendment No. 188:
In page 39, subsection (1) (a), line 26, to delete "may" and substitute "shall".
The problem is that the Water Pollution Act, 1977 and the more recent one contained powers to prescribe standards particularly for sewage discharge and my distinct recollection is that no such standards, for sewage discharge in particular, have ever been prescribed. I believe we are getting to the stage where Ministers should be prescribing standards for local authority effluent, particularly local authority sewage discharge. Even if the standards are low and have to recognise the realities of the costs involved, there should at this stage be minimum acceptable standards below which local authorities cannot go in the discharge of sewage. It is time the Minister took such action. It is like the water quality management plans that were envisaged in the 1977 Act and 14 years on we still have not got them all, and in many cases we have not got them at all.
On the issue of standards for effluents discharged from plants or drainage pipes vested in the local authority or plant, sewers or drainage pipes vested in or controlled or used by a sanitary authority for the treatment and disposal of sewage, in those two cases it is time the Minister had an obligation to set standards. If somebody does not start to set standards we will have a perpetual problem with discharge of sewage.
I accept the point made by the Senator but I think because of the problem and difficulties he mentioned in relation to sewage it is not possible at the moment to set standards. There are many places where we do not have basic sewerage treatment facilities. If you set standards obviously you have to abide by those standards even where they are very low and there is a minimum level of standards that would have to be applied, say, in relation to sewage. As you know, the Government's action plan commits us to spending about £630 million in sewerage treatment facilities between now and the end of the decade. I think when those facilities are in place it would be desirable and would be possible to set standards.
If the Minister has to set standards obviously, the rest of the section cannot come into force until those standards are set and given the enormous difficulties in regions with funding and so on to provide sewerage treatment facilities and the fact that it is going to take until the end of the decade to provide the basic sewerage treatment facilities throughout the country, it is not going to be possible until then to set basic minimum standards for such treatment.
I would like to support the points made by Senator Ryan and reiterate basically what he said. The debate on this hinges on whether section 60 (3) (c) stands; in other words, if local authorities are generally going to be allowed to slither out from under the direction of the Environmental Protection Agency the rest of an argument falls flat too. Bearing in mind that we are coming up to that, I support what Senator Ryan said. Where "may" is, I would rather see "shall". I accept that if the Minister prescribed standards for effluents discharged to waters generally there would be problems immediately around the country in areas where treatment plants have not yet been put in.
As I said before, and it needs to be said again, this is a vexed question and I have heard far too often parliamentarians who should know better standing up and making a platform out of bashing local authorities. The local authorities have been providing a service for all of us in disposing of waste of one kind or another over the years and they are only as good as the Government of the day and the capital moneys that were provided over the years to put in the different types of treatment. Successive Governments have not lived up to what they should have done and because there did not appear to be many votes in sewerage treatment works, it was lost on the public at large; so long as they could literally flush the handle of their toilet that was the end of it as far as they were concerned. They were not interested in where the money came from to put in primary, secondary and tertiary treatment plants of one kind or another. I think it is time we stopped the general bashing of local authorities that pervades even this House and the Lower House. People must realise the local authorities are as good as the Government of the day and previous Governments. Many of them have failed the local authorities in terms of funding them properly.
In relation to this section I would not like to see the Minister not obliged to prescribe standards. There is a difficulty as to whether they could be imposed in the morning, and they could not all around the country, but with the type of amendment we will be discussing for section 60 (3) (c) I think we could allow the local authorities a derogation perhaps for up to two years or however long might be considered reasonable to comply with those standards by putting in whatever capital works are necessary to comply with the standards in terms of the discharged waters. I would not like to see the standards not set and I would not like to see the obligation not there in relation to what local authorities must do. I would hate to take the Environmental Protection Agency away as the watchdog of the local authorities but all of it will not be fixed in the morning given the neglect over the decades. I think we can allow a derogation when it goes back to the Minister.
The blame will not stop with the local authority but it must stop with the Minister of the day. He or she can be allowed a reasonable length of time to put right the wrong, up to two years, but I think there is a philosophy here and there is a concept of an independent environmental watchdog that must not be watered down or diluted. We are in danger of doing it if we let the local authority out in this section and indeed in several sections to come.
When the legislation was being drafted, consideration was given to the matters referred to by Senator Doyle. It would be desirable if we could set mandatory standards if we were in a position to do so but, as she so rightly said, it is a question of resources and they are not available today or tomorrow. Even with resources available, it is going to take some time before they can all be implemented and made operational. Therefore, it is going to take perhaps until the end of the decade or maybe even somewhat longer. If we were to put in a mandatory requirement to set standards it would mean effectively that the rest of that section could not come into operation until all of the mandatory standards were established. That would obviously be undesirable.
Under section 58 (4) the agency may and shall, as directed by the Minister, set down procedures and publish them in relation to the operation and maintenance of a sewerage treatment plant and be able to comment on whether there is spare capacity or if it is over-supplied or whatever. I think that is giving the agency a general power. On the question of setting of standards, obviously some of the groups I consulted with felt the agency should be the standard setting body. I gave some consideration to that but I think at the end of the day policy is set by Governments and I do not think it would be appropriate to make a State body, an independent agency of this kind, the body that sets the standards particularly since it is not going to be the body that will have to find the money to meet them. In all the circumstances it is preferable to leave the discretion there until such time as we are in a position to make mandatory standards nationally particularly for sewerage treatment plants.
Is the amendment being pressed?
I have not decided yet whether I will press it or not. I am less than happy with the response. The Minister, of course, has a point and Senator Doyle is quite right when she says people, including myself, blame local authorities. I do not blame them for sewage discharge. I blame local authorities for their unwillingness to be upfront with people in local communities in areas where they currently have organisational responsibilities and where they will not disclose information or do so selectively or slowly or are unhelpful. That has nothing to do with resources at their disposal but with the outlook of local authorities and their management.
On reflection, I will not push the amendment to a vote because we could not make its provisions mandatory immediately. Between now and Report Stage I will give some thought to taking the Government at their word about the programme for the end of the decade. Perhaps I will stick in "shall by ten years time" establish the standards, taking the Minister at her word that they intend to deal with the problem within ten years.
I do not think I will be here in ten years time.
The legislation will survive us all. Even a ten year deadline would be fine. I accept there is a problem but it cannot go on. The power to establish standards in this area was contained in the 1977 Water Pollution Act 14 years ago. It may not have been declared in this form but a similar power was there. The last time I checked with the Minister's Department, regulations with regard to cadmium hexachloro cyclohexane and mercury discharges are the only regulations made under that section of the 1977 Act. I can wait another ten years but 24 years is long enough.
The Minister gave a reasonable reponse and I understand the background to what she is saying. She may have argued along the same line when this legislation was being drawn up initially. "Big Brother" in the Department probably said "No, you do not touch my local authorities. They will do what they like and no one will get their hands on them", because that is what happens. Are we missing an opportunity of setting standards to be aimed at in relation to environmental protection, particularly of our coastal and inland waters? Are we losing an opportunity to do something that those concerned with the environment would like us to achieve with this Bill? I would love to set the goals.
