The purpose of this amendment is to ensure consistency of the terminology used in the section. "Direct" is the the term used throughout the section and elsewhere in the Bill, for example, in section 16. Subsection (4) provides for the action which the agency may take where a local authority does not respond satisfactorily to a direction. This is merely a technical amendment to keep the terminology the same.
Environmental Protection Agency Bill, 1990: Committee Stage (Resumed).
Government amendment No. 206:
In page 43, subsection (3) (a), line 20, to delete "require" and substitute "direct".
Amendment agreed to.
Section 61, as amended, agreed to.
Sections 62 and 63 agreed to.
SECTION 64.
I move amendment No. 207:
In page 45, line 22, to delete ",subject to section 38,".
This amendment places the operation of the Bill at this point subject to section 38, which governs the disclosure of confidential information. I believe, and I am supported by this in a number of groups which have lobbied me, that it is important to have the widest possible access to information. One way in which this could be met is by deleting the reference in section 64 which governs the whole thing by section 38. I will be interested to hear the Minister's response on this, bearing in mind the fact that I believe she agrees with me it is very important that the public have the widest possible access to information, particularly in the light of the fact that we do not, as yet, have a freedom of information Act which a number of other jurisdictions possess and which I think would be a very useful instrument for the citizens of this country.
While it is my intention that monitoring result would be made widely available, and that is why we have this section in the Bill, however, monitoring results can contain information about trade or commercial secrets and it is for that reason we have to make it subject to the same kind of confidentiality that applies in section 38. It would obviously be ludicrous if confidentiality applied to the release of information generally but not to releasing monitoring results generally available. In the debate on section 38 it was generally agreed that restrictions were necessary so that commercial or trade secrets about manufacturing processes and so on should be kept secret. I do not know of any jurisdiction where they are not. Therefore, it is necessary, unfortunately, despite my intention to make monitoring results generally available in the interests of the commercial secrecy of trade and other processes, to have this section subject to section 38.
As I moved an amendment to section 38, the agency cannot withhold anything that is required of them by way of the European Community Directive, in other words, they have to fully comply with the provisions of section 107 under which they implement in full the European Community Directive on access to information.
I regret that I am not in a position to accept the Senator's amendment because of the sensitivity of what could be involved. I accept it will only arise in a minority of cases but, nonetheless, we have to make provision for it. If we agree that confidentiality is necessary in certain circumstances, as I think we generally did under the discussion on section 38, then it would be ludicrous to let out trade or commercial secrets by way of monitoring results which could identify certain matters that should be kept confidential.
Is amendment No. 207 being pressed?
As the Minister said this issue was widely debated when we were discussing section 38 I believe she has gone some way towards taking on board the concerns expressed. I do not think there is any point in my being difficult. I will not press the amendment.
Amendment, by leave, withdrawn.
Section 64 agreed to.
SECTION 65.
Amendment No. 208 not moved.
Acting Chairman
Amendments Nos. 209, 210, 211, 212 and 213 are related and may be discussed together.
Government amendment No. 209:
In page 45, subsection (1), lines 26 and 27, to delete "and such other public authorities as may be prescribed" and substitute "(and such other public authorities as may be prescribed)".
The purpose of amendment No. 209 is to ensure that "as may be prescribed" refers to other public authorities only. It is the intention that the agency should, without the need for any regulations, be entitled to supervise monitoring carried out by the 33 major local authorities.
Amendment agreed to.
Amendments Nos. 210 to 213, inclusive, not moved.
Section 65, as amended, agreed to.
SECTION 66.
I move amendment No. 214:
In page 46, subsection (2), between lines 39 and 40, to insert the following new paragraph:
"(f) data on the toxicity and flammability of all emissions listed in paragraph (e).".
I am interested in the Minister's reponse to this amendment. I do not think it should be too contentious an issue. It simply adds to subsection (2) the following new paragraph: "data on the toxicity and flammability of all emissions listed in paragraph (e)". This seems to be precisely the kind of specific information that would be required for the agency to operate efficiently. I do not imagine there can be any principled objection to it and I would be interested to hear what the Minister has to say.
I appreciate the Senator's interest in ensuring that maximum information is available to the public about toxicity and flammability of emissions to the environment. The introduction of the concept into this section is not the most appropriate for all sets of practical reasons. For example, as regards the more wide ranging emissions of substances, such as sulphur dioxide, nitric oxide and volatile organic compounds, there is standard and well documented information on flammability and toxicity and anyone who has an understanding of the implications would have no difficulty in finding this information.
In relation to emissions from licensed activities, these will be dealt with in the context of applications for licences and the information obtained as regards such emissions, including, if appropriate, their toxicity and flammability, would form part of the information held on the licensed register to which public access has been provided for under section 86. The agency will have power under section 84 (2) (d) to seek information which could include toxicity and flammability data from applicants. In addition, I consider that something on the lines of the US toxic release inventory would be a better option, be more meaningful and helpful to the public and probably result in reductions of emissions if the American experience is repeated.
I am investigating the possibility of providing for such an inventory in the new waste legislation. I do not believe we should include a similar provision in two separate pieces of legislation. I have been advised by my technical advisers within the Department that this provision would not be a practical proposition as toxicity and flammability are only meaningful when used in relation to a specific medium, life form or location.
I will not press the amendment. I was very glad to hear that the Minister is considering the possibility of a toxic release inventory. This would be a very good thing. Apparently it will be in some other legislation and I presume that is a fairly solid assurance that the Minister is actively considering this. One reason I am happy to support Senator Ryan's amendment at this point is because the educational impact of the agency is quite important and maintaining this kind of data and making it available to the public is an important part of that educational process. I will not be pressing the amendment.
Amendment, by leave, withdrawn.
I move amendment No. 215:
In page 46, subsection (3), line 45, to delete "unreasonably".
Section 66 (3) requires a local authority to provide information to the agency. It goes on to say that the authority shall not unreasonably withhold such information. I find it difficult to understand why the word "unreasonably" is used. A local authority could, for some reason, use that section to prevent information going forward to the agency. I do not know why "unreasonably" should not be deleted and I ask the Minister to examine this possibility. The section would be strengthened if the word "unreasonably" was removed.
I support Senator Naughten. Having the word "unreasonably" included will mean that a whole range of discussions will have to take place between local authorities and the agency to decide whether it is reasonable or unreasonable to withhold certain information. There could be a myriad of cases where information the agency should receive from local authorities would, in fact, be denied it on that basis.
Section 66 (3) empowers the agency to require any public authority to make available to it any information related to environmental quality in their control or possession. To make this power a blanket one, covering all information and all circumstances would be clearly unacceptable. For instance, should the agency be entitled to require the making available of confidential information recorded confidentially under section 107 for inclusion in the data base? Should it have the power to require the making available of large quantities of information at reasonably short notice? The word "unreasonably" in this section is included as a guiding principle both for the agency and the public authorities. The power is to be exercised by the agency with due regard to the practicalities of any request and the sensitivity of any information. The public authorities are to co-operate with the agency in a reasonable manner. The adoption of the Senator's amendment would lead to this requirement for reasonableness on both sides being omitted from the provision. If one accepts that there could be some information in some format at some time that might be requested by the agency and that the public authority might find it unreasonable to comply with the particular request, then the wording must remain. I can see no reason for removing this worthwhile requirement.
It is a relatively minor point, but public authorities, including local authorities, should have the right to refuse something for reasons relating to a prosecution, monitoring results or whatever. This applies both to the time given to supply the information and to the information and this is information for the purposes of producing data bases and so on. Obviously, if a local authority or public authority were to be unreasonable it would be a matter for the agency to have the courts adjudicate. It cannot simply be used as an excuse not to give information. Without it, it could lead to difficulties and, on balance, it is better to leave the word in, if that is in order with the Senators.
I accept the Minister's explanation and it seems reasonable that the word should be retained.
Amendment, by leave, withdrawn.
Section 66 agreed to.
SECTION 67.
I move amendment No. 216:
In page 47, line 19, to delete "environment in" and substitute "atmosphere, land, soil, waters and noise levels within the jurisdiction of".
Senator O'Toole has indicated he would be grateful if I moved his amendment. I will not spend a great deal of time on it. It is simply a definition and we are back to the area we opened at the beginning of the debate. The amendment seeks, in page 47, line 19, to delete "environment in" and substitute "atmosphere, land, soil, waters and noise levels within the jurisdiction of". In other words it is being more specific. It is giving what Senator O'Toole certainly feels would be a much clearer definition of the scope of this section.
I appreciate the Senator's concern that the state of the environment reports should be comprehensive and wide ranging. However, acceptance of this amendment would result in the opposite to the intention of the Senator. It would, in fact, narrow the scope of the agency's report. For example, flora and fauna are not included in this definition. The state of the environment report published by An Foras Forbartha in 1985 reported on such matters as urbanisation, transport, townscape, forestry and pesticides. The wording as drafted in the Bill provides the agency with sufficient scope to report on those issue which may be of particular concern at some given time rather than being tied to a rigid set of media. It is important to give the agency the widest possible level of flexibility. The An Foras Forbartha report dealt with flora and fauna, transport, townscape, forestry, and pesticides and so on. If you start specifying, as the Senator's amendment seeks to do, we will immediately limit the report to those matters specified in the Bill and that would be undesirable.
I said earlier I would come back in relation to definitions and so on and it is probably more appropriate at this level. The wording in the Bill gives the maximum scope to the agency and it is preferable than to limit it or to apply it to particular media.
I agree with the Minister on this because environment is a word that has expanded in its meaning over the past ten years and is continuing to expand. Some years ago the Department of Local Government covered the environment. I agree with the Minister, it is an expanding area and we should not limit the scope of the Bill for the future.
The Minister has made the case reasonably and we are back to a situation that we teased out at an earlier stage so I will not press the amendment.
Amendment, by leave, withdrawn.
Section 67 agreed to.
SECTION 68.
Government amendment No. 217:
In page 47, subsection (2) (a), line 24, after "specify," to insert the following "(or, where for the time being no intervals are specified by the Minister, at such intervals as it thinks fit)".
This is a drafting amendment to make it quite clear that in the absence of any interval, specified by the Minister, the agency will have the power to prepare programmes on environmental research at such intervals as the agency thinks fit. The Minister may wish to specify an interval for many reasons including co-ordination with the preparation of research programmes at European Community level or national programmes, for example, environment action plans, and so on. It was not intended that the non-exercise by the Minister of this power would prevent the preparation of monitoring programmes by the agency.
Amendment agreed to.
Section 68, as amended, agreed to.
SECTION 69.
Acting Chairman
Amendments Nos. 218, 219, 220, 221, 222, 223, 224 and 225 are related and may all be discussed together. Amendment No. 218 is in the name of Senator Ross.
Amendment No. 218 not moved.
I move amendment No. 219:
In page 48, subsection (1), between lines 24 and 25, to insert the following new paragraph:
"(c) (i) Every environmental impact statement shall include all information set out in Annex III of the 1985 Directive, except where the Agency considers that the information is not necessary for the reasons specified in Article 5 (1) of the 1985 Directive.
(ii) In this paragraph `1985 Directive' means Council Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment.".
This amendment seeks to ensure that all environmental impact statements will include all information required by EC law. As I understand it, the current Irish regulations do not comply with EC law in this respect and the provisions of the Bill give the Minister flexibility for making recommendations, suggestions and guidelines on the information contained in environmental impact statements. All the information contained in environmental impact statements should be that which is set out in the guidelines in the European regulations rather than according to guidelines of our own which will inevitably turn out to be of a lower standard than European ones. That has been the tendency in the past.
I support Senator Upton. Where we are moving towards greater harmonisation of European law this is a very sensible move. I support the Labour Party's amendment and await the Minister's reply with interest. Amendment No. 220 in the name of Senator Ross —"The Agency may, from time to time, review the operation of the environmental impact assessment regulations and the quality and consistency of environmental impact statements produced under them"— is the kind of internal policing which could only make the system more efficient, so I am happy to support that amendment.
Amendment No. 221 requires that "All environmental impact statements shall be submitted to the agency and the agency may comment on any of them to the competent Authority". I support this sensible amendment. A series of amendments which clearly relate to each other are amendment Nos. 222, 223, 224 and 225, which seek to strengthen the operations of the Bill by removing the word "may" and replacing it with "shall". For example, on page 48, subsection (4) (a), line 36, it would read:
The Minister shall, by regulations, require a copy of an environmental impact statement prepared in respect of any development or class of development to which this section applies to be sent to the Agency by the person or body on whose behalf the environmental impact statement is prepared at such time as may be prescribed.
