There are some issues in relation to paragraph (f) of section 36 which I would like the Minister to explain.
Waste Management Bill, 1995: Committee Stage (Resumed).
Section 35 agreed to.
SECTION 36.
Question proposed: "That section 36 stand part of the Bill."
Section 36 authorises the Minister to make regulations providing for the supervision and control by the Environmental Protection Agency and local authorities of the movement of waste within, into and out of the State. Is there any particular issue on which the Senator would like me to expand?
Can the Minister prevent certain hazardous waste from being imported? Is paragraph (f) which deals with the matter sufficiently effective to ensure the prohibition of the importation of hazardous waste?
Subsection (1) authorises the Minister, for the purpose of preventing environmental pollution, to make regulations providing for the control of any such substances in shipments, as may be determined by the Minister.
This is a very important subsection. Does the Minister have any information on current importation of hazardous waste? Is it a fact that some hazardous waste has already been imported? Does he have responsibility in that regard or is it the responsibility of another authority?
Council regulation EC/259/93 made on 1 January 1993, and the associated European Communities Transfrontier Shipment of Waste Regulations, 1994, provide for a system of prior notification and authorisation in relation to waste exports and imports, including consignments in transit through the State. The framework is in place which requires prior notification and permission or authorisation. The powers exist to deny such authorisation if the circumstances so warrant.
I am trying to get some indication of the amount of transactions and quantities involved in this. Does the Minister have any information, which he could supply to us later if he does not have it now, on the authorisation procedures currently in operation and to what extent the authorisations are being utilised?
The authorisations under the regulation I quoted are minimal, but I will give details to the Senator in writing.
Question put and agreed to.
Section 37 agreed to.
SECTION 38.
The lead in to amendment No. 12 should read "subsection (2)". Amendment No. 16 is related to amendment No. 12 and both may be discussed together. In amendment No. 16, there should not be a comma after the word "section" in line 2 of subsection (10) (a), and the word "purpose" in the last line of paragraph (b) should read "purposes".
Government amendment No. 12:
In page 53, subsection (1), to delete the words from and including "in accordance" in line 8 down to and including "deposited" in line 11.
The purpose of these amendments is to insert a new subsection (10) in section 38 of the Bill as laid before the House to enable a local authority to specify conditions which shall apply to the discarding or deposit of waste at facilities provided by local authorities. Amendment No. 16 proposes to insert a new subsection (10) in section 38, and amendment No. 12 is a consequential amendment to section 38 (2) (a). The net effect of these amendments is to provide for proper control of the deposit or discarding of waste by the public at all waste management facilities provided by local authorities. I am happy to expand on the section if Deputies wish me to.
Amendment agreed to.
Amendments Nos. 14 and 15 are consequential on amendment No. 13 and all may be discussed together.
Government amendment No. 13:
In page 53, between lines 16 and 17, to insert the following new subsection:
"(3) Without prejudice to the provisions of subsection (2), a local authority, having made an examination of the matter, shall provide, or arrange for the provision of, such facility or facilities as appears or appear to it to be necessary and reasonable at which vehicles may be discarded.".
Amendment No. 13 proposes to re-enact section 9 (1) of the Litter Act, 1982, which has been repealed. The amendment would insert a new subsection (3) to require a local authority to provide or arrange for the provision of such facilities as appear to be necessary and reasonable at which vehicles may be discarded. It is my intention to have a comprehensive Litter Bill before the House as soon as possible. I am re-enacting in this amendment the requirement that local authorities would provide for the disposal of vehicles. Discarded, rotting and rusting vehicles are a hazard in many areas.
I welcome the amendment and compliment the Minister on tabling it. However, it raises the question of this piecemeal approach to the legislation. The Minister indicated earlier that he intends to bring forward a comprehensive Litter Bill. While this is welcome, it tends to confuse matters — we have repeals of the Litter Act, amendments to the Litter Act and a proposed new Litter Bill. As I stated on Second Stage, it is necessary to consolidate and coordinate the legislation in this area to improve our approach to the fight against pollution.