I accept it will be ten years or more before we can achieve the standards we lay down. I would even allow a derogation by the Minister in terms of what is required from certain local authorities until the Government of the day provides the money. Surely the goals should be inserted in the Bill in order to achieve these standards of environmental protection? Are we losing an opportunity because we are crying money and I understand the reason? It will not be achieved tomorrow but we could marry what the Minister wants and what Senator Ryan and I are requesting.
I would hate to see the Environmental Protection Agency Bill come out of this House and the Lower House anything less than perfect because so much is going to be expected of it. We should not water down its functions and make excuses that because we have not provided money for the past 50 years it will take another ten years and we will not do it now. The Bill will not come back to either of the Houses within the next couple of years. The Minister knows and we know that it is hard to get a Bill back into the House for amending. Let us not lose an opportunity. We should set the goals and standards we demand of public and private bodies in the treatment of our environment. I am nervous we are letting it go this time round.
I share Senator Doyle's concern. I do not think the concern will be getting the Bill back to the House; my concern at the moment is getting out of the House. We might still be here at the end of the decade the way we are going although we are making good progress today for which I thank everybody. What Senator Doyle refers to is in section 72 dealing with the setting of environmental quality objectives. I agree that that is important but let us discuss that when we come to it. I share the Senator's view that we should know where we are going and have objectives and aims.
Amendment, by leave, withdrawn.
Government amendment No. 189:
In page 39, subsection (1) (b), line 36, to delete "drawn up" and substitute "specified".
This drafting amendment is proposed to ensure consistency with the terminology used in subsection (4). Under subsection (4), the agency is empowered to specify and publish criteria and procedures in respect of the operation of sanitary authority facilities from which effluents are discharged. While the process of specifying criteria and proceedings would involve "drawn up", no specific mention of the phrase is made elsewhere in the section.
Amendment agreed to.
Question proposed: "That section 58, as amended, stand part of the Bill."
I would like the Minister to explain how the agency can operate under subsection (4) if no standards exist. I accept what she said when talking about my amendment but if there are no standards for sewage or other effluents which is what section 58 refers to, we are talking in a vacuum. The local authority is to be told how to manage, maintain, supervise, operate or use any plant, sewer or drainage pipe vested in its control. The agency can do that but if there are no standards what can it say? It may say it must be kept well polished but it cannot say what must come through the pipe if there are no standards. I do not understand how subsection (4) can operate without standards being specified. I accept that the Minister is the person to make the standards; it is a matter of policy.
You do not have to have standards to set down procedures and criteria. If you read subsection (5) it specifies what would be involved there — the agency can advise and set criteria and procedures in relation to site selection, the location of effluent discharges and so on. There is a long list there. Sometimes problems can arise even where appropriate treatment is in place because of the capacity of receiving waters or because treatment facilities are not properly maintained or operated. The agency is being given wide scope to advise and set criteria and procedures for local authorities in relation to sanitary treatment facilities. One does not require standards in order for them to do that.
I am not going to disagree with the section but I do not think there is any real logic in what the Minister says. The location of an effluent discharge is going to be related to the quality of the effluent. If you are discharging clear water from a proper tertiary treatment plant then you can talk about where it can be discharged in a different way from the discharge of raw sewage. The question then is the quality of the effluent. The agency will be unable to give the sort of advice the Minister wants.
The solution is to specify standards, if they are only aspirational. To a considerable extent that magnificent "out" phrase at the bottom of section 60 for the local authorities says that everything about local authorities is only aspirational anyway and one more aspiration one way or the other will not do us much harm. The Minister knows that this issue has caused considerable bad feeling in sections of industry. The devil and all have been specified for the private sector while there is a huge aspiration for the public sector with a lovely retreat at the end of it. We will come to that later.
I do not accept that a body in the business of technological advice on a technical question can give advice about treating something if they do not know what is in it. Without standards they do not know what they are talking about. I cannot see how they could. I could not tell somebody how to locate any sort of an effluent treatment plant leaving out sewage completely if I did not know what the discharge from that treatment plant was supposed to be. The technology itself will depend on the quality of the effluent and the location will depend on all of those things. The Environmental Protection Agency will be used to give a gloss of respectability to the discharge of unacceptable sewage in unsuitable locations because it would be done on the advice of the Environmental Protection Agency. Without standards the section becomes confusing and maybe even meaningless.
I do not agree with Senator Ryan. Even where a local authority provide a tertiary treatment plant, the location of that plant is of fundamental importance for the receiving waters, whether tidal or in an estuary. The outfall position is also important and if a tertiary treatment facility is not properly operated or maintained it is not going to perform to the high standard one would expect.
There are problems at the moment in some regions not for lack of a sewage treatment facility but because of the manner in which the facility is maintained or operated or its positioning or the positioning of the outfall pipe or whatever. This provision gives the agency the power to set down criteria and procedures. It would mean that in advance of a local authority erecting a sewage treatment facility they would consult with the agency and follow any procedures or advice or criteria laid down by the agency who will be the expert body.
Given that so much public money will be spent over the next decade on sewage treatment facilities, it is important that the agency would be the body to specify criteria and procedures and ensure that that money is spent wisely to get the maximum amount of environmental protection. It is not always a question of "Get £100 million, put up a plant anywhere, put the pipe anywhere and that is it." Standards on what is accepted and expected change all the time. It is only in recent years that we have come to the conclusion that the sea is not a suitable place to dispose of our raw sewage. For years we felt that we were providing adequate treatment if we got a long pipe and passed all the sewage through it out to sea.
The agency is the appropriate body to be consulted about the various matters listed under subsection (5). They are important and not merely aspirational. I wish we could set very strict mandatory national standards. Unfortunately until such time as we provide the moneys to impose those standards they will not be more than aspirational and such aspirations should not be written into legislation. It would be a foolish way to proceed and would take from other legislation if we were to include aspirational sections in this Bill. We spend too much time in Ireland on aspirations and too little on achieving particular objectives.
This section is important and will be of invaluable help to local authorities and ensure that the £1 billion of public money to be spent over the decade on water and sewage treatment will be spent effectively and efficiently. The provisions of the section will ensure that an appropriate expert body will be consulted about all facilities and the manner in which they should be operated and maintained.
Question put and agreed to.
SECTION 59.
Acting Chairman
Amendments Nos. 190, 233, 240 and 241 may be discussed together.
I move amendment No. 190:
In page 41, subsection (1), line 14, to delete "may" and substitute "shall".
We are back to "may" and "shall". In this case it is inexplicable that it should be an enabling provision. The section allows the agency to publish criteria and procedure for the selection, management, operation and termination of used by local authorities of landfill sites for the disposal of domestic and other waste, without prejudice to the generality of all the usual criteria and so on.