In other words, it would be mandatory, as it ought to be if the system is to work efficiently. It is not good enough to have a "they may" or on the other hand "they may not". No circumstances are specified or indicated as to when it would be appropriate that this should happen, so I urge that this series of amendments be taken on board and "may" be changed to "shall". There should be no difficulty about that. There is one I have difficulty with, amendment No. 224, because I am not sure, in terms of draft personship, that this amendment is required but the same principle applies, requiring something to be done rather than leaving it to the discretion of the agency. This is a significant but small amendment with which I hope the Minister will find herself in agreement.
All of these amendments seek to increase the agency's functions in relation to environmental impact assessment either by assigning it new functions or altering discretionary provisions in the Bill to mandatory ones. The section as drafted gives the agency a major role in relation to environmental protection. The amendments however would either destroy the carefully constructed demarcation between the agency's role and the roles of the planning and other competent authorities, for example, by giving the agency power to determine the contents of specific environmental statements. I am looking at the wording of this section again to see if any changes are needed for clarity. Senator Upton's amendment No. 219 to subsection (1) is unacceptable. Requirements as to the contents of EISs have already been made in Irish law in accordance with the requirements of the European Community EIA Directive. A provision of the nature proposed is therefore superfluous. It would also be inappropriate in this subsection whose purpose is to enable the agency subject to the statutory requirements in that regard to prepare guidelines on the contents of EISs. It is also flawed in that it would make the agency the arbiter of the content of particular EISs. This role belongs to the competent authorities for EIA purposes. In relation to amendments Nos. 221 to 224, inclusive, I am prepared to accept the principle behind these amendments that all environmental impact statements should be submitted to the agency. A revised wording is required to fit in with the rest of the section and I will bring forward an appropriate amendment on Report Stage.
I thank the Minister for the flexible attitude she has shown towards amendment No. 221.
I welcome what the Minister has said. It would be odd if environmental impact studies were not as of course made available to the Environmental Protection Agency. There is a very clear logic to that. I was amused in an ironic fashion when the Minister mentioned other competent authorities. I think there would be a view with regard to the variability of competence in groups like An Bord Pleanála. I do not expect the Minister to be indiscreet enough to comment on that.
Amendment, by leave, withdrawn.
Amendments Nos. 220 to 225, inclusive, not moved.
Section 69 agreed to.
SECTION 70.
I move amendment No. 226:
In page 50, subsection (1), line 3, to delete "with the consent of" and substitute "in consultation with".
Under this amendment the Minister shall in consultation with the Minister for the Marine make regulations. The Minister for the Environment is passing on his function and responsibility to the Minister for the Marine in this circumstance and he should do it in consultation rather than with the consent of the Minister.
The Minister for the Marine is the responsible authority for marine-related matters and it would not be appropriate to give another Minister the power to carry out changes in his functions without his consent. These regulations are going to have a major impact on the manner in which the Minister for the Marine will issue licences and permits and as there are a number of statutes under which the Minister for the Marine may issue such licences and permits, it appears more than reasonable that his consent to the making of regulations under this section should be required. If there was a dispute between the Minister for the Environment and the Minister for the Marine, that would be a matter for Government. It would lead to an impossible relationship within a Government if one Minister could in regard to another Minister's responsibility do something without his or her consent. I think, therefore, the wording in the Bill "with the consent of" is appropriate in the circumstances when somebody else has the responsibility for a particular matter.
Amendment, by leave, withdrawn.
Acting Chairman
Amendments Nos. 227 and 228 are related Government amendments and may be discussed together.
Government amendment No. 227:
In page 50, subsection (3), line 17, to delete "prescribe" and substitute "by regulations specify".
Amendment No. 227 is a technical amendment to ensure that the Minister for the Marine has power to set out in regulations the procedures for obtaining the approval of the agency to marine authorisations. The word "prescribed" as defined under section 3 and as used in section 6 in relation to the general power to make regulations is confined to the Minister for the Environment. It is necessary therefore to give the Minister for the Marine specific powers to make regulations under this section. Amendment No. 228 is also a simple drafting amendment. It confirms as a standard practice that an order may only be amended or revoked by a further order.
Amendment agreed to.
Government amendment No. 228:
In page 50, subsection (6), line 33, after "may" to insert "by order".
Amendment agreed to.
Section 70, as amended, agreed to.
SECTION 71.
Acting Chairman
Amendments Nos. 229 to 238 inclusive are cognate and may be discussed together.
Government amendment No. 229:
In page 50, subsection (1), line 36, to delete "an activity" and substitute "any process, development or operation".
As drafted at present section 71 combines the promotion functions of the agency in relation to environmental audits to those activities which are licensible by the agency. In view of the value of environmental audits as an internal management tool for encouraging environmentally sound practices I am convinced that the agency's promotional role should be expanded to include all processes, developments or operations and not just those specified in the First Schedule to this Bill. The substitution of "process, development or operation" for "activity" wherever it appears in this section will have the effect of completely opening up the scope of this section. It may, incidentally, be necessary to revise this section further in the light of possible new European Community provisions on the question of environmental audit which is being considered at Community level at present.
That is very reasonable. I am glad the Minister is broadening the scope of the operation of the Bill and I accept it is a technical amendment. I would have thought "activity" covered everything but clearly there are reasons for replacing that with the phrase "any process, development or operation" and I am happy to accept it. I understand that amendment No. 233 is involved as well and has to be discussed at the same time. By the same argument, at the bottom of page 50 it makes certain functions mandatory. It says, as it stands, "the agency may promote the carrying out of environmental audits". From what the Minister has said, she believes this is a valuable process and perhaps to require the agency to carry out such audits would be a better thing than merely leaving it as a kind of exhortatory phrase. Senator Ryan's amendment stated that "may" shall be replaced by "shall". The point is understood by the Minister and I am not going to labour it.
Amendment agreed to.
Government amendment No. 230:
In page 50, subsection (1), line 38, to delete "activity" and substitute "process, development or operation".
Amendment agreed to.
Government amendment No. 231:
In page 50, subsection (1) (b), line 46, to delete "activity" and substitute "process, development or operation".
Amendment agreed to.
Government amendment No. 232:
In page 50, subsection (1) (c), line 47, to delete "activity" and substitute "process, development or operation".
Amendment agreed to.
I move amendment No. 233:
In page 50, subsection (2) (a) line 48, to delete "may" and substitute "shall".
To make it mandatory in all circumstances is probably not necessary; it is better to give the discretion to the agency. A mandate would involve the agency in having to do a task not always necessary. Since we are widening the scope of the audits to include not just things licensible by the agency but other activities as well, it is better to leave the discretion with those who have the competent environmental expertise. In time it may well be necessary to make them mandatory for all types of activities but at the moment it is better to leave it as it is in the bill.
In the light of the Minister's reply I will not press this amendment but there is one further down the line which I will argue more strongly. It is along the same lines.
Amendment, by leave, withdrawn.
Government amendment No. 234:
In page 51, subsection (2) (b), line 4, to delete "activities" and substitute "processes, developments or operations".
Amendment agreed to.
Government amendment No. 235:
In page 51, subsection (2) (b), line 4, to delete "activity" and substitute "process, development or operation".
Amendment agreed to.
Government amendment No. 236:
In page 51, subsection (2) (b), line 5, to delete "activities" and substitute "processes, developments or operations".
Amendment agreed to.
Government amendment No. 237:
In page 51, subsection (4), line 13, to delete "an activity" and substitute "any process, development or operation".
Amendment agreed to.
Government amendment No. 238:
In page 51, subsection (4), line 14, delete "activities" and substitute "processes, developments or operations".
Amendment agreed to.
Government amendment No. 239:
In page 51, subsection (4) (a), line 16, to delete "such organisation," and substitute "any".
This is a simple drafting point. "Organisation" is included in the phrase "person or body" and there is no need to mention it separately. The word "such" also appears to be redundant. It is merely technical and in the interest of good English.
Amendment agreed to.
Section 71, as amended, agreed to.
SECTION 72.
I move amendment No. 240:
In page 51, subsection (1), line 23, to delete "may" and substitute "shall".
Amendment, by leave, withdrawn.
Section 72 agreed to.
SECTION 73.
Amendment No. 241 not moved.
Acting Chairman
Amendments Nos. 242, 243, 244, 245, 246 and 248 are cognate and all may be discussed together.
Government amendment No. 242:
In page 52, subsection (2), line 10, to delete "issuing" and substitute "publishing".
The purpose of these drafting amendments is to ensure consistency in the terminology used throughout sections 73 and 74 and other sections of the Bill in relation to the agency's functions in respect of codes of practice as generally set out in subsection (1). Publication is a more appropriate function in the context of public awareness and implies a wider audience than that envisaged by the term "issuing" which implies there are selected persons or organisations in mind.
Amendment agreed to.
Government amendment No. 243:
In page 52, subsection (3), line 15, to delete "issues" and substitute "publishes".
Amendment agreed to.
Government amendment No. 244:
In page 52, subsection (3), line 18, to delete "issued" and substitute "published".
Amendment agreed to.
Government amendment No. 245:
In page 52, subsection (4) (a), line 24, before "revise" to insert "revoke or".
The purpose of amendments Nos. 245 and 247 is to clarify that the agency, in addition to the power to revise, will have the power to revoke the whole or part of a code of practice which it had prepared. This power is desirable in situations where a code of practice or part of a code has become outdated or is no longer relevant or has been substituted by a revised code or part of a code. The power to revoke is in keeping with the power to withdraw its approval to a code of practice in subsection (4) (b).
Amendment agreed to.
Government amendment No. 246:
In page 52, subsection (4) (a), line 25, to delete "issued" and substitute "published".
Amendment agreed to.
Government amendment No. 247:
In page 52, subsection (5), line 28, to delete "revises or withdraws its approval of" and substitute the following "revokes or revises, or withdraws its approval of,".
Amendment agreed to.
Section 73, as amended, agreed to.
SECTION 74.
Government amendment No. 248:
In page 52, line 32, to delete "issued" and substitute "published".
Amendment agreed to.
Section 74, as amended, agreed to.
SECTION 75.
Government amendment No. 249:
In page 53, subsection (2) (c), line 4, to delete "applications" and substitute "an application or an appeal against a refusal".
As drafted it is not clear that subsection 2 (c) allows the introduction of a review or appeals procedure where the application for the use of a symbol is refused. It was the intention that such a procedure be provided for. Such appeals procedures would also be in keeping with the proposal being developed at European Community level for a Community-wide scheme. The amendment provides for a specific reference to appeals against refusals to remove any doubt as to whether the provisions of this section included such a power.
Amendment agreed to.
Government amendment No. 250:
In page 53, lines 21 to 25, to delete subsection (4) and substitute the following new subsection:
"(4) It shall be an offence—
(a) to use a symbol provided for in a scheme under this section, or a similar symbol, on the labelling of a product or in connection with a service which has not been approved under the scheme or for which the approval has been withdrawn or, if approved, no longer meets the standards and criteria of the scheme, or
(b) for a person to make a statement or claim in writing or otherwise in connection with the use, or an application or an appeal against a refusal for the use, or for the withdrawal, of a special symbol which to his knowledge is false or misleading in a material respect.".
The offence provision under subsection (4) is quite limited and does not encompass the full range of actions or emissions which need to be prohibited in order to maintain public credibility in the scheme. The most important of these relates to the making of false advertising claims other than those which actually involve the wrongful use of the symbol. The submission of false information in relation to test results, for example, when applying for the use of a symbol will also be an offence. The proposed amendment, therefore, gives further backing to the role of such a scheme in providing authoritative information for the consumer.
Amendment agreed to.
Section 75, as amended, agreed to.
NEW SECTION.
I move amendment No. 251:
In page 53, before section 76, to insert the following new section:
"76.—The Agency shall be completely independent in the exercise of its functions.".
This amendment seeks to make the agency completely independent in the exercise of its function in order that the public would have full confidence in the independence of this agency and in its capacity to properly and adequately protect the environment as a first priority. Under the section it is possible for the Minister to give general directions in writing to the agency in relation to environmental protection policy. It seems quite possible that the Minister could give directions to the agency which, in effect, will reduce the agency's capacity to protect the environment which would mean that standards of protection may not be the highest and may result in a diminution in the quality of the environment. This has potential to undermine public credibility in the ability of the agency to properly fulfil its functions. For those reasons we have put down this amendment suggesting that the agency should be completely independent in the exercise of its functions. In any case the Minister will have a significant influence on the composition of the advisory committee and so on and the first priority has to be seen to be the protection of the environment. We could be back to the old debate about what are the highest standards and what is practicable and so on.