I intend to put all the requirements of litter control in one new Bill, but I wanted to put the requirements for waste disposal in this legislation. The disposal of cars is a waste problem which is proper to this Bill and the new Litter Bill will deal with litter prevention and control exclusively.
Amendment agreed to.
Government amendment No. 14:
In page 53, subsection (3), line 17, to delete "(1) and (2)" and substitute "(1), (2) and (3)".
Amendment agreed to.
Government amendment No. 15:
In page 54, subsection (8), lines 1 and 2, after "paragraph (b) (iii)," to insert "and subsection (3),".
Amendment agreed to.
Government amendment No. 16:
In page 54, between lines 5 and 6, to insert the following new subsection:
"(10) (a) A person shall not deposit or discard waste at a facility provided by a local authority under this section, otherwise than in accordance with any conditions for the time being standing specified by the local authority as respects the nature, type and quantity of waste that may be so deposited or discarded or the use otherwise of such a facility.
(b) A local authority shall take such steps as are reasonable to bring to the notice of members of the public any conditions for the time being standing specified by it for the purpose of paragraph (a).
(c) A person who contravenes paragraph (a) shall be guilty of an offence.
(d) Subject to paragraph (e), waste deposited or discarded at a facility provided by a local authority under this section shall become the property of the authority.
(e) Without prejudice to paragraph (c), where a person deposits or discards waste in contravention of paragraph (a)—
(i) the waste shall not become the property of the local authority concerned unless it decides to assume ownership of the waste,
(ii) any expenses incurred by the local authority concerned in recovering or disposing, or arranging for the recovery or disposal, of the waste shall be recoverable by it from the person as a simple contract debt in any court of competent jurisdiction.".
Amendment agreed to.
Section 38, as amended, agreed to.
Section 39 agreed to.
SECTION 40.
Government amendment No. 17:
In page 58, subsection (9), line 42, to delete "who" and substitute "whom".
This is a grammatical correction.
Amendment agreed to.
Section 40, as amended, agreed to.
Sections 41 to 45, inclusive, agreed to.
SECTION 46.
Question proposed: "That section 46 stand part of the Bill."
The Bill provides for holding oral hearings. When we discussed the preparation of the waste management and hazardous waste plans it was my view and that of a number of Members that it was necessary to put a mechanism in place whereby oral hearings, similar to those the Minister has set out for licences, could be held. Sections 40 to 50 deal with licences but there is a question about how the issue of oral hearings will be dealt with. Perhaps the Minister would elaborate on what he is proposing. I had expected it would be a mechanism that could be used, during the preparation of waste management plans, to give local communities the opportunity to raise and discuss valid objections.
The decision to hold an oral hearing on an application is at the discretion of the agency. The agency will determine whether the specifics of the case require an oral hearing and may determine that one be held.
My difficulty is that while the Minister has provided an elaborate procedure for oral hearings — I compliment him on that — there does not appear to be a mechanism for the publication of the outcome. While people might be aware that there has been an oral hearing, they will not be aware of the outcome.
I thank Senator Daly for recognising the elaborate and open procedure in the Bill. With regard to the publication of findings, I am committed to open access to information on the environment. I have made provision for publication and access to information in a number of areas already, for example, the inspector's report in planning appeals to An Bord Pleanála and previous assessments by the agency. I do not envisage any difficulty in providing, by regulation, for access to the information suggested by the Senator. I might be able to make a more detailed comment on the matter on Report Stage.
Question put and agreed to.
Sections 47 to 49, inclusive, agreed to.
SECTION 50.
Question proposed: "That section 50 stand part of the Bill."
In previous debates on this legislation there was criticism of the absence of specific provisions relating to farm pollution and control of the disposal of farm wastes, especially in the vicinity of important tributaries and lakes. The Minister drew attention to other legislation which covers this area. Since the initial debate this section has been substantially discussed if not strengthened. Will the Minister indicate whether he is satisfied that these provisions are adequate to deal with farm pollution and to meet growing concern about that issue?