I cannot understand why it is not an obligation on the Environmental Protection Agency to do this. Why should it be a discretionary power? Why should we not say the agency "shall" publish these criteria? It is an extremely important issue and I defer here to local authority members in this House because I know that one of the most difficult environmental issues local authorities have to deal with is the question of landfill sites. In my city the local authority are dealing with landfill sites in an extraordinary way. Landfill sites are a clear and obvious function of the Environmental Protection Agency. In the part of the country where I go on holidays somebody has decided that the best place to locate a dump is on the main tourist route.
If one leaves Tralee for the Dingle peninsula the last thing one sees on the way out is a dump and if one leaves Dingle to tour west of Dingle the first thing one sees on the way out is yet another dump. They seem to be strategically located to create the maximum offensive visual and smell impact on visitors. The specification of standards and criteria for landfill sites should be an obligation and a duty and not a discretionary function of the agency which is what my amendment is about.
I support this amendment. We accepted, with great reluctance, the Minister's argument on section 58 and elsewhere as to why "may" could not become "shall" when it related to the local authorities because of financial implications. Local authorities would perhaps welcome direction from the agency in relation to landfill sites for waste disposal generally.
It is, as Senator Ryan has said, a most difficult issue to resolve locally. We cannot please everybody no matter where we locate landfill sites. There will be complaints and objections and it is virtually impossible now for local authorities who have not already acquired and established sufficient landfill sites for the next decade to do so. Local authorities would welcome direction from the Minister or the Environmental Protection Agency specifying and publishing criteria and procedures for the selection, management, operation and termination of the use of landfill sites by local authorities generally. We would also see a greater standardisation in relation to the management and operation of landfill sites throughout our country. I hope we will not see local authorities purchasing future landfill sites where they cause maximum damage to the visual impact of the area, as Senator Ryan pointed out.
Yes. I would like to say to the Minister that changing "may" to "shall" does not have the same financial implications as, for example, necessitating primary, secondary or tertiary treatment of sewage effluent in any way. This is a simpler matter, expensive on a current basis because sites require daily filling in with clay and tiphead management purchases will only be made where necessary. The management of the sites is an ongoing current charge on the local authorities. I do not see "may" changed to "shall" as our amendment suggests, causing major financial implications for the Minister or the local authority. Changes will be made only as the necessity for extra dumping space becomes evident.
I urge the Minister, for the sake of the local authorities and, indeed, for the sake of the credibility of the Environmental Protection Agency, to change "may" to "shall" so that the agency will direct, specify and publish the criteria in relation to management operation and the termination of use by local authorities. The landscaping of landfill sites that are being filled up is a very important issue. Some local authorities look after them while others leave them in an appalling condition. I would like to see a more definite verb used in the section.
I do not disagree that the agency should do this and that is the intention. We have a legal difficulty about when exactly they should do it from a practical point of view following their establishment and that is why "may" was put in and not "shall" because "shall" is an obligation from day one and that would cause difficulties. I support what is being said and the purpose of the section is that the agency eventually performs these functions. There will, however, be difficulties and local authorities will need help in this area so we will have a look at this on Report Stage.
Amendment, by leave, withdrawn.
Acting Chairman
Amendments Nos. 191, 192, 193 and 194 are related and may be discussed together.
I move amendment No. 191:
In page 41, between lines 17 and 18, to insert the following new subsection:
"(2) In carrying out the function specified in subsection (1), the Agency shall have regard to the need to reduce the amount of solid wastes for which landfill sites are required, and shall encourage waste reduction at source, re-use of materials and re-cycling where possible.".
Amendments Nos. 191 and 192 are identical. I urge the Minister to look favourably on this amendment which would insist that the agency have regard to the need to reduce the amount of solid waste for which landfill sites are required. It will ease the difficulty of providing extra landfill sites if we are economical in the use of existing sites. I also suggest that the agency encourage waste reduction at source and the re-use and recycling of materials where possible. Everyone is in favour of everything suggested here but given the present philosophy in this area it needs to be stated particularly in section 59 dealing with landfill sites for waste disposal generally.
Amendment No. 194 would follow the acceptance of amendments Nos. 191 and 192. Having enunciated the general philosophy in relation to waste reduction at source and the re-use of materials and recycling in subsection (2), we are including in what would now be subsection (3) paragraph (1) dealing with recycling of waste materials; and (m) dealing with reduction of waste at source. Given the acceptable list of specified criteria and procedures which will relate to the following under subsection (2) as it now stands, the addition of recycling of waste materials and the reduction of waste at source would be consistent particularly if the Minister accepts amendments Nos. 191 and 192.
Amendment No. 193 which is in my name suggests that under section 59 (2) (e) as it is now in the Bill we introduce the words "and recovery" so that it would read "the control and recovery of landfill gas." It should be an objective and an aspiration and clarify where we would like it to go. It tightens up what is probably in the Minister's mind anyway.
I am happy to accept Senator Doyle's amendment No. 193 which adds in the words "and recovery" because it is appropriate. The other amendments deal with waste, recycling, re-use and waste minimisation and I agree with the sentiments expressed. Unfortunately this is not the appropriate section for the question of waste disposal since it deals with the operation of landfill sites. In the new waste Bill being drafted at the moment all the points made are being carefully considered and will be included. Perhaps in a later section it would be more appropriate to talk about the matters referred to. Section 59 now reads, "(e) control and recovery of landfill gas."
I thank the Minister for accepting amendment No. 193. I am unclear in relation to her comments on amendments Nos. 191 and 192. The Minister says that further down we come to a more appropriate section. Could she be specific as to what section we could introduce the philosophy enunciated in these amendments?
Section 68 deals with environmental audits. Section 71 deals with codes of practice and section 73 deals with the labelling of products and services.
Section 71 deals with environmental audits.
The research programme in section 68, environment audit is section 71, codes of practice is section 73 and labelling of products is section 75.
Which of those four sections would be most in order for discussing the principle of what we are trying to achieve?
Perhaps under section 71 on environmental audits or section 73 on codes of practice. I am advised that any of the sections mentioned are relevant.
Does the Minister accept the sentiments of amendments Nos. 191 and 192 and what they are trying to achieve? I stand corrected on the choice of section.
There are major gaps in our present waste legislation and we hope to publish new legislation by the end of the year not only in relation to the matters discussed by the Senator but to a host of other areas where the law has to be updated. It is more appropriate that these vast areas should be dealt with in separate legislation rather than through this Bill but I fully subscribe to the concept discussed.
Is the Minister saying that there is no mechanism in the Environmental Protection Agency Bill to mention the encouragement of waste reduction at source, the re-use of materials and recycling where possible? I am confused. Later sections of this Bill and the waste Bill have been mentioned and I am not sure what we are talking about. I would like to see this aspiration in regard to the philosophy in environmental control included in this Bill.
I would prefer to come back to the Senator on that rather than speak off the top of my head. The issue of waste is enormous and unsatisfactory because the legislation dates back to the last century. Other than six or seven sets of directives we do not have appropriate legislation so framework legislation is required. I note the concept the Senator has introduced here and I could advise her later on where it might be appropriate.