I am not in a position to accept this amendment because it is aspirational and would not achieve much. This agency will be operationally independent of the Government of the day and of any vested interests. We have ensured that by the way in which the board of directors and the director general will be appointed, by the functions assigned to the agency, in relation to the requirements to declare interests and so on by the director and the board of directors and in relation to the issuing of licence where it will be an offence to lobby the agency.
In relation to general policy directives, it is the case, and must remain the case, that policy is a matter for Government and any agency in the State must abide by Government policy. I would envisage that if somebody applied to the agency to build a nuclear power station, since it is Government policy not to have such a facility in Ireland, they will give a direction to the agency that that facility was not to be licensed. This provision exists in the legislation in relation to An Bord Pleanála and has only been used on two occasions. On one occasion it was used when a direction was given to the board in relation to a shopping centre development when it was Government policy at the time that there would not be a plethora of them all over the place, one putting the other out of business. The board were asked to take account of developments in adjoining areas. It was a reasonable request and was felt by politicians on all sides at the time to be a desirable directive to An Bord Pleanála. The second directive given to An Bord Pleanála. was in relation to heating systems in houses. In an effort to combat smog in Dublin, a direction was given to the planning authorities and An Bord Pleanála that where planning permission was being granted for residential development an alternative to an open fire had to be provided, so that the householder was not solely dependent on the burning of solid fuel, and so contributing to smog. The provision for a policy directive in this Bill is the same kind of provision that exists in an Bord Pleanála legislation and is vital and necessary. People may feel that a nuclear power station is an extreme example but if no policy directive were given to the agency, the agency would be fully entitled to licence such a facility which would not be acceptable. It would only be used in situations like that, and any directive given would be public.
The Minister could not possibly accept this amendment to hand over total responsibility to the agency, when responsibility for all State agencies rests with the Government. Through this Bill the agency is receiving enormous powers, freedoms and strengths. I could not agree to that forceful amendment. In reading through material before and since this debate began, I note the agency has received enormous powers in the exercise of its functions. I am amazed at Senator Upton asking for complete independence for a national agency.
I do not think the Minister or Senator Honan can have it every way. There has been a tremendous amount of emphasis on the independent nature of this organisation in statements from the Minister's side of the House. If that is the case, then I have great difficulty in seeing what is wrong with the agency being completely independent in the exercise of its functions. If this agency is to have limited independence, which is the reality, I would like to see that spelt out to the public so that they can understand that what is being sold to them as an independent agency is less than that and that the Minister has the capacity to lay down general policy directives.
I am interested that the Minister should talk in terms of the Government having the capacity to instruct the agency not to license a nuclear plant. It follows from the provisions of this section that the Government have the capacity to tell the agency to license a nuclear plant. That is the environmental equivalent of setting the cat in the canary cage to tear it apart. The capacity to lay down policy directives undermines the independence of the agency and opens up a can of worms.
We should place less emphasis on the independence which has been sold as a central feature of the agency. It is not independence but limited, qualified independence which can become completely distorted and destroyed by an appropriating policy directive. This section gives the Minister power to make a policy directive which would prevent the agency from protecting the environment.
The debate is not about the independence or otherwise of the agency but about whether the amendment achieves the objectives of establishing the independence of the agency. I agree with Senator Honan that it goes beyond the bounds of a reasonable statement on the independence of the agency. We are almost saying that we are going to create an independent Republic which will devolve onto itself powers not even subject to law. That is the effect of what is being said here.
I am taking on the tone and the spirit of what the Minister has been saying.
Everything the Minister said from the Second Stage debate onwards and everything contained in this Bill is intended to establish an independence for the agency which will allow it to operate effectively and to protect the environment.
It will allow it to do exactly what the Minister tells it to do.
The proposed amendment is too wide in its scope, too aspirational and every agency within the State must be circumscribed by a particular set of rules.
I am satisfied that this agency will be fully independent in the manner it sets about the task given it, by the way it is appointed, by the way it operates, by the advisory committee's involvement and in relation to its licensing role. If Senator Upton reads section 76 which his amendment would delete, he will note that section 76 (3) says:
Nothing in this section shall be construed as enabling the Minister to exercise any power or control in relation to the performance in particular circumstances by the Agency of a function assigned to it by or under this Act.
In the other words, the Minister cannot give a direction that interferes with the functions of the agency but what he can and should be entitled to do is to give general policy directives informing the agency of Government policy at a given time. It may be Government policy, for example, that certain kinds of activities should not operate in a particular region for reasons to do with the environment and the absence of that power could lead to difficulties for the agency.
Senator Upton would agree that An Bord Pleanála, — despite some of the criticisms we have heard — have been seen to be an independent planning appeals board. An Bord Pleanála were given a policy directive because, at the time, it was considered undesirable by all parties in Dublin County Council to give approval to individual planning applications for shopping developments around the city and county which would put existing developments out of business because such a plethora of developments were being granted approval. The Minister of the day felt it was necessary to issue a directive in relation to distance. It was also considered desirable in relation to the smog problem in Dublin, that a directive be given that the board, before sanctioning residential developments, should ensure that an alternative heating system was provided so that new developments would not add to the problem of smog in the city and county. That is the kind of directive we are talking about here. It would be undesirable to remove the power.
We may not like the fact that it is Governments and politicians who draw up policy and we may decide that we should set up boards all over the place, make ourselves redundant and become debating societies but it is we, the legislators, who draw up policy. It is appropriate that a directive outlining the policy of the Oireachtas on a whole host of matters should be given to an agency in the State. If not, we are accepting that we are a mere debating society. It is not acceptable that State agencies be responsible for formulating policy on the environment.
While I support Senator Upton in what he is trying to achieve, we have to be realistic and live in the real world. While "Independent" is a lovely word and suggests that one will be immune from any possible interference or control — the Judiciary and An Bord Pleanála are independent — but at some stage, say, in relation to appointments, certain criteria or guidelines will have to be laid down. With regard to the directives, will the Minister tell the House if guidelines will be drawn up and submissions sought from other Departments on how the agency should function in seeking to protect the environment? Will other agencies be consulted to obtain their views before the Minister gives general guidelines or directives? It is important that the agency be seen to be independent and does not have to seek the Minister's consent for every action. It is important that the Minister consults other Departments and agencies before he issues a directive. It is also important that any proposed directives be brought before the House to allow us, if necessary, comment on them.
We have no plans to give a directive. Therefore it may be some time before one is given. Indeed, one may never be given. It is not as if we want to give the agency a list of directives from day one; we have no plans at present to give any directive to this agency. This provision is being included to cover a situation which may arise in the future, because as the House is aware, Government policy can change as circumstances change. Any directive given will relate to general policy. A Minister will not be able to give a specific directive to the agency nor will he be able to interfere with it in its ordinary everyday activities. I want to make that perfectly clear. There is no intention to give the Minister the power to give a specific directive to the agency in a specific case. I do not envisage this provision being used much, if at all, I have no intention of using it in the forseeable future nor do I have a big file that will be sent to the agency. I think, that is understood. A similar provision was included in the legislation which established An Bord Pleanála, and the Radiological Protection Institute.
I accept the Minister of State's assurance that specific policy directives relating to individual licence applications will not be given but the reality is that a general policy directive will affect a series of specific cases. That is the problem. Second, the agency may well find itself looking over its shoulder wondering what the Minister is thinking and if he is just about to take his pen out of his pocket to draw up a directive. State agencies know well that there is a very good communications system in operation between ministerial offices and their offices. Certainly that was my experience when a member of a State board. All were very anxious that they would not annoy the Minister in anything they might do. If I remember correctly, that board were supposed to be independent. This section may seriously undermine the independency of the agency. The Minister will be able to do this, directly, by giving the agency directives and in a more subtle way by letting key people in the agency know that he is not happy with its behaviour. Given the nature of Irish politics that is the most likely way in which business will be done rather than a overt directive being issued and published in Iris Oifigiúil. If the Minister is given the power to issue directives he will be able in a very subtle way to influence the agency, to undermine its independence and restrict its capacity to make protection of the environment its first priority.
To be fair to Senator Upton, he has made a very good case for his amendment while Senator Cosgrave moved on to deal with other amendments. If it is in order, the question should be put given that the Minister has responded.
Is the amendment being pressed?
With great reluctance, no, but I am still very unhappy.
Amendment, by leave, withdrawn.
Section 76 agreed to.
NEW SECTION.
Government amendment No. 252:
252. In page 54, before section 77, to insert the following new section:
"77.—The Agency shall consult with such public authorities, persons or bodies as it considers necessary or as may be prescribed in relation to the performance of its functions under this Act or such of those functions as may be prescribed and shall have regard to any views given or recommendations made by such public authority, person or body.".
This is a technical amendment which changes some of the wording of the existing section in the interests of clarity. The general content and the intention behind the section are unchanged. In view of the large number of authorities and other persons or bodies with which it is desirable that the agency would consult in the carrying out of its functions it is necessary that the maximum flexibility be provided for under this section in ensuring that such consultation takes place. The effect of the proposed amendment is to clarify that the Minister's powers to require consultation may be exercised both in relation to authorities, persons or bodies generally, and in some implementation of specific functions of the agency.
Some obvious examples of authorities would be health boards, local authorities, relevant Government Departments, the Health and Safety Authority, the Wildlife Service of the Office of Public Works, the Geological Survey of Ireland and so on. The agency may exercise its own discretion to consult with non-prescribed organisations whenever it wishes but the provisions of section 77 are intended to cater for situations where specific requests for consultation have been made or the Minister considers it necessary that such consultation should take place.
Amendment agreed to.
Section 77 deleted.
Section 78 agreed to.
NEW SECTIONS.
Amendment No. 253 not moved.
Acting Chairman
Amendments Nos. 253a, 255a, 272a, 273a, 278a, 281a, 283a, 289a, 290a, 290b, 290c, 291a, 299a, 300a, and 304a form a composite proposal.
I move amendment No. 253a:
In page 54, before section 79, but in Part IV, to insert the following new section:
"79.—(1) A person shall not carry on an activity which requires a licence or permit for control of water pollution, air pollution, waste or noise, other than an established activity, on or after such day as may be prescribed unless a licence or revised licence under this Part is in force in relation to the activity.
(2) The Minister may, by Order, provide that any established activity shall not be carried on, on or after such date as may be specified in the order, unless a licence or revised licence under this Part is in force in relation to the activity.
(3) Where an order under subsection (2) comes into operation, the carrying on of an established activity to which the order relates shall, in the period before a licence in relation to the activity is granted or refused, be deemed not to have contravened the provisions of this Part provided that, before the date specified in the order an application has been made for a licence in respect of that activity and the requirements of regulations made under section 84 in relation to the application for the licence have been complied with by the applicant therefor.
(4) In this Act, "established activity" means an activity—
(a) in respect of which a permission under Part IV of the Act of 1963 is granted prior to such day (in this subsection referred to as "the relevant day") as may be prescribed by the Minister and which on the relevant day has not ceased to have effect, in accordance with the provision of sections 2 and 4 of the Local Government (Planning and Development) Act, 1982, or
(b) which is, on the day immediately prior to the relevant day, or was, at any time during the period of 12 months ending on the day, immediately prior to the relevant day, carried on, other than an activity which involves or is associated with an unauthorised structure or an unauthorised use within the meaning of the Act of 1963.
It is clear that the purpose of the above group of amendments is to deprive the agency of their most important and effective function, that is, the control, through a system of integrated licences, of those activities with the greatest possible potential for pollution. A fundamental issue is at stake here. From the very beginning I was concerned that this agency would have teeth, that is, that they would have direct control functions backed up by the necessary resources and with stiff penalties to act as an appropriate deterrent. Part IV of the Bill was drafted for this specific purpose.
If this function was to be removed from the agency all that would remain is another largely consultative advisory or supervisory organisation with no real power to ensure that their wishes were implemented. In a relatively short period of time the agency would be reduced to an ineffectual talking shop, another bureaucratic layer in the decision-making process. The system of integrated pollution controls proposed in Part IV of the Bill is a new concept and more complex to administer than the existing system of separate licences or permits under the Water Pollution or Air Pollution Acts or waste regulations. It is not widely operated in other countries, although there is increasing interest in the concept and reception of its value as giving the best option as far as the environment is concerned. The European Commission is now taking an interest also and it is likely in the long term that it will bring forward some proposals to have this concept incorporated into all member states' legislation.