I commented on this in some detail when the Bill was before the other House and, on Second Stage in the Seanad, I pointed out that one area not covered was farm pollution. Government amendment No. 22 provides for that and we will have an opportunity to debate the merits and demerits of that amendment. I am anxious that the scope of the Bill would be broadened to include the possible sources of pollution the Senator has identified.
Question put and agreed to.
SECTION 51.
Question proposed: "That section 51 stand part of the Bill."
I seek as much information as possible from the Minister. Can he clarify subsection 2 (a) (i) which refers to "sludge from a facility operated by a local authority for the treatment of water or waste water". The section provides: "The provisions of this section shall apply notwithstanding the provisions of any bye-law made under section section 21 of the Local Government (Water Pollution) (Amendment) Act, 1990". Subsection (2) also refers to:
(ii) blood of animal or poultry origin,
(iii) faecal matter of animal or poultry origin in the form of manure or slurry, or
(iv) such natural agricultural waste as may be prescribed.
We have long awaited EU regulations governing landfill sites and the organisation and control of such sites. We are also awaiting BATNEEC guidelines from the Environmental Protection Agency on the control of pig slurry. I am disappointed that the Environmental Protection Agency does not have guidelines on the control of landfill sites. However, I am seeking clarification on what the section refers to and why a waste licence is not required for the activities I have quoted.
This section exempts the recovery by the agency of specified natural agricultural wastes, sewage and water treatment sludges from licensing under Part 5 of the Bill and provides for alternative regulatory controls on those activities.
The disposal of agricultural waste is subject to the provisions of section 39, in the same manner as any other type of waste. The spreading of natural agricultural waste and sludges for soil enrichment purposes is a long established and widespread practice which, when carried out under proper conditions, can be beneficial. It would not be practicable or appropriate to require that such waste recovery activities should be subject to licence. The section instead makes provision for alternate regulatory control of the recovery of the waste specified to be exercised by local authorities. It is up to each local authority to set its own standards for the monitoring and overview of the land spreading of agricultural wastes, which is the usual means of disposal of such wastes.
I thought long and hard about this proposal because I would not like to exempt any potential pollution. However, it would be overly onerous to require every landowner who wants to spread manure or sludge to have a licence to be processed by the agency. The controls I have envisaged and outlined are more practicable and will be equally effective.
The Minister mentioned sludge and other forms of waste but did not refer to slurry, the spreading of which is lethal. I stand corrected if there is an obligation to comply with regulations. Who issues the licence? If the local authority does so, what power does it have to enforce any conditions in the licence? Local authorities have major problems with regard to manpower. Having raised the matter locally, I was advised by people from other counties that they also have major problems in this regard. What regulation exists to enforce compliance with the conditions attached to any grant of permission to ensure that slurry is spread at the right time and in the right place?
Is the Department carrying out research on how to organise better ways of dealing with sludge from local authority facilities? What is the long-term view on this and when will we be in a position not to use waterways around the coast to get rid of sludge?
To follow on from Senator Sherlock's point, is the Department involved in any investigations, research or consultations with other EU countries using technology which may be helpful in spreading slurry? In Finland a peat component is used. It acts as a binding agent and has a desirable effect with regard to smell. Most objections in this country refer to these two issues, particularly in areas where there are small water courses and what people consider to be marginal land which is not suitable for spreading slurry. If there is advanced technology in this area which other EU countries have developed, we should avail of it and use it here.
A number of issues have arisen with regard to the disposal of agricultural wastes and sewage sludge. I indicated that it would be overly onerous to require the detailed licensing provisions of this Bill with regard to waste to apply to each landowner. It is better to deal with this on a county basis by requiring local authorities to monitor licences and regulate such spreading. It would be open to local authorities to take action against those who do not comply with such licensing.