I am wary. I accept we are going to have a comprehensive Bill on waste but the fundamental bedrock of present-day thinking on environmental protection is waste minimisation and we are all aware of that. To move that philosophical point out of environmental legislation into waste management or waste treatment legislation is off-beam. The amendments to the American Environmental Protection Agency legislation which were introduced in recent years specifically incorporate into the brief of the United States Environmental Protection Agency the objective of waste minimisation. If that is the case, without arguing about the details of these three amendments it seems to me that we ought to have the same philosophical objective put before us. None of us is into the business of end of pipe solutions. The solution to environmental problems is not at the end of the pipe but at the beginning of the process. The best place to solve a problem is before it actually happens. It is better, technologically easier and usually a lot cheaper. I am not happy that the whole area of waste minimisation would be pushed off into other legislation.
Although it is intended to deal with it by way of separate legislation, obviously in that waste Bill the Environmental Protection Agency will be given enormous responsibility in relation to waste matters and functions will be assigned to the Environmental Protection Agency through that legislation when we get it together. It is not a question of having the two totally separate. The Environmental Protection Agency will have functions in relation to waste legislation which will be assigned to it in that Bill.
Acting Chairman
Is amendment No. 191 being pressed?
On the understanding that the Minister will come back on Report Stage and that we will have further discussion as to the suitability of the location and on the philosophy included in those amendments, I am withdrawing it. I will await the Minister's guidance on it.
Amendment, by leave, withdrawn.
I move amendment No. 192:
In page 41, between lines 17 and 18, to insert the following new subsection:
"(2) In carrying out the function specified in subsection (1) above the Agency shall have regard to the need to reduce the amount of solid wastes for which landfill sites are required, and shall encourage waste reduction at source, the re-use of materials and recycling where possible."
Amendment, by leave, withdrawn.
I move amendment No. 193:
In page 41, subsection (2) (e), line 24, after "control" to insert "and recovery".
Amendment agreed to.
I move amendment No. 194:
In page 41, subsection (2), between lines 32 and 33, to insert the following new paragraphs:
"(1) recycling of waste materials,
(m) reduction of waste at source,".
Consequently on the Minister's views on amendments Nos. 191 and 192, I am withdrawing this amendment.
Amendment, by leave, withdrawn.
Amendments Nos. 195, 196 and 198 are related and may be discussed together.
I move amendment No. 195:
In page 41, subsection (3) (a), line 33, to delete "local" and substitute "public".
The objective of these amendments is to extend the area where the agency may deal with bodies which are managing landfill sites by using the broader term of "public authority", as defined under section 3 of the Bill, rather than "local authority". It would say that a public authority which manages or operates a landfill site to which the criteria apply would be under the direction and would have to respond in the manner specified to the agency. The other amendments which Senator O'Toole put down are related to this one in terms of extending the scope of those bodies. It seems perfectly reasonable that anybody who is running a landfill site ought to be expected to meet and operate under the criteria set by the Environmental Protection Agency unless we are making it perfectly clear that only local authorities will be allowed to operate landfill sites. If we are not saying that, then all bodies which operate landfill sites should be covered by the requirements to operate to the standards specified here, and not just the local authorities.
Amendment No. 198 is simply a consequence of moving from local authorities to public authorities. The final subsection is no longer necessary if the section applies to public authorities and not just to local authorities.
The effect of these amendments would be to require a public authority or company that manages or operates a local authority landfill site to carry out such monitoring as the agency requires. I do not know if this is the intention. If the intention behind this group of amendments is to transfer responsibility for the supervision of all landfill sites from local authorities to the agency, this is a different matter. Under the European Community (Waste) Regulations, 1977, the 33 major local authorities have this function at present through the operation of a permit system to any person, including a public authority or a company, who treats, tips or stores waste on behalf of another person. Persons disposing of waste themselves must do so in a manner which would not endanger human health or harm the environment. The disposal of toxic and hazardous waste is subject to control by local authorities under the European Community (Toxic and Dangerous Waste) Regulations, 1982, and the European Community (Trans-Frontier Shipment of Hazardous Waste) Regulations, 1988. But there is provision for the transfer to the agency of these functions under section 53 and the Second Schedule to the Bill.
The operations of non-local authority landfill sites for non-toxic waste is appropriate for local level control by local authorities because of the number of such sites, their locations and the nature of the non-toxic waste involved. In addition, the agency has a general supervisory role under section 60 of the Bill in relation to the performance by local authorities of their statutory functions generally. This includes control of and disposal of waste. This, I believe, is the most effective way of achieving the Senator's objectives. In addition, I would expect local authorities to apply the criteria, procedures or monitoring requirements specified by the agency under section 59 for those private and other landfill operations controlled by them.
Is that a "yes" or a "no"?
I think that because of the permit system the private sites to which the Senator referred are covered. But in regard to whether the authorities follow the directions or advice in relation to their statutory functions, I think that is dealt with. No doubt we will have a good debate on that on section 60.
I much prefer the Minister's own replies. I find them far easier to follow, even though that was a technical response which was probably needed for the record. I would like if the Minister could explain in a straightforward way whether the controls envisaged on landfill sites or the advice, etc. given by the Environmental Protection Agency will apply to private landfill sites as well, and exactly what the relationship of the Environmental Protection Agency and the private landfill sites is — there are quite a few around the country. Now that garbage collection charges have been introduced in many local authorities, certain areas that are not covered by the local authorities are now covered by private operators, some of whom operate their own local landfill sites and others dump at the local authority tiphead. I would like to know whether the restrictions, the advice standards etc., that the Environmental Protection Agency will be considering, will apply to all private, semi-private or public authority landfill sites, apart from local authorities.
Yes, the intention is that they would. Under section 59 the agency will be able to publish criteria, procedures and so on for local authority landfill sites. The agency will not have any direct contact with those who are operating private sites because the agency does not have any role to give advice to private bodies, private companies and so on. In its advisory capacity it will be advising local authorities, Government Departments and so on. It is not envisaged that it will advise those operating private landfill sites. However, through the local authority, who will be in a position to impose these conditions and criteria, and through section 60 it will be able to give directions to the local authority who are responsible for controlling, operating and supervising private sites. The answer is not directly, but indirectly through the local authorities, yes.
I will withdraw the amendments because the Minister identified an inconsistency in them. The amendments would substitute "public authority" for "local authority" in subsection (3) (a) but would leave the local authority referred to in subsection (4). It would seem to me that my distinguished colleagues made a small mistake there and I think the best thing to do is to withdraw the amendments.
Amendment, by leave, withdrawn.
Amendment No. 196 not moved.
I move amendment No. 197:
In page 42, between lines 5 and 6, to insert the following new subsection:
"(5) This section shall not apply to any function which a local authority is unable to carry out, in the opinion of the High Court, by reason of insufficient funding or resources.".
This amendment goes back to the question of money and the capacity of the local authorities to fulfil the requirements that the agency might place upon them. What this amendment simply seeks to do is to provide a way out for local authorities who have not been given an adequate amount of money to carry out the functions which are specified in this section. We are suggesting that the High Court would determine whether or not the local authority had the capacity to implement the various regulations and standards which will be laid down under the provisions of this section.