I mention these facts in support of the argument for making integrated pollution control a resposibility of a national expert body, particularly at this stage of its development. It is not a concept that could be simply imposed on sanitary authorities which at this stage have neither the resources nor the expertise to implement it. The introduction of such a sophisticated concept on the local authority system would represent a major step backwards in institutional arrangements for environment control and would likely result in failure and a discrediting of the system which has been welcomed both by developers and environmental groups alike.
The fact that the granting of licences, except those covering the discharge of effluent into sewers and permits under the Water Pollution Acts, Air Pollution Act and waste regulations, is a function of 33 major local authorities at present seems to have been ignored by the proposers of the amendment. Their proposals would have considerable implications for those 54 authorities which do not have licensing functions at present. I need not go into any details of the duplication of waste of public resources involved in such an exercise.
I feel very strongly that if this agency are to have teeth, they must have a licensing function. I also feel that the local authorities, do not have the necessary expertise, resources, laboratory facilities, staff or personnel which would allow them to examine applications for an integrated licence to establish very difficult and technical processes which may pose major problems for the environment, if anything goes wrong. Manufacturing processes are changing all the time and it is important that we have the necessary environmental expertise which would allow us to cope with those changes. Given our small population spread out over 33 different local authority areas it is not feasible, from an economic point of view, to have these resources available in each local authority area. The most appropriate procedure is a national agency to license complicated and difficult processes. It is also important that the agency be given the power, and the necessary staff to monitor developments to make sure licensees are complying with all the requirements of the licence. As I said, it would be far more appropriate to issue an integrated licence, covering water effects on air and of waste disposal than have a person apply for separate licences, which is the case at present.
Some organisations have expressed concern about the difficulties which may be encountered as a result of having separate planning and licensing regimes. I am considering how they may be tied together and the possibility of making regulations to bring Part IV of the Bill into effect. Obviously we will seek to ensure consistency and that the two systems complement each other. The intention is not to complicate the matter, but rather that the two would complement each other. When we draft the regulations we will seek to ensure that the systems fit in together. I can give the House that assurance. I am aware that environmental organisations, particularly An Taisce, and some environmental experts are concerned about how this might operate in practice but I can give an assurance that when we come to draft the regulations to give effect to Part IV of the Bill account will be taken of the difficulties that have been highlighted.
The intention of the amendments is to prevent a situation occuring where the agency grant a licence for a specific purpose and then discover three years on that there is difficulty with which the agency will have to deal and admit that they were wrong to give the licence in the first place. Each and every one of us is reluctant to admit that we made an error. As I said the intention is to prevent the body or group who recommended the giving of a licence adjudicating on the error at a later stage. There is a lot of merit in having another licensing authority such as, in the case of planning permission, the county councils. The county councils could have been used in this case as the licensing authority with the agency as the overall supervising body to ensure licences granted by the local authority were in accordance with the terms and conditions laid down and, if difficulties arose down the road in an industry, the agency would adjudicate as an independent body without being embarrassed about the fact that they examined the project and had granted the licence in the first place. That is the thought behind those amendments.
I can appreciate the Minister's point that if the local authorities are made responsible for issuing the licences we would have another advisory agency who would not have the necessary powers or personnel but I am sure the Minister can also appreciate the difficulty I have highlighted, that is, if difficulties arise the people who granted the licence will now have to adjudicate and perhaps acknowledge, that an error was made. These amendments have merit that they would prevent the agency having to re-examine a project for which it had granted a licence.
I appreciate the Senator's concern that the agency do not get a bad name, but I do not think we can establish an agency and never expect them to disagree with anybody. I also think that the Environmental Protection Agency will be brought into disrepute if it is not free to intervene if activities are not acceptable. I do not think that is an argument for not giving the agency a licensing function. The main reason for giving them the licensing function is that it is not possible for the 33 local authorities to have the necessary expertise, people with scientific training and expertise, equipment and laboratories facilities. It is not possible for small local authorities, such as Leitrim or Carlow which might have only one activity in their areas from an economic point of view, to have the necessary expertise, equipment, staff and back-up facilities required to deal with and monitor very technical processes. It is appropriate therefore if we establish an Environmental Protection Agency to give it this function.
When I first came up with the concept of an Environmental Protection Agency I had a different body in mind but in preparing the legislation and having met representatives of industries and environmental organisations I immediately realised that there was a difficulty in relation to licensing activities; the expertise was not available because it was too expensive. I felt that, since we were establishing an agency it was appropriate to allow that body deal with these complex and difficult activities which can cause major environmental problems if something goes wrong.
I have not closed my mind to amendments to this section and intend coming back, perhaps on Report Stage, with some. I am still considering many of the suggestions made. I want to ensure that the agency keeps the licensing role and is compatible with An Bord Pleanála and does not come in conflict with them. I appreciate the concern of industry representatives in particular that there will not be another layer in what is already a very bureaucratic system. I am also concerned that I do not add to their burden; they already have to fulfil a number of requirements. It is not a question of wanting to cause delays, to add to their burden or to have yet another body to adjudicate; I want to steamline the system and make it more efficient. I also want to have available people who have received scientific training. I think this will be of help to local authorities, of whom are snowed under trying to deal with some of these matters which take up a disproportionate amount of their resources. Many of them feel that this is the appropriate way to deal with these matters. I share Senator Naughten's concern that the agency should complement the planning system and not come into conflict with them. That is not our intention or desire. I probably will come back on Report Stage with some amendments to clarify that matter further.
This is the most important section of this legislation. I understand the concern of the mover of the amendment. We do not want another layer of bureaucracy and will try to ensure powers are not taken from local authorities. Earlier we discussed where environmental units would be located. Will they cover constituencies or health board regions? I welcome the Minister's assurance that she will look at this matter again, because as I said this is the most important section of this Bill.
Would the Minister agree, that if we give the local authorities, a licensing role, we may end up with clean and dirty local authorities? There is a danger, as a result of local pressure that in certain circumstances, undesirable activities will be approved. Abuses would be more likely to occur under such a system. I believe such a move would lead to duplication and very scarce resources being wasted. The very best expertise should be available in one central agency who would give advice and adjudicate. I would be very concerned about the waste of scarce resources if we were to allow each local authority to make decisions. That is not to say the local authorities should not have an input; of course they should. Provision is made for this in the Bill.
As the Minister said, the agency must have teeth, to ensure the environment is protected so that we will be able to stand up for the food industry, the tourism industry and the industries on which the economy depends and derive the economic benefits which will flow from it. I am concerned that local pressure groups will be able to influence decisions made locally. I do not object to decisions being made locally, but I can see the difficulties that might arise.
I have outlined the position as I see it. My one great fear is that the agency will find itself in a difficult position where, having granted a licence, three or four years down the road later, they have to review it and perhaps discover that they should not have granted it. That is one of the reasons I think there is merit in the argument that the local authority should grant licences in accordance with the agency's strict guidelines.
I also take the Minister's point about the technical expertise, where she draws a comparison with a county like Leitrim who may have only one application, and may not have the technical expertise to deal with it. Many other small counties would fit into the same category. I would envisage those county councils being able to draw on the expertise in the agency to advise and brief them on the guidelines required for that type of industry. That is the situation as I see it.
This is an essential function for the agency, otherwise it will just become yet another advisory body. It is essential that the agency should be the licensing authority for a number of reasons, some of which have been discussed already, but particularly the reason of consistency and expertise. We are setting up probably the most enlight-ended and advanced environmental protection agency in Europe and, in turn, one of the most advanced anywhere. Much of that excellence would be lost or dissipated if it does not have the power to license. It is essential that the very high scientific and technical expertise which has been assembled for this agency, and which no other body here at the moment possesses, or is likely to possess, be available for the country as a whole. We cannot have it advising to one body and not to another, and all sorts of county or local differences occurring. It is essential from everyone's point of view. It is certainly essential from the point of view of industry, that they know they are going to get a consistently high scientific consideration of their situation. Equally, and even more so, it is essential for the general public to know that a very high standard will be applied uniformly throughout the country.
I agree with what has been said. Obviously, one of the main difficulties many people involved in the private sector, in particular, have is that different standards are enforced in different regions and by different local authorities. They feel there is not consistency between what is expected in one area and in another, and thereafter the monitoring of the enforcement varies. Many people in the private sector said when I was working on this legislation, "we do not care what standards are imposed, but make sure if we are going to have them that our competitors are not going to get away in county X or county Y without having the same high standards." Therefore, the most appropriate way to ensure that there is consistency and uniformity in the requirements of a licence is to have it dealt with by one body and not to have it dealt with by 33 separate bodies.
On balance what we are suggesting in this Bill is appropriate. This country is full of advisory bodies and so on who scream at Governments that they do not have enough clout or power. One of the criticisms of An Foras Forbartha was that they did not have sufficient teeth or power or, perhaps, independence. The agency will not lack clout, power or independence. When we are establishing a body that is being given a real say in what kind of activities can be licensed and on what basis they can be licensed and so on, we should not be seeking to remove that power from it. Of course, it will be the case that no matter who decides about licences they can be reviewed or, subsequently, examined and we provide for that in the Bill.
Section 85 allows the agency to review a licence under certain conditions, and that is appropriate. There obviously will still be environmental difficulties even when the agency is up and running. It is not going to be an answer to all our problems. I do not want people to think that once the agency is established and is fully operational that will be the end of environmental unrest. Far be it for me to suggest that would be the case. obviously, the agency, from time to time, is going to have to give advice or give a licence to operations that other people might not find acceptable. It will do so on the basis of the highest possible environmental expertise being applied to its decision. That does not mean necessarily that it will be acceptable to everybody. It certainly will be done on the basis of independence and that the highest possible standards were applied and expected. It will be monitored thereafter.
To set up a body, as Senator Naughten suggests, that would never fall foul of anybody would be virtually impossible. It would literally be a meaningless body if it never fell foul of anybody because by its very nature it is going to be involved in advice, guidance and guidelines. There are obviously going to be people who might not always find that acceptable from either a very extreme environmental or a very extreme industrial development point of view. It is the appropriate body and will command respect. It is being set up in an atmosphere of broad goodwill from politicians of all sides and groups within the community. It is going to have a lot of public credibility and in time it will earn for itself a very good reputation. People will feel that when the agency gives a licence the agency feels it can monitor that activity and that that activity is not going to pose a danger or threat to the environment.
As I said earlier, I intend coming back with some amendments on Report Stage and, obviously, we intend by way of regulations and so on to make sure that we do not further complicate an already complicated planning procedure. If that is acceptable to the House, I am more than happy to give that assurance.
Amendment put.
The Committee divided: Tá, 9; Níl, 17.
Tá
- Cosgrave, Liam.
- Harte, John.
- McMahon, Larry.
- Manning, Maurice.
- Murphy, John A.
- Neville, Daniel.
- Norris, David.
- O'Toole, Joe.
- Upton, Pat.
Níl
- Bennett, Olga.
- Bohan, Eddie.
- Byrne, Hugh.
- Byrne, Sean.
- Cassidy, Donie.
- Conroy, Richard.
- Dardis, John.
- Fallon, Sean.
- Farrell, Willie.
- Finneran, Michael.
- Fitzgerald, Tom.
- Foley, Denis.
- Haughey, Seán F.
- Honan, Tras.
- Keogh, Helen.
- Lanigan, Michael.
- Ó Cuív, Éamon.
Tellers: Tá, Senators Cosgrave and Neville; Níl, Senators Foley and Fitzgerald.
Amendment declared lost.
SECTION 79.
Government amendment No. 254:
In page 54, subsection (1), lines 17 and 18, to delete "specified in the First Schedule".
This is a drafting amendment. Activity is defined in section 3 of the Bill as "any process, development or operation specified in the First Schedule." There is no need, therefore, to repeat "specified in the First Schedule" in this section.
Amendment agreed to.
I move amendment No. 255:
In page 54, subsection (1), line 18, to delete", other than an established activity,".
Basically, this amendment seeks to ensure that once this Bill comes into force every activity which has a capacity to cause pollution should be licensed. In other words, it seeks to eliminate pollution immediately the Bill is enacted.
It certainly is the intention that the agency will be licensing both existing and new activities. At the outset it probably would not be desirable that they would have responsibility for existing activities. In the UK, for example, in the recently established integrated pollution control system existing activities were given up to five years to comply. I do not envisage that in our case that kind of timespan will be required. However, section 79 (2) indicates that by order we shall provide that an established activity of any class specified would have to be licensed by the agency within a specified time. I will be happy to look at this on Report Stage. I accept the intention behind this amendment. It is the Government's intention that existing activities be licensed by the agency as soon as it is practicable to do so. I already gave a commitment earlier in relation to something else and I will have a look at these matters, too, before Report Stage.