Spreading is controlled because the most serious pollution could affect water courses. Under the water pollution Acts there is a clear responsibility on any controller, owner or possessor of such waste to prohibit it from entering water courses. A person who causes or permits any polluting matter to enter water without a licence is subject to court proceedings and may be liable not only to a fine but be required to remediate any damage caused under sections 10 and 11 of the Local Government (Water Pollution) Act.
The 1991 EC regulations on the use of sludge in agriculture specify detailed requirements with regard to the spreading of sewage sludge on agricultural land. We are phasing out the dumping of sludge at sea, as required by EU law. It must be phased out entirely by 1999 and we will certainly meet the criterion for this. The biggest issue which will arise at that stage will be the treatment of Dublin sludge.
We are discussing how to find best practice not only domestically but with our EU colleagues. If good practices are used elsewhere in Europe we want to hear about them and use them. With regard to slurry treatment, we should not be shy about our advances in research. The agricultural institute, which preceded Teagasc, in its headquarters in Johnstown Castle, carried out extensive internationally recognised research on slurry management.
The use of peat might have potential. We are looking at alternatives in sewage treatment and have piloted a number of reed bed tertiary treatment plants in order to use natural mechanisms for the absorption of toxic materials and this might have application to slurry and other potentially hazardous wastes.
Is waste arising from mining covered under this section? The Minister will be aware that in a number of areas there has been public criticism of mining operations where substantial deposits were left in a haphazard way. Little could be done at local authority level to deal with this and the responsibility to do so was not clearly defined. Will the Minister clarify the situation with regard to mining deposits?
Once this measure is enacted, all mining activities will have to be licensed. Some major activities are already licensable under the schedules to the Environmental Protection Agency Act, 1992. Any residual activities which are not licensable under that Act come under the scope of this Bill.
With regard to Senator Daly's point, mining was included in the 1992 Act. The extraction of peat is of great concern throughout the country but during the debate on the 1992 Act discussion of it was excluded. The Minister and the House will be aware of the concerns raised about the large deposits of peat on the beds of big rivers, particularly in the catchment areas of the Shannon and its tributaries. Peat is now considered to be a contributory factor to the serious flooding we have experienced. Some 50,000 acres of bog are being drained into these catchment areas. To the best of our knowledge, the system of blocking silt from entering the river is not effective or foolproof. It is contributing to the damage to rivers and it may have the long term effect of causing flooding.
While none us wants to interfere with a large commercial State body which provides employment and development, we have a responsibility for the extraction of peat which causes pollution in our rivers, particularly the Shannon. Controls should be introduced. Does this Bill include controls for the extraction of peat?
This legislation is not designed as an anti-pollution measure. A body of law exists to protect air and water. If peat is polluting water, that is covered under the existing Water Pollution Acts and not under this Bill which deals with solid waste management.
As regards mining, there are provisions in this Bill which will strengthen the Environmental Protection Agency Act, 1992, to ensure that a developer will have sufficient bonding and financial backing to cover any source of pollution or subsequent pollution which might arise. This means that local authorities will not be left high and dry by a company which causes pollution and then goes out of business. This further strengthens the framework already in place.
Question put and agreed to.
SECTION 52.
Government amendment No. 18:
In page 75, line 30, to delete "was" and substitute "were".
Amendment agreed to.
Section 52, as amended, agreed to.
Section 53 agreed to.
SECTION 54.
Question proposed: "That section 54 stand part of the Bill."
Section 54 (3) (b) (ii) is confusing. Perhaps the Minister could tell us what he is trying to achieve.
One of the core principles of the Bill is to establish an agency of environmental excellence which is competent to evaluate the environmental impact of any activity. An Bord Pleanála is not in a position to make such a determination but it had to consider many complicated environmental issues without that expertise. This is the next generation of proper environmental evaluation. Environmental considerations are proper to the new expert agency which will be designed, equipped and staffed with the expertise, training and equipment to evaluate and make a determination in relation to environmental matters so that An Bord Pleanála will only consider matters of good planning which fall within its competence and expertise. As activities and planning applications become more complex, it is right and proper that there is an expert planning agency designed to independently evaluate the environmental consequences of any planning application.