Without money, this Bill will simply be a list of aspirations. Local authorities have been major causes of pollution and that has arisen quite simply because they have not had the money. This amendment proposes a means whereby they may shift the burden of responsibility from themselves and place it elsewhere because they have not the money. It will also enable local authorities to confront the agency and the Government with the realities of their capacity or lack of ability to achieve the specifications which are laid down in this section and which, in my view, could be highly unreasonable requests on a local authority if they have not been provided with the money to carry out the work.
I find myself disagreeing vehemently with the mover of this amendment. I even find the words in subsection (5) "as soon as is practicable" more than generous in terms of letting the local authorities off the hook in complying with anything the agency may require of them. I will have more to say in relation to this on section 60. I am very unhappy about section 60, subsection (3) (c)——
Acting Chairman
The Senator should confine herself to section 59 until we finish it.
I think we are having quite a reasonable debate. We have referred to other sections and so has the Minister. It is exactly the same principle. If you want an argument, I will give you an argument, with respect.
Acting Chairman
Thank you for the courtesy of saying "with respect."
The words "as soon as is practicable" are quite a sufficient let-out for the local authorities on this, and I do not think we need to nail it into the legislation that the local authorities will get off the hook just because of finances not being available to them. I am saying that as someone who defends the reasonable stance of local authorities. I put it on the record today and previously that local authority bashing for the sake of it I just do not wear, because it really has been Governments that have been negligent over the years rather than local authorities.
In section 60 the same principle and philosophy come up for discussion. I am delighted that in section 59 the Minister uses the words "the authority shall"— where the Agency deems it necessary —"take steps as soon as is practicable," which I would understand to mean: as soon as the Government finance them or they are in a position to raise the finance locally, depending on what the issue is. The local authorities are far too leniently treated in the next section, which is all part of the principle of what we are talking about now.
For the agency to work, it must be independent, it must have public credibility, and it must have integrity, above all else. If everyone is allowed slip out under "may" and "could" or "perhaps" or "as soon as is practicable" or "when the money is provided" or any other such phrase, we will have a eunuch of an agency at the end of the day that will do nothing. All sorts of nice cliches and aspirations will be heaped on it here in this House and in the Dáil when it gets there, but when it comes to the practice and the up-and-running end of the Agency it will effectively be able to do nothing. It will not be able to stand, it will not be able to be independent and it will not be able to direct and say "Environmentally, those standards are unacceptable."
I know local authorities cannot provide the money in the morning and I would be all for allowing them a derogation from complying with the requirements of the agency in the diffrent areas in this subsection and in the next section. But I do not think that the agency can start off with one hand tied behind its back which is what this amendment, with respect to the mover, would do, and what section 60 (3) (c) does as well. I feel very strongly about this because I want this agency to work. I want it to be the success the Minister says it will be and I think all of us want it to be the success that the Minister has outlined. After all, it only applies to the local authorities and to Ministers and their various Departments. If effectively you take the local authorities out of it you are saying it is there to direct Ministers in terms of what might come within their ambit. With respect to the mover, I cannot support his amendment.
I am somewhat bewildered at the attitude of Senator Doyle. This resolution seeks to give the local authority an escape from their obligation if they have insufficient funding or resources. I would like to hear how Senator Doyle would propose that a local authority which in the opinion of the High Court had not sufficient funding or resources to carry out the specifications in section 59 would do it. Perhaps we have not got yet to the new developments in the Fine Gael monetary policy which will explain and enable such things to happen. It will enable organisations such as local authorities to carry out requirements which will be placed on them without having sufficient resource. I am beginning to wonder will we be photocopying the £5 notes.
I am not sure if that warrants a reply, but for the completeness of the record I had better. I find quite generous the words "as soon as is practicable," which releases any local authority that has not the money from immediately complying with the requirements of the agency in this area. In fact, I would like to have the onus on the local authority to present to the Minister the advice and the requirements of the agency. The Minister might allow a derogation, as we will be suggesting in the next section, but ultimately the buck must stop with the Minister for the Environment of the day if the local authority cannot fund certain works that the agency require of it. But in regard to allowing local authorities off the hook willy nilly because they cry "no money", the words "as soon as is practicable" are already in this section which effectively allow a reasonable approach and a certain phasing in, a certain timescale and a certain funding programme for whatever the agency requires. I find the section generous enough in its treatment of local authorities. I do not expect local authorities to have to provide tomorrow money they do not have to comply with the agency. Ultimately, if there is a major problem, I feel the buck should stop with the Minister who, if it is serious enough, must fund the local authority in the particular case.
I think the inclusion of the words "as soon as is practicable" obviously implies that the funds are there. We have to be realistic about this. No work can be done for nothing. The intention is that the works would be carried out when finance is available. It may be finance that they would raise themselves, or finance that would come from central Government, but for works to be carried out contractors have to be paid.
The arguments have been made so well for me I do not feel the necessity to make them myself. I just could not accept this amendment. It would not be at all satisfactory to allow the local authority to refer to the High Court for adjudication matters of funding every time they felt they had not got the resources to do a particular job.
As Senator Doyle and Senator Finneran said, the phrase "take steps as soon as is practicable to ensure that the management or operation of such landfill site complies with the specified criteria and procedures" is very reasonable. We are talking here about the major local authorities, the 33 large authorities who have responsibility for landfill sites. It is extremely important that those sites are operated to the highest possible standards so that they are not a source of pollution to the environment.
To include the provision that Senator Upton suggests by way of his amendment would effectively mean that a local authority would argue perhaps, if they did not want to comply with the criteria or procedures laid down by the agency in relation to a landfill site, that they were going to take a case to the High Court to prove that they had not got the funds. The taking of the case in itself would take up a substantial amount of funds. I do not think it is the way to resolve the difficulties. I know the point the Senator is trying to make and we could probably have a more useful debate about that on section 60. I understand from what Senator Doyle and others have said that we will have a good debate on that. I think that is a more appropriate place to deal with the question of funding and directions to the authority rather than writing it in specifically here.
I find the whole attitude difficult to understand. On the one hand we have had great aspirations. The Minister mentions the "highest possible standards" and, at the same time, those highest possible standards will be "as soon as practicable." What type of standards are we going to have before the moment of being practicable occurs? When exactly will that happen? I am beginning to wonder if most of this is just a load of aspirations which pretty well everybody can go along with, but when you get down to brass tacks it is where the money is. I say that in the context of this morning's debate when Senator Naughten spoke about widespread pollution in County Roscommon quite simply because of the reality that——
I am speaking of history. I know he is a man with a great sense of history, an understanding of it and a good capacity to abstract appropriate pieces of history. But the reality was that the money simply was not available and that is why it happened. I am bothered about what "practicable" means and I am bothered as well that "practicable" is intermingled with the "highest possible standards." What is practicable and of the highest possible standards is grossly inconsistent; they cannot be reconciled and I wish this Bill would indicate which one we are going to have.
Amendment, by leave, withdrawn.
Amendment No. 198 not moved.
Question proposed: "That section 59, as amended, stand part of the Bill."