I thank the Minister for her flexible attitude in relation to this matter. I hope she will not be taking her standards from what is going on in Britain. I strongly believe that we should be setting the pace for Europe in relation to environmental protection. I think there is a lot of value, even from a commercial point of view, for this country in doing that.
Amendment, by leave, withdrawn.
Section 79, as amended, agreed to.
SECTION 80.
Amendment No. 255a not moved.
Acting Chairman
Amendments Nos. 256 and 285 are related and may be discussed together.
Government amendment No. 256:
In page 55, subsection (1), lines 3, 4 and 5 to delete "decide to grant the licence subject to, or without, conditions or to refuse the application." and substitute "grant the licence subject to, or without, conditions or refuse the application.".
These are technical drafting points. The terminology in the Bill at present implies that there are two elements; the making of a decision and the subsequent granting of a licence. This wording is more appropriate to procedures such as the planning control system where there can be an appeal against the decision before the licence is actually granted. The procedures in the Bill are different in that the proposed decision is notified in the first instance and after any objections are disposed of the licence is granted or refused. There is no question of a decision to grant before the actual grant is made. It is proposed therefore to delete the references to "decide to" thereby giving the agency a simple power to grant a licence but always subject to the provisions of Part IV of the Bill in relation to procedural matters including the two-phased consultative appeals procedure. The amendment to section 82 (2) is consequential on the amendment to section 80 (1).
Amendment agreed to.
Acting Chairman
Amendments Nos. 257, 258 and 259 are related and may be discussed together.
Government amendment No. 257:
In page 55, subsection (2) (b), line 13, to delete "and".
As drafted, subsection (2) could be interpreted as limiting the agency's consideration of an application for a licence or the review of a licence to the criteria listed in paragraphs (a) to (c). In order to allow the agency maximum flexibility in the matter and to ensure that environmental pollution considerations are taken into account a new paragraph (d), is proposed. It is entirely at the discretion of the agency the matters in relation to the prevention, limitation, elimination, abatement or reduction of environmental pollution it may decide to have regard to. With regard to Senator Ryan's amendment I must point out that there is no such body as the health and safety authority and the amendment therefore is not appropriate. The correct title is the National Authority for Occupation Health and Safety. However, in the spirit of the amendment, while I agree that the reviews of that authority could be an important factor in the consideration of an application for a licence or the review of a licence, it could be just as relevant for the agency to consult with the health board, the Heritage Council, the Wildlife Service of the Office of Public Works and many other bodies. As I have stated before I am against singling out in the body of the Bill specific organisations with which the agency would consult. Sections 77 and 78 have been included in the Bill to provide for the type of consultation involved and requires that regard must be had to the views given or recommendations made. I might add that there has already been discussions between officials of my Department and the National Authority for Occupational and Health Safety on the need for consultation between the authority and the agency and there is full agreement on the matter.
Amendment agreed to.
Government amendment No. 258:
In page 55, subsection (2) (c), line 16, to delete "concerned." and substitute "concerned, and
(d) such other matters related to the prevention, limitation, elimination, abatement or reduction of environmental pollution as it considers necessary,".
Amendment agreed to.
Amendment No. 259 not moved.
Acting Chairman
Amendments Nos. 260, 261, 264 and 269 are related and may be discussed together.
Government amendment No. 260:
In page 55, subsection (3) (a), lines 19 to 20, to delete "will not cause significant air pollution and will comply with" and substitute "will not result in the contravention of".
These amendments refine the definition of the licensing criteria set out in section 80. Amendment No. 260 is a technical one designed principally to make the wording of subsection (3) (a) more consistent with that of the Air Pollution Act, 1987. In that Act quality standards relate to ambient air quality only. Accordingly, one cannot accurately speak of a particular emission complying with an air quality standard. The proper formulation as employed in the Air Pollution Act is that an emission should not result in the contravention of an air quality standard. Amendment No. 260 imports technology into this Bill.
Amendment agreed to.
Amendment No. 261 not moved.
Amendments Nos. 262, 265, 267 and 268 on the list of additional and substitute amendments are Government amendments and are cognate and all may be discussed together.
Government amendment No. 262:
In page 55, subsection (3) (a), line 22, before "any relevant" to insert "will comply with".
Amendment agreed to.
Acting Chairman
Amendments Nos. 263 and 266 are cognate and amendments Nos. 270 and 271 are related. All four amendments may be discussed together.
I move amendment No. 263:
In page 55, subsection 3 (a), line 23, after "1987" to insert "; where no standard is specified, emissions shall at least comply with the most stringent standard specified by any member state of the European Community".
The amendment is self-explanatory and I would like to hear the Minister's response to it.
Under subsection (3) as drafted even if no standards are specified in relation to paragraphs (a) and (b), the best available technology not involving excessive costs must be used and any emissions from the activity must not cause significant pollution. These two requirements are broad enough in their application to encompass the basic principle behind amendments Nos. 263 and 266. Any other all embracing requirement of the type proposed by Senator Ryan would fly in the face of the established decision-making processes and procedures of the European Communities. Common emission limit values and environmental quality standards are agreed by the Council of Ministers following a period of full consideration of the implications of the proposed standards of each member state and following lengthy negotiation where appropriate. To place a statutory requirement on the agency to indiscriminately take on board the highest standards of every member state of the Community without taking into account the circumstances which gave rise to those standards could place an unjustifiable burden on development in general and in particular, on those activities which are licensable by the agency, on similar activities in other member states, and those activities licensable by local authorities here. The pollution problems of other member states are generally more serious than here, and it would not be uncommon for very stringent emission limit values to be applied on a localised, regional or national basis to restore the environment concerned to a quality which would be similar to that which already applies in this country.
With regard to amendment No. 271, emissions are defined in section 3 to include the disposal of waste. I consider it sufficiently clear that words such as "prevent", "limit", "eliminate" or "reduce" cover the intention of the Senator's amendment. Acceptance of the amendment would alter the definition of BATNEECs as defined in section 5 (1) which has already been agreed subject to a number of matters being considered on Report Stage.
Amendment No. 270 is proposed in the interest of ensuring consistency of the terminology used in this section with that used throughout the Bill. For example, section 4, which defines environmental protection and section 5 which elaborates in greater detail on the principle of best available technology not entailing excessive cost. I have already explained that the use of BATNEECs allow the widest possible scope for the prevention of emissions, that is, the preventative approach as well as the reduction or elimination of emissions. The whole issue of waste, including reduction of waste at source, is being considered as part of the proposed new waste legislation being prepared in my Department.
I am not clear on one point. I accept that to comply with the highest standards of any member state can create difficulties, particularly within the decision-making process of the Community. However, it can take a long time for a Community directive to be implemented by member states and I would like a commitment from the Minister that we would never operate at a standard lower than that directed by the Community.
Amendment, by leave, withdrawn.
Amendment No. 264 not moved.
Government amendment No. 265:
In page 55, subsection (3) (b), line 24, before "any relevant" to insert ", or will not result in the contravention of,".
Amendment agreed to.
Amendment No. 266 not moved.
Government amendment No. 267:
In page 55, subsection (3) (c), line 31, before "any relevant" to insert ", or will not result in the contravention of,".
Amendment agreed to.
Government amendment No. 268:
In page 55, subsection (3) (c), line 36, before "any regulations" to insert ", or will not result in the contravention of,".
Amendment agreed to.
Government amendment No. 269:
In page 55, subsection (3), lines 38 to 40, to delete paragraph (e) and to substitute—
"(e) any emissions from the activity will not cause significant environmental pollution, and".
Amendment agreed to.
Government amendment No. 270:
In page 55, subsection (3) (f), line 42, after "limit" to delete "or abate" and substitute ", eliminate, abate or reduce".
Amendment agreed to.
I move amendment No. 271:
In page 55, subsection (3) (f), line 42, after "any" to insert "generation of waste by the activity and to prevent, limit, or abate any".
Amendment No. 271 is self-explanatory. It proposes the inclusion of the words "generation of waste by the activity and to prevent limit, or abate any". It seems that Government amendment No. 270 has taken on board almost all of it and, if so, I will not press this amendment.
Amendment, by leave, withdrawn.
Government amendment No. 272:
In page 56, subsection (7) (b) (i), line 33, after "section" to insert "10 or".
Section 80 (7) as it stands effectively gives immunity from proceedings under section 11 of the Water Pollution Act, 1977, to an activity operating within a licence from the agency under this Part. The Water Pollution Act already excludes from these kinds of proceedings discharges licensed under the water pollution or fisheries legislation. The purpose of the amendment is to confer a similar immunity on proceedings under section 10 of the Water Pollution Act, 1977. This reference was overlooked in the initial draft of the Bill.
Amendment agreed to.
Section 80, as amended, agreed to.
SECTION 81.
Amendment No. 272a not moved.
I move amendment No. 273:
In page 57, subsection (1), line 3, after "Part" to insert "shall endeavour to minimise or eliminate emissions from the activity and".
This amendment is straightforward enough and I do not know why the Minister should not accept it.
I have no problem accepting it but that is already covered in section 80 (3) which sets out a number of criteria about which the agency must be satisfied before granting a licence. The last three lines of section 80 (3) require the agency to attach, where appropriate, conditions relating to the specified criteria which include BATNEEC to prevent, limit, eliminate, abate or reduce any emission.
Amendment, by leave, withdrawn.
Section 81 agreed to.
SECTION 82.
Amendment No. 273a not moved.
Acting Chairman
Amendments Nos. 274 and 275 are Government amendments; they are related and may be discussed together.
Government amendment No. 274:
In page 59, subsection (3), line 7, to delete "subsection (1) (a)" and substitute "section 80".
These amendments are simple drafting points. Amendment No. 274 is necessary as applications for licences are made under section 80. While section 82 (1) (a) refers to this application, it deals only with the notification of the application of a licence. The purpose of amendment No. 275 is to ensure compliance with the requirements of fees regulations under section 91, in addition to those procedural regulations under section 84, before objections may be made to the proposed termination of licences. This is in line with appeals to An Bord Pleanála.
Amendment agreed to.
Government amendment No. 275:
In page 59, subsection (5), line 21, to delete "section 84" and substitute "section 84 and 91".
Amendment agreed to.
Acting Chairman
Amendments Nos. 276 and 280 are related and may be discussed together.
I move amendment No. 276:
In page 59, subsection (6), lines 25 and 26, to delete "the Agency shall have an absolute discretion to hold an oral hearing" and substitute "the Agency may hold an oral hearing, and shall do so if the development is a major one (i.e. if the development is subject to mandatory environmental impact assessment)".
This amendment seeks to ensure that an oral hearing will take place where an industry with a major environmental impact is being proposed. The amendment is self-explanatory.
I have serious difficulty with this proposal. I see what Senator Upton is attempting to achieve and I agree with his thinking on it, which I am sure is to allow a full discussion to take place. However, many developments would have an environmental impact which might not necessarily be negative. I have particular difficulty with the second amendment which proposes to increase the period of time in which an appeal can be lodged from two months to a year. My amendments, which are next, are aimed at reducing that time limit. I am worried that this amendment will create a requirement to have an oral hearing in each case. I would like the agency to have discretion and I would support what Senator Upton said on that point, but the fact that they would be required to have an oral hearing on each occasion could be regressive. People should know within two months if they are going to lodge an objection. A period of one year means, in effect, that a proposal to establish an industry would be held up for a further ten months. I do not wish to be critical of the amendment but having these words in the Bill would mean a proposal could not go ahead until a year had elapsed and that could have implications with which I would have difficulty.
I have much sympathy with the views expressed by Senator Upton on this amendment in so far as there is a great deal of merit in an oral hearing. I also realise the practical difficulties of it. Unfortunately in this day and age people are very quick to object to any development. We have seen that time and time again with appeals from An Bord Pleanála. For this reason I am reluctant to insist on all applications having to meet the criteria of an oral hearing. The agency will have the option of an oral hearing and we should give them that much freedom.
I could not support the second amendment to extend the time limit from two months to one year. That would hold up industry as somebody could object to an application the last week of the 12 months and that could not be tolerated. Not long ago there was an appeal to An Bord Pleanála; — the time span for an appeal is one month but the fact that appeal was made cost the developers substantial sums of money. I do not support extending the time limit from two months to one year.
I am somewhat confused at the way the amendments are amalgamated. I did not realise that amendment No. 278 was being taken at this stage. I want to clarify the basis for this amendment. It was put down because we were advised that limiting the time for an objection to two months may be unconstitutional. I am not particularly hung up on the idea of two months or two years and I accept the validity of the views expressed by Senators Naughten and O'Toole. I put down this amendment simply to alert the Minister and his officials to the possibility that restricting the time to two months may be unconstitutional. I base that on a judgment by Mr. Justice Costello reported in 1989 in the Irish Law Court Reports Monthly, page 282. The case referred to an action between Mr. Brady and Donegal County Council, where there was a restriction on the time limit allowed for making an appeal. In that case Mr, Justice Costello, in his judgment, suggested that the time limit may be too short and may be in conflict with the Constitution. the outcome of the case hinged on a technicality, Mr. Brady lost the case because of some technicality about the way the case was presented. I am simply putting down the amendment to raise this point and to suggest to the Minister that discussion should take place with the Attorney General's Office or whoever is the appropriate person in relation to these matters. Beyond that possibility, I am not particularly bothered as to whether the time is restricted to two months or one year, but there is a geat deal of merit in keeping the time reasonably short.
I assume that last point as to whether there is any constitutional difficulty with the period will be cleared up quickly. Assuming that, I fully support Senators O'Toole and Naughten. The less delay we have in all these matters the better. At any rate, there will be a built-in dimension of delay. I am happy with the subsection as it stands. Having argued all along for a strong and independent agency, leaving those matters to the absolute discretion of the agency is acceptable.
These amendments are unacceptable. First, I will clarify the matter in relation to the Brady case. Senator Upton is correct but that case is on appeal to the Supreme Court which has not yet adjudicated in the matter. If it does, the requirement in the planning legislation will have to be changed if it is found to be unconstitutional. We have to await the decision of the Supreme Court before we can decide in relation to that.
I accept that Senator Upton is reasonable in the way he put down his amendments but the principle behind them is unacceptable. This amendment would require the agency to have an oral hearing for everything that requires an EIS even where there was no opposition to the development. That would be a total waste of time and would place an unnecessary burden on the agency.
Before the agency make a decision there will be maximum consultation with any objector, but I think it appropriate that when the agency make the decision, that should be the end of it. Many people in private sector industry believe it is far too strict that there is no third party appeal for them. We can only have so many bodies. We have a very complicated and lengthy planning system. It is probably the most complicated and lengthy procedures anywhere in Europe. It concerns many people involved in industry and development that it takes so long. There have been recent examples of industrial development being lost simply because foreign industrialists would not hang around waiting for decisions. Our planning system can take up to 12 months. It would be wrong of us to place the burden of a further year after a decision was made to allow somebody to take legal proceedings. Many developers would not wait around, they would be gone. We cannot afford, and we do not need that length of time in order to make the appropriate decision. Why would a person need four, six, ten or 12 months to decide to take legal action? That would lead to a great deal of uncertainty in regard to industrial development and would jeopardise in particular, foreign investment. Our complicated and lengthy system already places huge burdens in the way of development and to add further delays would be wrong. It is important that the right decisions are made by the right people, that the correct expertise is applied and that the highest possible standards are imposed and enforced. The length of time involved does not affect that and I believe time provided for in the Bill is reasonable.
Many people say that the length of time it takes to make decisions at present is far too long and that we need to shorten rather than lengthen the time allowed. In all the circumstances these amendments are undesirable and unnecessary. I envisage that the agency will hold oral hearings for all major developments, but to compel them to hold an oral hearing where there is no objection but simply because an EIS is required, is unnecessary. That would be time wasting, expensive and would put a burden on the agency that they could do without.
I do not know if I am in order but I would like to welcome members of the Defence Forces to the Public Gallery. It is nice to see that our Army are participating in the legislative process.
Acting Chairman
The Senator is in order.
Are they from the Senator's local election constituency?
I feared when they came in first that we might be faced with a coup d'état but unfortunately that does not seem to be the case.
Obviously, they are all from the Kildare constituency.
They are all postal voters. In relation to amendment No. 278 I believe we have lost opportunities in the past to attract environmentally friendly industries to the country because of the length of time involved in making a decision. The point was made earlier that what companies want are decisions whether they be favourable or unfavourable. They do not want to spend a year or more pussyfooting about while somebody decides that they may or may not establish here. That has been a serious factor in the past in relation to us losing industries. It is in order to suggest that proceedings should be instituted — we are not saying concluded — within a two month period and that seems to be a perfectly reasonable time frame. Many things can be done in two months and certainly to institute proceedings should not take any longer than two months.
Amendment, by leave, withdrawn.
Acting Chairman
Amendments Nos. 277 and 281 are related and may be discussed together.
I move amendment No. 277:
In page 59, subsection (6), between lines 31 and 32, to insert the following new paragraph:
"(b) Where an objection has been lodged with An Bord Pleanála in respect of a premises, facility or structure in which it is proposed to undertake an activity or part of an activity for which a licence is sought under this Part, the Agency shall have the absolute discretion to either——
(i) arrange to have a joint hearing under the aegis of both the Agency and An Bord Pleanála, or
(ii) have the objection considered as an integral part of the Bord Pleanála hearing.".
This is the most serious amendment I have put down and it ties in with what we have just been discussing. At present, a proposal by an industrialist to set up an industry could be delayed for five years or more under the processes available to appealers. I am trying to find a balance between the rights of people to object to proposals and the need for people to have a method of objecting and, also, the need to have a process in which people can articulate their objections to proposals. I want to balance that with the need to protect the environment and limit any damage that might be done to it. I also want to put that in context with the need for job creation and to attack problems, like unemployment, emigration and so on. We need to find a balance between all those.
The Minister said in her last contribution that the planning process can delay matters for up to one year, and that is just at the first stage. Obviously, it can delay things far beyond that at local authority level, An Bord Pleanála level and, indeed, it can then at the courts. There are three stages of appeal in that alone. People can use every means available to them to object. They can go to a smart lawyer who, having read the legislation, can indicate a number of things they can do; they can exhaust the local authority system, they can exhaust the An Bord Pleanála appeal, they can go to the courts if they find a point of law on which to object and then they can object to the granting of a licence under the Environmental Protection Agency Bill.
I have discussed this with members of the Irish Congress of Trade Unions, with industrialists and with people involved in the creation of employment. They believe that allowing the process in the Bill to go through — much as I support the idea of having an oral hearing — could create a delay of up to five years or, perhaps, even longer. It could go on and on. Appeals could be made at local authority level, have a full oral hearing at An Bord Pleanála level before lodging an appeal with the agency. I am not saying that they could always be dealt with chronologically, one after the other, I recognise that there would be an overlap. I am talking about the absolute limit and the fact that people will have recourse to law. I have not even considered the use of injunctions, either mandamus injunctions or others, in order to slow down the process.
Senator Murphy's amendment has a similar objective. Let people have their appeal under An Bord Pleanála and under the agency but let us make both appeals take place together. I spent much time trying to get an amendment that would cover all the possibilities. I said earlier that there should be a joint hearing under the aegis of both the agency and the board but, having read the legislation, I am not sure whether, under An Bord Pleanála legislation, that will be possible. That legislation might need to be amended in order to encompass a joint hearing or else have the objection considered as an integral part of An Bord Pleanála hearing. I do not believe there is a difficulty with that. I am sure the legalistic minds have looked through this but I find no problem with it. The objections that might be raised under the terms of the Environmental Protection Agency licensing could be considered as an integral part of An Bord Pleanála hearing.
There are many precedents for this. I am not saying that my amendment is precisely what is involved in other countries but what happens in the UK, and in some continental countries, is something close to what I am proposing. I do not want to present myself as being a drafts-person or a lawyer and there may be difficulties with this. The essence of my proposal is to let people have the right to appeal against the licensing, let people have the right to appeal to An Bord Pleanála against planning permission but let, for God's sake, both of them be heard together. In that way people will have have their day or days in court, can exhaust all the systems of appeal and we will not be slowing down the process of economic development. At the same time we will be protecting the environment and creating employment opportunities.
I share the concern of Senators O'Toole and Murphy and I accept the spirit of their amendments. I hope to come back to this issue on Report Stage. We are examining how we can make the planning system and the integrated licensing system work hand in hand and the suggestion made by Senators O'Toole and Murphy in relation to oral hearings and so on is one such way of how they can work together. I will be coming back on Report Stage with amendments.
Is the Minister saying that she hopes to come back on Report Stage with a change in this section which would allow appeals to take place at the same time?
If it is legally possible, we will.
I cannot ask for any more than that. That is a major move by the Minister and it will be welcomed by people on all sides because everybody will gain from it.
I support the spirit of both amendments. It would be a tragedy if, for example, two oral hearings had to take place on a particular application. It is vitally important that we do not make the process any more time consuming for industry to get planning permission and a licence. We must try to work the two hand in hand. To do anything else would add further to the frustration of industry in getting planning permission, air pollution licences and so on. We recognise the importance of ensuring that whatever industry sets up here is a clean industry that will not damage our environment. Nevertheless, we must have a system that will function. For example, as Senator O'Toole rightly said, one can first go through a local authority for planning permission and on to An Bord Pleanála and, perhaps, then start the whole process over again under this legislation. I welcome what the Minister has said. One of the most important aspects of this bill is to ensure that an industry having applied for planning permission, an air pollution licence and so on, are not three years later still tied up in a legal mess. That would be undesirable and detrimental to the development of this country. I appeal to the Minister to see what can be done to dovetail the two.
Since amendment No. 281 is in my name I want to say that I endorse everything that has been said by Senators O'Toole and Naughten. I am very happy that the Minister has responded in the way she has. She knows better than the rest of us that this is an issue of central concern to all those who will be affected by this Bill. There is no other topic on which so many different parties agree — the local authorities, developers and, indeed, environmentalists — on the need to streamline and dovetail what would otherwise be a very disturbing and lengthy process. I am very happy that the Minister has responded in this way.
I would like to add my voice in support. I am very glad the Minister has accepted the principle of the amendments because it seems to me that what they do is make the entire process more efficient and reduce a very cumbrous process of duplication. As Senators Murphy and O'Toole have said, there is a very wide measure of agreement indeed on this among local government, trade unions and conservation bodies. I received so much material about this that I found myself at one stage thorougly confused. One submission included such a complicated diagram of what would happen if this measure were not agreed that I am almost dizzy by it. The Minister is being very helpful in accepting the principle of the amendment and I look forward to the production of her own amendment which she indicated she will produce on Report Stage.
Acting Chairman
Is amendment No. 277 being pressed?
No. I would again like to put on record that I believe this change is a most fundamental one and it makes the month's work worthwhile. I spent at least one full night trying to put that amendment together. I am pleased not to be pressing it and I am delighted that the Minister has accepted the principle of the amendment. Those people involved in job creation for the large numbers of unemployed as well as environmentalists who have a caring attitude towards our society, will welcome the Minister's view, which is most significant.
Amendment, by leave, withdrawn.
Sitting suspended at 1 p.m. and resumed at 2 p.m.
Amendment No. 278 not moved.
Section 82, as amended, agreed to.
SECTION 83.
Amendments Nos. 278a and 279 not moved.
Acting Chairman
Amendments Nos. 280 and 282 are related and may be discussed together.
I move amendment No. 280:
In page 60, subsection (4), line 15, to delete "may" and substitute "shall".
I move this amendment on behalf of Senator Brendan Ryan. I would appreciate a response from the Minister.
The purpose of the Minister's discretionary powers to make regulations under sections 83 and 84 is to enable the detailed administrative procedures and related matters to be set out to give practical effect to the general framework of the integrated licensing system as provided in section 83 in the rest of Part IV of the Bill. Such detailed procedures are necessary but it would not be practical to include them in the framework-type Bill we have before us. In the absence of such detailed procedures it would not be possible to operate the licensing system and I have therefore no doubt but that regulations will be made before this Part can have full effect. This, I presume, was a primary concern of the Senator in putting forward these amendments.
Amendment, by leave, withdrawn.
Amendment No. 281 not moved.
Section 83 agreed to.
SECTION 84.
Amendments Nos. 281a and 282 not moved.
Government amendment No. 283:
In page 60, subsection (2) (h), line 41, to delete "eight weeks" and substitute "two months".
This is a drafting point to ensure consistency with terminology used in section 82 (3). "Month" means a calendar month and in all cases except the month of February will be two to three days longer than eight weeks. Month is the standard terminology for legislation of this type.
Amendment agreed to.
Section 84, as amended, agreed to.
SECTION 85.