In relation to section 59 (3) (a), which states: "A local authority which manages or operates a landfill site to which specified criteria and procedures apply...". I am not entirely clear about which landfill sites, if any, these specified criteria will apply to? Will it be to new ones or to those existing ones that the Agency identifies?
It could be all of them or it could be particular types. It is not confined to new ones, existing ones are included also.
How do they get in? Will the agency identify them, will the local authority identify them or will the Minister specify them? I could not identify a procedure by which the sites to which the criteria will apply would be worked out.
The agency is given the power to specify criteria, procedures and so on. It could be for new ones, existing ones, ones in particular locations and so on. The total freedom rests with the agency. It is not a matter for the local authorities or for the Minister.
I am sorry for being tedious, but I am still not clear. Does that mean that the Environmental Protection Agency will actually have to find which sites it is going to apply these criteria to, or will a local authority have the freedom to not ask them to give information? The Environmental Protection Agency will be based in one place. It will have regional units, but essentially most of its personnel will be located in one place. How will it identify to which landfill sites the criteria apply since it does not apparently apply to all of them?
It may apply to all of them. I envisage the agency will lay down and publish criteria, specifications and so on for landfill sites and they will apply generally but the agency may have particular criteria it wants to specify for particular landfill sites. The matter would be totally for the agency. If a landfill site was the cause of many complaints or if because of its location or the way it was being operated it caused a particular problem, the agency may decide to have a special set of criteria or specifications. In general, they will apply to them all, but if the agency so wishes it could single out some particular landfill sites, select them or whatever.
Question put and agreed to.
SECTION 60.
I move amendment No. 199:
In page 42, subsection (1), line 21, to delete "may" and substitute "shall".
I do not think it is necessary to put in a mandatory requirement that they have to have a report. It may not be necessary for the agency to require a report. To have a mandatory report in relation to every single matter is totally unnecessary and is not desirable.
Amendment, by leave, withdrawn.
Amendments Nos. 200 to 205, inclusive, not moved.
Question proposed: "That section 60 stand part of the Bill."
I greatly regret that those amendments were ruled out of order on the basis that they may impose a charge. The sentiments included in them must be patently obvious to the Minister.
There is no way I could agree to this section. If the Minister is not in a position today to indicate that she will reconsider section 60 (2) (c), that the agency shall not give a direction under paragraph (a) unless the local authority has the necessary funds to comply with the direction or those funds can reasonably be made available by it, I belive that paragraph weakens the independence and the credibility of the agency as far as the public are concerned.
Much the same argument I used about Senator Upton's amendment on section 59 applies here. I know that local authorities cannot in the morning correct all the wrongs and make up for the neglect of successive Governments in terms of putting in proper treatment plants etc. and in complying with standards we now would like them all to comply with. It will take a number of years for the Government and successive governments to provide the moneys necessary.
What the wording of my amendment No. 203 purported to do was to insist that the local authorities came under the direction of the Environmental Protection Agency, but that ultimately the local authority concerned could look to the Minister for the Environment for a derogation and the buck would then stop with the Minister. In other words, the Environmental Protection Agency would only be able to pursue it as far as the Minister's desk through the local authority that was giving environmental offence one way or another. The integrity of the agency would not be compromised then in any way; it would be treating the local authority as all other authorities within its ambit. There would be no exceptions made and no special pleading that "we cannot do it because we have no money."
I do not know a local authority that has money and that could comply with any extra requirements that may be put on it tomorrow by an Environmental Protection Agency that was in existence. The local authorities are very badly off and very shook, financially. We all know the history of that. They are not financially autonomous bodies. They are dependent on the Minister, on block grants and on service charges, which do not raise a lot of money. I would not allow the principle of the local authorities being let off the hook to be enshrined in the Bill, but I would allow a derogation to be given by the Minister to a local authority in terms of their compliance with the direction of the agency.
I implore the Minister to accept the philosiphy of the amendments and to insist that we do not let the local authorities off the hook. The perception of the public will be that the local authorities do not come under the ambit of the Environmental Protection Agency. That is the wrong message to come from the Bill itself. I would like the local authorities to be treated as all the other bodies mentioned, but allow them to go to the Minister for the Environment of the day for a derogation to ensure that they are bringing to the political powers-that-be the problems that exist on the ground. The local authority, the county manager, the county engineer could say: "we are under pressure from the Environmental Protection Agency and we must have a treatment plant. It is scheduled for four or five years, we must bring it up within the next two years," or whatever. Let the debate then be between the technical people at local authority level and the Department of the Environment to try to schedule the necessary compliance with the Environmental Protection Agency's wishes. That is the only way this agency will be independent, it will have credibility and its integrity as an environmental watchdog will be intact. I implore the Minister to incorporate the philosophy of the amendments. It is very important and essential for the success of the Environmental Protection Agency.
When I read through this Bill and went down through it, section by section, dealing with the obligations, rights and powers of the agency, I kept thinking that this cannot be real because it will require local authorities to do a lot of things that are going to cost a lot. When I got to section 50 (3) (c) the smile came on my face, because I realised it was not real, that there was an escape clause. Senator Doyle is right. There is a derogation, or a temporary postponement, use any phrase you like, but why stick in at the end of a number of very noble sentiments that the agency shall not give a directive under paragraph (a) "unless the local authority, with due regard to its statutory functions has the necessary funds to comply with the direction or these funds can reasonably be made available to it."
All industry would stand up and cheer this legislation, if that little phrase was put in. If we had everything else that was in this Bill and a phrase saying "The Agency shall not give a directive (to any operator or any of the activities or the processes listed in the First Schedule) unless the local authority, with due regard to its other statutory function, has the necessary funds..." to do what the agency says it has to do, it would be magnificent. Everybody would think it was great legislation because nobody would be forced to do anything serious about it. That sort of a phrase might have some meaning if it had a time limit on it. The Minister said there is a ten year programme to deal with local authority sewage discharge.
Are we actually going to end up in this quite ridiculous position where, quite rightly, we will have the most stringently, environmentally regulated industry in Western Europe and local authorities apparently will be required by government to operate in a way which is a direct contradiction of not only the letter but the spirit of this legislation? That is what that phrase means at the bottom of section 60. I have heard industrialists say this. They feel aggrieved that, on the one hand, they are going to have to meet standards that will cost money and, on the other hand, local authorities only have aspirations. They may well meet them in certain areas but the fundamental point is that when the bottom line is reached the private sector, industry and all other areas will have to cough up the cash but local authorities will not be able to be directed to do something if the cash is not available to them. Even on purely political grounds, a more carefully chosen set of words could have been inserted which was not a blatant escape hole for government. This is an escape route for government. If local authorities had to do all these things governments would either have to cough up extra money or tell them to abandon other programmes to which funds were currently being allocated. That clause has nothing to do with local authorities; it has to do with governments and the under-funding of environmental protection by local authorities.