Amendment No. 283a not moved.
Government amendment No. 284:
In page 61, subsection (1), lines 42 to 44, to delete "was granted or, as the case may be, the date of the decision under subsection (2) resulting from the latest review of the licence." and substitute "or revised licence was granted."
This is purely a drafting amendment to simplify the wording taking account also of the changes made as a result of amendment Nos. 256 and 285 which have already been dealt with. There is no change in the context of the subsection.
Amendment agreed to.
Government amendment No. 285:
In page 61, subsection (2), line 46, to delete "decide to".
Amendment agreed to.
Amendment No. 286 not moved.
I move amendment No. 287:
In page 62, subsection (3) (a), line 2, to delete "serious" and substitute "significant".
Amendment agreed to.
Government amendment No. 288:
In page 62, subsection (4), lines 17 to 20, to delete paragraph (a).
Amendment agreed to.
Government amendment No. 289:
In page 62, subsection (4), line 43, to delete "guidelines are issued,".
The reference in the Bill as it stands to guidelines is incorrect. No provision for guidelines as distinct from regulations, orders or directions has been made in the context of licensing under this Part.
Amendment agreed to.
Section 85, as amended, agreed to.
SECTION 86.
Amendment No. 289a not moved.
Section 86 agreed to.
SECTION 87.
Amendments Nos. 289b and 290 not moved.
Section 87 agreed to.
SECTION 88.
Amendment No. 290a not moved.
Section 88 agreed to.
SECTION 89.
Amendment No. 290b not moved.
Section 89 agreed to.
SECTION 90.
Amendment No. 290c not moved.
Acting Chairman
Amendments Nos. 291 and 292 are related and may be discussed together.
I move amendment No. 291:
In page 64, subsection (1), lines 46 to 47, to delete ", subject to the consent of the Minister for Finance and the Minister for Industry and Commerce,".
This is an important section because we are talking about charges in relation to emissions and the question of the "polluter pays" principle comes up again. There is provision in the section for emission charges but it seems to me that it is seriously undermined by specifying that the Minister for Finance and Minister for Industry and Commerce will be joined with the Minister for the Environment in making these charges. The regulations made by the Minister depend on the consent of the Minister for Finance and Minister for Industry and Commerce and that seems to be a serious restriction not simply on Ministerial action but on the agency's independence. The Environmental Protection Agency's power is very much controlled in this respect if no for other reason than the Minister for Industry and Commerce will be representing business interests who are opposed to pollution charges. I suggest that in order to restore the autonomy of the Minister and of the agency here that the words "in accordance" down to "commerce" be deleted; otherwise the section can have very little effect in enforcing charges in relation to such emissions.
I subscribe to the principle that the polluter should pay. This provision in the Bill is being introduced to allow for the possibility of introducing environmental taxes which we do not have in this country and I accept that in time they will be necessary but unfortunately I am not in a position to give way on this amendment. It is a serious step and a real change in the way we approach environmental matters and would effect the competitive position of Irish companies and so on. While I think it is necessary it would have to be a matter of Government policy. It is appropriate that the Minister for Industry and Commerce and the Minister for Finance would be consulted in relation to fiscal measures of that kind. It would be the introduction into Irish law of fiscal measures to deal with environmental pollution problems. It is only a question of time before it happens but I am not in a position to give way to these amendments at the moment.
Before this very desirable day comes along does the Minister accept that this section is a nullity largely because of the unlikeliness that the agency can make any real charges without the consent of these two Ministers?
It does not necessarily follow that the consent will not be forthcoming. I would not be as negative as that. A Minister charged with responsibilities in relation to industry would want to ensure that impositions on Irish industry were fair as far as industrial policy was concerned and it is desirable that that Minister would be consulted in relation to something which would have a major impact on industrial policy. It may require restructuring of the existing tax regime. Instead of taking a bigger share of tax from the particular company the tax would perhaps be imposed on a different basis, so it would have quite far-reaching implications for fiscal measures generally and for taxation policy in particular. It is a matter that has to be considered in the wider context of taxation and industrial policy. It may well be the case that in grant aid given by the Industrial Development Authority or in the way corporate taxes are collected they would be heavily weighted against those companies which were sources of pollution, so it has wider implications than its immediate effect on environmental matters. It is necessary in the event of changing our attitude towards taxation or fiscal measures that wider consultation than the involvement of a Minister for the Environment is required. It is not like charges or fees for licences, which is a separate matter. This is effectively the imposition of a pollution or environment tax.
I put down amendment No. 292, which is being discussed with amendment No. 291, for the reason the Minister has outlined. There is an opportunity here for a Minister at some later stage to introduce an environmental tax. The Bill as it stands says: "The Minister may make regulations providing for the payment to the Agency or such other public authorities or other bodies as may be specified of fees in relation to" a number of different items, and I believe that should only be done with the approval of both Houses of the Oireachtas. It is only right and proper that the elected members of parliament would be aware and would have a say in what fees should be charged. Senator Murphy refers to the input of the Minister for Industry and Commerce and I can see how that can work both ways in so far as the Minister for Industry and Commerce may be more concerned with the level of fees than the Minister for the Environment or the Minister for Finance. It is important that we do not stifle industrial development; we must encourage it and I see an opportunity here for a Minister at some future date to introduce an environmental tax without consultation with both Houses of the Oireachtas. I think it is only right and proper that both Houses of the Oireachtas should be consulted on matters such as this that is the reason I submitted amendment No. 292.
Effectively, Senator Naughten would be asking for such taxes to be approved by the Houses of the Oireachtas. The imposition of such taxes may well form part of the Government's budgetary policy any year and in that sense would obviously have to be approved by the Oireachtas but certainly regulations made under this section would have to be laid before the House of the Oireachtas. This goes back to the debate about how we deal with regulations. I know the Senators are concerned that regulations are difficult to annul but that is a matter for the procedures of the House; it is not primarily a matter for the legislation.
We have relatively high taxes in certain areas. For example, motor tax is excessively high but is not levied in any environmental way. It is part of our fiscal approach to raising revenue that we impose high petrol tax, road tax and so on. Other countries raise revenue in a way that is structured more in relation to the environment, with lower taxes imposed on cars that are more fuel efficient and so on. We impose high taxes on things that cause pollution but not necessarily for environmental reasons. In future taxes, in so far as they relate to the environment, will possibly be restructured to give incentives to models or competitors that are environmentally friendly or benigh. Since this provision would be a major departure in relation to fiscal measures generally, and taxation policy in particular, it would have to be considered in a context wider than environmental.
Any Minister for the Environment would love the power to impose taxes on everyone who was a source of pollution but that sentiment would not perhaps be shared by a Government. Therefore, it is a matter that needs to be discussed between Ministers who have different responsibilities in relation to these issues. I will not accept Senator Naughten's amendment because effectively the 21 day procedure that allows for regulations to be annulled is appropriate here as it was in other parts of the Bill.
Amendment, by leave, withdrawn.
Section 90 agreed to.
SECTION 91.
Amendments Nos. 291a and 292 not moved.
Acting Chairman
Amendments Nos. 293, 294 and 295 are Government amendments. Amendment No. 294 is consequential on amendment No. 293 and amendment No. 295 is related and all may be discussed together.
Government amendment No. 293:
In page 65, lines 40 and 41, to delete "by an applicant".
As drafted subsection (2) prohibits the agency or other body concerned from deciding on an application where the agency or the body is not in receipt of the fee. Subsection (1) applies to a range of matters in addition to applications. For example, objections to proposed determination by the agency on applications for licences or appeals against decisions under any of the matters listed in subsection (1). It is important where fees are payable in these cases that a sanction exists for ensuring such fees are paid. The present text of subsection (2) only prohibits the agency from deciding on an application where the fee is not paid. This is inadquate. It is important, therefore, that subsection (2) be strengthened on the lines proposed to prevent any doubts as to whether the agency has to deal with a matter even though a statutory fee is not paid. The amendment prohibits the agency from dealing with any of the matters concerned until the relevant fee is paid.
Amendment agreed to.
Government amendment No. 294:
In page 65, line 41, to delete "any application, the application" and substitute "any application or matter, the application or matter".
Amendment agreed to.
Government amendment No. 295:
In page 65, subsection (2), line 42, after "decided" to insert "or otherwise dealt with, as may be appropriate,".
Amendment agreed to.
Section 91, as amended, agreed to.
SECTION 92.
Government amendment No. 296:
In page 66, subsection (1), line 18, to delete "Parts IV and V" and substitute "this Act".
Amendment agreed to.
Government amendment No. 297:
In page 66, subsection (1), line 19, after "concerned" to insert "as if it were an activity".
Amendment agreed to.
Acting Chairman
Amendments Nos. 298 and 299 are related and may be discussed together.
I move amendment No. 298:
In page 66, between lines 32 and 33, to insert the following new subsection:
"(3) The Minister shall, by order, require that any process, development, or operation not specified in the First Schedule, or any process, development, or operation specified in the First Schedule but below the threshold size, located in, or to be located in an area of Scientific Interest, or adjacent or contiguous to an Area of Scientific Interest, shall be licensable by the agency, subject to an Environmental Impact Assessment, in consultation with the Minister with responsibility for the Office of Public Works.".
I understand that further legislation in this area is being prepared and it would be premature to introduce such a blanket prohibition and make a negative impact on a listed area. The provisions of section 92 are adequate to meet the Senators' concern in that any process, development or operations not listed in the First Schedule may by order of the Minister be made licensible by the agency. One of the criteria listed under section 92 (2) is location and the quality of the environment in the area in which the process, development or operation will be carried out. In addition, there is already adequate provision for amending the activities listed in the First Schedule subject to the approval of both Houses of the Oireachtas.
Amendment, by leave, withdrawn.
Amendment No. 299 not moved.
Section 92, as amended, agreed to.
SECTION 93.
Amendments Nos. 299a and 300 not moved.
Section 93 agreed to.
SECTION 94.
Amendment No. 300a not moved.
Government amendment No. 301:
In page 67, lines 17 to 22, to delete subsection (3).
The provisions of subsection (3) duplicate those contained in section 80 (3) and are, therefore, unnecessary. Section 80 (3) prohibits the agency from granting a licence unless it is satisfied that any emissions from the activity will comply with or will not result in the contravention of any statutory environmental standards including regulations under the European Communities Act, 1977 or under any other enactment.
Amendment agreed to.
Amendment No. 302 not moved.
Government amendment No. 303:
In page 68, subsection (5), line 21, after "request" to insert "and shall have regard to any submission on the matter received from the sanitary authority".
The purpose of my amendment is to take on board much of the principles behind Senator Ryan's amendment No. 302. The amendment will give added weight to the sanitary authority's request for review of a licence involving an emission to its sewers particularly where the request is supported by a submission in relation to any of the matters listed in subsection (c). However, the agency must retain discretionary power to review the licence or not.
Amendment agreed to.
Section 94, as amended, agreed to.
SECTION 95.
Amendment No. 303a not moved.
Government amendment No. 304:
In page 68, subsection (1) (b), lines 25 and 26, to delete "Petroleum and Other Minerals Development Act, 1960," and substitute "Minerals Development Acts, 1940 to 1979,".
This is a technical amendment. The Minerals Development Acts, 1940 to 1979 is the proper collective citation for those Acts which includes the Petroleum and Other Minerals Development Act, 1960.
Amendment agreed to.
Section 95, as amended, agreed to.
SECTION 96.
Amendment No. 304a not moved.
Government amendment No. 305:
In page 69, between lines 37 and 38 to insert the following new subsection:
"(5) The day or the last of the days, as may be appropriate, on which all the documents and information referred to in subsection (4) are furnished to the Agency in accordance with that subsection by the local authority, sanitary authority or the Minister for the Marine, as the case may be, shall, in relation to an application for a licence or permit, be deemed to be the date of an application for a licence under this Part.".
The purpose of this subsection is to ensure that the agency will have the same amount of time to deal with an application for a licence transferred under the provisions of subsection (4) as it would have with an ordinary application for a licence. Section 82 (2) and (3) provide that the notification of the proposed determination of an application for a licence shall be given within two months of the date of the application. The effect of the new subsection (5) is to deem the date of the transfer of the documents concerned from the public authority to the agency as the date from which the two month period for consideration of the application is counted.
Amendment agreed to.
Government amendment No. 306:
In page 69, subsection (5), line 44 after "determined" to insert "or withdrawn".
The purpose of this amendment is to ensure that all the circumstances under which an appeal may come to an end are covered by this subsection. As drafted the subsection did not include the possibility of the withdrawal of an appeal.