The impression might be given that our local authorities were mass polluters. Of course, that would be a long way from the truth. The reality is that in most cases where it was proved that local authorities were contributors to pollution it was as a result of a malfunction or the non-function of a sewerage treatment works. Everybody in the local authority system knows that even small water sewerage schemes are the result of departmental decisions since the funds are a hand-down from the Department to the local authority. The Government have a very comprehensive ten year programme to deal with treatment works throughout the country and a list of areas to be dealt with is set out in that programme. No other solution is possible. As far as I can see, the agency cannot pick on Longford or Roscommon County Council and tell them to spend £1 million. That would not be practical; it would not work. Even for a scheme one-tenth of that size, direct application would have to be made to the Department of the Environment. It is not feasible to instruct a local authority to do it but what is feasible is that the Government of the day are setting about a situation where local authorities will not be involved.
From what I have noticed, read and heard over the last number of years there were fish kills and rivers were polluted. I disagree with what Senator Naughten said earlier. He might have been attempting to give the facts regarding the pollution of two rivers from treatment works in County Roscommon but he failed to inform the House that the report that he read here today issued in 1986 and does not represent the situation in 1990-91. It is an ongoing situation. Some local authority treatment works have been giving trouble over the last number of years, but they are being taken on one by one by the Department of the Environment and are being funded. There is a programme for the next ten years. To instruct local authorities to move straight away and get something done, knowing full well that it would not be possible for them to do it out of their own resources unless it was very small repair, would be unfair.
I should like to draw the Minister's attention to the wording in section 59 (5) which was the subject of Senator Upton's amendment. The wording, "the authority shall, where necessary, take steps as soon as is practicable" is quite generous. If, in fact, that concept was incorporated here it might achieve not as specifically as I would like, but generally what I would like. In other words, the local authorities would be subject to the full direction of the Environmental Protection Agency but would only carry out whatever was required of them as soon as it was practicable, in other words, as soon as it had the money available. The Minister allowed that concept in the previous section in relation to landfill sites. Why can we not follow through? This is so important for the integrity and credibility of the agency.
We had a similar discussion before lunch. There is an assumption that if the local authority cannot do something, or if there is pollution being caused or a statutory function is not being complied with, it is all a question of money and resources. Quite honestly, I am getting a bit tired hearing the same old thing up and down the country all the time: "we have no money; we have no resources". As I said earlier, this year local authorities will spend £1.2 billion. They have 30,000 people employed. It is a substantial amount of money and resources for a very small country like ours. What is wrong is the system. That is why the Government are seeking to reform it, to streamline it, make it more relevant and to give more autonomy to local authorities.
The purpose of subsection (3) (c) is not to give local authorities a way out every time a direction is given to them. On the contrary, these precise directions are being given, and section 60 is included in this Bill, so that the agency will have a supervisory role over the performance by local authorities of their statutory functions. That supervisory role will include, obviously, giving advice, help, assistance and consultation, which will be of enormous help.
I know local authorities at the moment find it difficult in the ever changing world we live in, where environmental laws are changing very rapidly and where environmental controls, standards and processes are all changing very rapidly. It is difficult for local authorities, particularly the smaller ones, to keep apace of the changes and to have the kind of professional expertise that is required to meet their needs. This agency is going to be of invaluable use to them in that regard, in particular.
Where a local authority do not fulfil, or fulfil to the satisfaction of the agency, their statutory functions the following applies: the agency may request a report from the local authority and will consider whatever the local authority has to say. If the agency is not satisfied it can direct the local authority to do something. If the direction is not honoured the agency can go in and do the work to make sure it is done. The important thing is to make sure the particular task is carried out. Before the agency will go in — it may go in anyway and take a chance that the resources are there to cover it — it will probably satisfy itself that there are resources. The agency would not be, and should not be, in a position to say to a local authority, because the agency wants to keep its reputation high and it might be getting complaints in a particular region because there may not be an appropriate sewage treatment facility and, therefore, the public complains to the agency, that it must do certain work. It would be unreasonable to expect that that agency, in order to wash its hands of what might be happening would simply say: "we direct local authority X to put in a sewage treatment plant", which could cost up to £50 million. This is precisely to avoid that kind of heavy capital expenditure being imposed on a local authority. I met many local authorities, their members and representative bodies and they made this point to me. One of the worries that they had was that literally the correction of every single thing that was wrong would be forced upon them, and that they would be forced to do things when they did not have the resources. They instanced, time and again, water and sewage treatment facilities, which are extremely expensive.
I do not think it would be reasonable that an agency could give a direction where the resources are not available. I accept that the resources are a matter for Government and for the Minister of the day. I fully accept that point in relation to that kind of capital expenditure. The agency is free to communicate with the Minister or the Government in relation to a problem and to say: "there is a particular problem in area X and a sewage treatment facility is required and we believe that that is imperative." They are free to do that. Senator Doyle referred to the need to make that possible. They are free to do that and I am sure they will.
In relation to the normal, everyday responsibilities of local authorities it is a question for them of making sure that environmental protection becomes top of their list of priorities. Traditionally, local authorities here were involved very much in the provision of housing, basic water, sanitary facilities, roads and matters of that kind. It is only in recent years, in the last decade in particular, that they have had huge responsibilities imposed upon them in relation to environmental protection. We are a country that did not require a huge plethora of environmental protection laws because of our relatively clean and unspoiled environment. It is only in recent years that further impositions have been made on local authorities.
The vast majority of them can be met out of the ordinary day to day funding of local authorities. It is a question of them having their priorities right and of ensuring that environmental protection is top of that priority list. They will have to satisfy the agency that they genuinely do not have the resources. It will not be a question of being able to say everytime they get a direction that they do not have the money. It will not be a question of that. It may well be a question, sometimes, of reallocating staff or of maintaining something like a treatment plant. Simple things like that may not require any additional resources, but rather redeployment of resources within the local authority.
I envisage that section 60 (3) (c) will only apply to those activities that would require the imposition or expenditure of huge capital sums. In those circumstances, it would not be reasonable for this agency to be able to give a direction simply, as it were, to wash its hands of the problem and lay it at the door of a local authority. That would be most unreasonable. At the end of the day if an agency goes in to a job it will obviously believe that it is a serious matter for it to do so. It will obviously mean that it will have to go to the courts to establish its right to get paid the sum of money involved for carrying out that work. I believe this section will ensure that local authorities give greater weight and priority to environmental protection. That will be the effect of this section. No local authority will want a direction to be given to them by this agency. Since section 60 (3) (c) will only be used in extraordinary circumstances where the funds are such that the work is beyond the capacity of a local authority, that section cannot be used to defend everything. I do not accept that that is possible.
In relation to Senator Doyle's suggestion about the phrase "as soon as is practicable", effectively they are more or less the same thing. This provision was written in because there was such concern among local authority members, in particular the General Council of County Councils and the other association, that the new agency was going to give them all kinds of orders and they might not have the funding to carry them out. That would put the local authority in a very bad light and give them a bad name. They would be blamed for many things that do not fairly belong to them. Reference was made earlier that local authorities get blamed for the deeds of others. There are many examples of where it is a question of simply reorganisation or redeployment within the local authority. This section will have the effect of ensuring that environmental protection laws in so far as they remain the responsibility of the local authorities will be rigorously enforced.
I cannot accept, with the best will in the world, the overall point the Minister made. There is an inconsistency in the way the previous section treated local authorities in that under it they "shall take steps as soon as practicable when directed by the agency". I would like the same philosophy, at the very least, incorporated in this section. With respect the Minister is being far too generous in relation to the treatment of directions to the local authorities. I do not expect any authority to find money in the morning. They could not find £50 million to comply with the directive of the agency if they had to put in secondary and tertiary treatment plants. They should be allowed a derogation from a direction which should be mandatory. The Minister for the Environment then, over a matter of years should schedule the work concerned.
I would prefer that, but I would be happy to accept a clause such as "as soon as is practicable" in terms of anything the local authorities would have to do under direction of the agency. Quite frankly and bluntly, the Minister is castrating the agency and emasculating it. It will be the laughing stock of environmentalists generally. The Minister is being totally different in terms of her treatment of the private industrial sector relative to the local authorities in this. I request the Minister to be consistent in her treatment.
We should look at the record of local authorities at this stage. In any matter that comes in front of them, they always take fire brigade action. It does not matter whether it is flooding or a storm. If one looks at the record of local authorities in regard to fish kills and so on one will see they moved in very fast and dealt with them. They have not waited for clearance from the Minister for Finance and, in most cases, the Minister has come back and made an allocation. Local authorities have been extremely responsible over the years. They took on work on their own initiative. County councils, with their executives moved extremely fast. We have an excellent record of that in recent times where there were spills on road or into rivers. The only area where there seems to have been a problem was in regard to major capital sewerage works that were either malfunctioning or inefficient in some way or other and needed funding.
Surely Senator Doyle does not want local authorities to be issued with a direction in a situation like that? I cannot see that as being practicable. It would appear from what the Senator is saying that local authorities have been irresponsible. I refute that completely. As far as I am concerned, local authorities have been very responsible and have always moved extremely fast.
Approximately 20 per cent of fish kills are caused by local authorities' treatment of sewage, water and other civil works. That was the figure according to the Department of the Marine in 1988-89. That is bigger than the total identified as being caused by industry in general. The fish kills caused by local authorities are bigger in number proportionately. The numbers of fish kills attributable to local authority treatment of sewage, waste and other civil works, according to the Department of the Marine, is higher than the number attributed to all of industry, not just one particular section of the industry.
I should like to quote remarks by Niall Buckley, Director General of the Federation of the Irish Chemical Industries when speaking at a conference organised in cork on 23 January. I want to put on record one section of industry's perception of this Bill. Mr. Buckley said:
The agency's first and major role will relate to the licensing, regulation and control of those activities described in Schedule I, which includes virtually all industrial activities.
Secondly, it will act in an advisory and supportive position in relation to local authorities' and other public authorities' activities as they may affect the environment, e.g., water treatment etc. The position of the agency in relation to the functions of public authorities will be fundamentally advisory and supervisory only although in one or two places that I will come on to, there is the appearance of something more than an advisory role but when you boil it down it is advisory and supervisory.
He continued:
This legislation completely removes the public sector — the county councils in particular — from the executive jurisdiction of the Environmental Protection Agency.
He continued:
The Agency may direct local authorities to comply with monitoring requirements and force the cost on them (section 58 (2)) but it will not be able to direct a local authority to satisfactorily perform its statutory functions if it would cost too much!
This is what he emphasised. "Does this approach", he asks "suggest an evenhanded application of environmental targets across all activities impacting on the environment?"
It is not just the chemical industry that I am talking about, but they are one of the major areas of multinational involvement in our economy. The message that will go back to the multinational companies is of a country with two sets of standards, one set of standards for the private sector which are stringent, demanding and, I would believe, should be the most demanding in Europe and on the other hand, the standards for local authorities are fine in their aspirations, but not an awful lot in practice. I am struck by the difference between the carefully worded application of section 5 when talking about BATNEEC to different kinds of activities where many criteria would have to be considered. For example, the costs which would be incurred in improving or replacing facilities in relation to the economic situation of activities of the class concerned. The agency, identifying the best available technology for the private sector or for industry, has to take the costs into consideration. We had a long argument about this and we talked about it.
It is perfectly reasonable that the cost implications for a local authority of a directive from the Environmental Protection Agency should be a matter it should take into consideration, but what we actually have written in here is a blanket ban on the giving of a directive if the local authority believe they cannot afford it. It is not even if the agency is satisfied that the local authority cannot afford it; the wording is that "unless the local authority has the necessary funds". If we included there, "unless the agency is satisfied that the local authority does not have the necessary funds," I would be persuaded, because that would mean that at least the local authority had to justify themselves to somebody about the way they were using their resources. As it stands, the local authority simply have to say, "we do not have the money," and that is it. That seems to be excessively generous to them, even if we accept that obviously we do not want — and it is a reasonable fear — every local authority landed with an enormous bill tomorrow for things they have to do under their statutory functions under this section. Of course, we do not want that. The alternative to that is not the extreme opposite, it is somewhere in between, where they are put under some pressure to use the resources they have, and where they cannot draw conclusions themselves.
I wish to support Senator Doyle and Senator Ryan and to point out that yesterday Members from all sides were saying that local authorities were not responsible for any dereliction of duty because there were particular occasions when they did cause pollution of various kinds. Senator Ryan has instanced fish kills and so on through discharge of untreated sewage into waters. This is because they did not have the money and that was fairly generally stated. The excuse was regarded as valid because they did not have money. I am very interested and concerned by what Senator Finneran said about this subject. It seems to me that it is simply not acceptable that permission should be given for developments or, indeed, that councils should build housing estates themselves — which sometimes they do — knowing full well that there are not adequate sewage treatment facilities. I do not think in this day and age that there should be a legitimate excuse for councils engaging in activities that cause the kind of destruction to the environment about which we have heard.
Question put.
The Committee divided: Tá, 19; Níl, 14.
Tá
- Bennett, Olga.
- Bohan, Eddie.
- Conroy, Richard.
- Dardis, John.
- Fallon, Sean.
- Farrell, Willie.
- Finneran, Michael.
- Fitzgerald, Tom.
- Foley, Denis.
- Haughey, Seán F.
- Honan, Tras.
- Kiely, Rory.
- Lydon, Don.
- McKenna, Tony.
- O'Brien, Francis.
- Ó Cuív, Éamon.
- O'Donovan, Denis A.
- Ryan, Eoin David.
- Wright, G.V.
Níl
- Cosgrave, Liam.
- Doyle, Avril.
- Hourigan, Richard V.
- McDonald, Charlie.
- McMahon, Larry.
- Manning, Maurice.
- Murphy, John A.
- Norris, David.
- Ó Foighil, Pól.
- Raftery, Tom.
- Ross, Shane P.N.
- Ryan, Brendan.
- Ryan, John.
- Upton, Pat.
Tellers: Tá, Senators Wright and Fitzgerald; Níl, Senators Cosgrave and McDonald.
Question declared carried.
Progress reported; Committee to sit again.