Amendment agreed to.
Section 96, as amended, agreed to.
Section 97 to 99, inclusive, agreed to.
SECTION 100.
I move amendment No. 307:
In page 71, subsection (1), lines 14 and 15, to delete "may, at any time, and shall when requested by the Minister to do so," and substitute "shall".
We have debated at length the question of whether we should substitute "shall" for "may". I do not think that it be in the best interests of the agency or that it would be desirable to impose obligations on them. The Bill gives them discretion except when the Minister requests them to make recomendations. I think that is most satisfactory in the circumstances. The agency may feel that it is unnecessary, in certain circumstances, to give notice in relation to emissions, limit values and standards. I therefore would prefer to stick with the wording of the Bill.
Amendment, by leave, withdrawn.
Amendments Nos. 308 and 309 are cognate and may be discussed together.
Amendment No. 308 not moved.
I move amendment No. 309:
In page 71, subsection (2), line 26, to delete "consider any relevant" and substitute "have regard to any".
I am happy to accept the spirit of the amendment and, if it is in order, I will come back with an amendment on Report Stage.
Amendment, by leave, withdrawn.
Section 100 agreed to.
Section 101 agreed to.
SECTION 102.
Amendment No. 310 not moved.
Section 102 agreed to.
SECTION 103.
Amendments Nos. 311 and 312 not moved.
Section 103 agreed to.
SECTION 104.
Government amendment 313:
In page 75, subsection (5), line 10, to delete "expense" and substitute "costs and expenses".
This is a drafting point to ensure consistency with section 12 and that all costs and expenses incurred on foot of securing compliance with a notice, legal costs, expenses of witnesses, cost of materials etc. are recoverable.
Amendment agreed to.
Section 104, as amended, agreed to.
SECTION 105.
Amendments Nos. 314 to 317, inclusive, not moved.
Section 105 agreed to.
Section 106 agreed to.
SECTION 107.
I move amendment No. 318:
In page 76, subsection (1), line 19, to delete "may" and substitute "shall".
I am going to be accused of repeating myself. It goes without saying that the amendment relates to the compulsion to substitute "shall" for "may". I indicated earlier that we will look at this matter before Report Stage.
Amendment, by leave, withdrawn.
Amendments Nos. 318a and 318b not moved.
Section 107 agreed to.
SECTION 108.
I move amendment No. 319:
In page 78, subsection (2) (j), line 27, to delete subparagraph (i).
The grant of an execution under subsection (2) (j) to a specified class of person from any of the requirements of the regulations is not as sweeping as the Senators may think. The regulations will specify the circumstances in which exemptions may be given and the conditions which may be attached to such exemptions.
Amendment, by leave, withdrawn.
Section 108 agreed to.
SECTION 109.
Acting Chairman
Amendments Nos. 320, 321 and 323 are cognate and amendment Nos. 322, 324 and 325 are related; all six amendments may be discussed together.
Government amendment No. 320:
In page 79, subsection (1) lines 35 and 36, to delete "penalty or fine", and substitute "penalty, forfeiture or fine".
There is a twofold purpose to the six amendments, the first being to ensure that all the different types of penalties mentioned in this legislation, for example, penalties, forfeitures or fines, are included and, the second, to allow discretion to the courts to fix fines at the level appropriate to the offence. As the section and the table are drafted the courts would have no such discretion and this would not be in keeping with section 9 in relation to penalties under this Bill or the normal statutory provisions relating to offences. In many of the cases that would come before the courts the maximum fine of £1,000 would be seriously out of proportion with the gravity of the offence.
Amendment agreed to.
Government amendment No. 321:
In page 79, subsection (1) line 39, to delete "penalty or fine" and substitute "penalty, forfeiture or fine".
Amendment agreed to.
Government amendment No. 322:
In page 79, subsection (1) line 40, to delete "the penalty" and substitute "a fine not exceeding the maximum fine".
Amendment agreed to.
Government amendment No. 323:
In page 79, subsection (2) (a) line 43, to delete "penalty or fine" and substitute "penalty, forfeiture or fine".
Amendment agreed to.
Government amendment No. 324:
In page 79, subsection (2) line 47 and in page 80, lines 1 and 2, to delete paragraph (b) and substitute the following paragraph:
"(b) Where an offence referred to in subsection (1) is described as a continuing or further offence the penalty for each day on which the contravention continues shall, in lieu of any other monetary penalty, forfeiture or fine provided in respect thereof, be a fine not exceeding £200.".
Amendment agreed to.
Government amendment No. 325:
In page 80, between lines 5 and 6, in the heading to column (4) of the Table, to delete "Penalty" and substitute "Maximum Fine".
Amendment agreed to.
Section 109, as amended, agreed to.
FIRST SCHEDULE.
Amendments Nos. 326 and 327 not moved.
Government amendment No. 328:
In page 82, line 27, to delete "brewing, distilling and malting" and substitute "brewing and distilling, and malting".
The purpose of this amendment is to clarify that the threshold of 100,000 tonnes per year applies only to malting installations. There are at present no malting installations of this size in the country but the threshold is the same as that for the purpose of the environmental impact assessment procedure. If the threshold were to apply to the brewing area, for example, only one of the many such operations would be licensable by the agency.
I do not want to delay the House but the amount of malting barley produced in the country under contract for Guinness is about 125,000 tonnes. It is very difficult to see, in such circumstances, how there could be a distilling or malting installation of that size. Indeed, I do not think we are likely to have brewing or distilling installation of that size in the country.
That is true. We are keeping to the environmental impact assessment requirement because it is not an activity which causes pollution. That is the reason it is being excluded, apart from those where the production capacity exceeds 100,000 tonnes per year.
Amendment agreed to.
Amendment No. 329 not moved.
Government amendment No. 330:
In page 82, lines 41 and 42, to delete "involving the use of preservatives" and substitute", involving the use of preservatives,".
The purpose of this amendment is to clarify that the threshold of 10 tonnes per day refers to the volume of wood preserved and not the volume of preservatives used. The preservatives used are quite toxic and even small operations could give rise to serious problems.
Amendment agreed to.
Government amendment No. 331:
In page 83, line 15, to delete "municipal waste or".
As drafted, the incineration of all municipal waste, including the burning of domestic type rubbish in small incinerators in back gardens, offices and other commercial premises, would be controlled directly by the agency. Local authorities have adequate powers to deal with the smaller operations under the Air Pollution Act, 1987. The incineration of municipal waste in plants with a capacity exceeding one tonne per hour will be covered, by virtue of this amendment, by paragraph 11.3. Any municipal waste incineration plant established in the future would have to have a capacity greatly in excess of one tonne per hour to be economically viable.
Amendment agreed to.
I move amendment No. 332:
In page 83, between lines 32 and 33, to insert the following:
"13.5 The construction of airports or airfields."
Airports and airfields are once off developments and are not suited to any kind of licensing under the air or water pollution Acts. They do not pollute the air or water and do not need waste permits. The agency, will have a say in relation to the procedures specified in section 69 relating to the environmental impact assessment.
Amendment, by leave, withdrawn.
Question proposed: "That the First Schedule, as amended, be the First Schedule to the Bill".
Is it correct to say — I raised this point on Second Stage with the Minister — that a factory constructed to slaughter livestock, cattle or sheep, will be exempt under the provisions of this Bill if the numbers do not exceed 300 cattle or 1,500 sheep?
The discrepancy between cattle and sheep — I am no agricultural expert——
Is that the correct interpretation?
I have been advised that it relates to their capacity to generate waste.
I am referring to paragraph 7.4 on page 82 of the Bill.
They are all equivalent, in terms of their capacity to generate waste. We are talking here about their potential to cause pollution, not the numbers.
I thank the Minister for clarifying the matter because that was my interpretation. I am surprised that one will be able to construct a factory to slaughter 300 cattle or 1,500 sheep per day and that it will be exempt. In an ordinary working week, that works out at 7,500 sheep. That is a huge development, by any standards. I find it difficult to understand how such a development will be exempt while a 110 sow unit in the middle of the country will not. It is possible that such a development would be constructed adjacent to a town. We are all aware of the problems caused by factories throughout the length and breadth of this country where skins are left aside and emit a very offensive smell. Other livestock waste is often left lying in containers and not moved. I find it difficult to understand how a factory with a capacity to kill 1,500 cattle and 7,500 sheep per week will be exempt while a sow unit of 100 will not.
There is a misunderstanding about what they will be exempt from. They are not going to be licensed by the agency. This agency will only license the most serious activities in the country. In all, when the agency are fully operational they will be in charge of about 1,000 operations. Those activities to which the Senator referred will remain under the direct control of the local authorities who will be able to seek the advice, assistance and help of the agency. Unless we were going to give the agency full control and take it away from the local authorities, we had to draw the line somewhere, and we decided it should be where the environmental impact study line was also drawn in relation to these matters.
I have not made myself clear as the Minister appears to have missed my point. The point I am trying to make is that while a 101 sow unit will be covered by the provisions of the Bill a facility with a capacity to kill 7,500 sheep or 1,500 cattle per week will be exempt. I cannot comprehend how, on the one hand, a 101 sow unit will be covered while a factory where 7,500 sheep and 1,500 cattle are killed each week is not. The two contradict each other.
On the face of it, what the Senator is saying makes sense. I will consult my advisers again but I have been very strongly advised by those who know more about this matter than I do that it relates to their capacity to generate waste; in other words, 7,500 sheep have the same capacity to generate waste as the 1,500 cattle and consequently have the same impact on the environment.
It is in the disposal of the waste that environmental problems arise. I will further consult before Report Stage, if that is in order.
I would not disagree with the Minister on the figures, 7,500 sheep or 1,500 cattle because they are probably correct but there is no comparison between the amount of waste produced by a factory where 7,500 sheep are killed and that produced by a 100-sow unit. I find that difficult to understand.
Let me consult my advisers and come back on Report Stage.
I am open to correction but is that point not covered by the provisions of the Abattoirs Act?
Of course, it is covered by the provisions of the Abattoirs Act and the Planning Acts but what I am saying here is that sow units are also covered by the provisions of the Planning Acts. I cannot understand the reason a 100-sow unit will have to be licensed by the Environmental Protection Agency while a factory where 7,500 sheep are killed will not. The Minister has given an undertaking to have the matter examined and that is acceptable to me.
Question put and agreed to.
SECOND SCHEDULE.
I move amendment No. 333:
In page 84, after line 5, to insert the following:
"The Marine Institute Act 1991.
European Communities Classification, Packaging and Labelling of Pesticides Regulations 1985, 1987 and 1989.".
I have no information to suggest that either the Marine Institute Act or the European Communities Classification, Packaging and Labelling of Pesticides Regulations are not being satisfactorily discharged at present which would warrant their inclusion in the Second Schedule. The Schedule may of course be amended at any time in the future.
Amendment, by leave, withdrawn.
Second Schedule agreed to.
Title agreed to.
Bill reported with amendments.
When is it proposed to take Report Stage?
In about three weeks time.
I thank the Minister for the way she dealt with amendments to the Bill. She showed tremendous patience and should be complimented.
I join with Senator Foley in expressing appreciation of the Minister's endurance. She listened patiently to the debate during the past few days. I would also like to compliment her for adopting a flexible attitude to the amendments. I have no doubt this debate has improved the Bill significantly.
I join with previous speakers in complimenting the Minister for her flexible approach to the Bill. We have had marathon discussion and many of the points raised will be taken on board on Report Stage. I have no doubt that all the points raised will strengthen the Bill and will ensure, when the Bill is in place, that we will have a better environment and at the same time allow industrial development to take place.
I join with the other groups in thanking the Minister for showing patience and energy and compliment her on her achievement. We look forward to a successful conclusion of Report Stage as soon as possible.
I thank the Senators for their kind remarks. I enjoyed the debate; indeed, it was an outstanding debate. The Government and I appreciate very much the co-operation of all sides in ensuring that this legislation is taken seriously. This shows the Government have great support in establishing the Environmental Protection Agency. This House deserves credit for the manner in which it has dealt with this debate. I thank Senators for adopting a serious approach on Committee Stage. I also appreciate the kindness of many Senators from all sides who sat here patiently and endured me. Perhaps I could have been more speedy at times but at the end of the day we managed to reach agreement on many matters which I have no doubt will improve the Bill. It is important that this agency receives the support of all sides of the House and the community at large.
Report Stage ordered for Friday, 31 May 1991.
Acting Chairman
When is it proposed to sit again?
Next Wednesday, 15 May 1991, at 2.30 p.m.