The Minister is aware of a particular case where a local authority is excluded from discussing matters under section 98 of the Environmental Protection Agency Act, 1992. The case to which I refer is Syntex's application for an incinerator. Under section 98 of the Environmental Protection Agency Act, 1992, Clare County Council is excluded from any discussion on the environmental risk from incineration. Members of the council believe they should have an opportunity to express an opinion. I am not here to discuss incineration but the application for a licence is with the Environmental Protection Agency. The county council has given planning permission for it. However, because of section 98 of the 1992 Act the council is excluded from considering the environmental risks involved. The local authority and its elected representatives are being denied the opportunity to express their views. I am sure other Members are familiar with the issue. Requests have been made seeking an amendment to the 1992 Act. We are reluctant to accept something without being satisfied it is necessary. Perhaps the Minister might clarify this point because the local authority and the public are confused.
There is a degree of confusion because these provisions are new. We have now set up an expert agency to consider all matters which we considered heretofore. That is the correct approach for the future because I do not believe An Bord Pleanála has the competence, from an environmental perspective, to deal with the variety of potential applications before it unless it and the Environmental Protection Agency merge. It is better to segregate these things as the applications become more complicated and our understanding of pollution becomes more refined. It is not designed to weaken the planning process but to strengthen it so that there are parallel evaluations of planning and environmental aspects. Planning permission is useless without an Environmental Protection Agency licence and an Environmental Protection Agency licence is useless without planning permission. Both processes would need to be gone through before any activity would be set up. If people are confused about it, it is because it is a new system. I believe it will be seen to be a much more strengthened and effective system once it is fully operational and understood.
Is it possible for a local authority to appeal to the Environmental Protection Agency or is the Department of the Environment the only body capable of doing so? Is the Environmental Protection Agency an independent body which is above reproach?
Has the Minister examined the possibility of making some changes to the Environmental Protection Agency Act, 1992, or is he saying he does not have any plans to change it?
I agree with the concept of the Environmental Protection Agency and I supported the Bill when it was introduced in 1992.
So did I.
If we want to set up an independent agency, we cannot put controls over it. If we do not have confidence in an independent agency to carry out its statutory function to determine best environmental practice, then we will have to look at it again. However, I would be loathe to allow my Department or local authorities to put controls over it. The idea of setting up an independent agency, An Bord Pleanála, was to divorce planning from the control of a Minister. The model of An Bord Pleanála was replicated in the establishment of the Environmental Protection Agency. Difficulties might arise from time to time, but creating a control mechanism would interfere with the independence of the Environmental Protection Agency and would cause more problems than it would solve.
A difficulty could arise where the Environmental Protection Agency would grant a licence to undertake a certain operation but the local authority may refuse planning permission for it. That could create problems unless some procedure is in place to allow a local authority to make a decision on the planning aspect before the licence issue is decided. Councillors, especially members of Clare County Council, raised publicly the fact that they have been denied involvement in the licence issue, although they are involved in planning. They do not have the opportunity to express a view on such serious matters.
This is the crunch of the issue. I was faced with this situation in relation to the incinerator in Ringsend. Fortunately, the planning authority refused permission and An Bord Pleanála upheld the decision of Dublin Corporation. There was considerable anxiety in the community that An Bord Pleanála would not uphold the decision of Dublin Corporation, that the licence would be granted by the Environmental Protection Agency, that there could not be an appeal, except through the oral hearing, and that the Environmental Protection Agency would be judge and jury in its own case. The public is concerned about this issue to which Senator Daly referred.
The provision of a parallel process strengthens rather than weakens the planning law. When all these matters fell to be considered in the first instance under the normal planning Act, the local authority made a determination and whether it was appealable. The decision of An Bord Pleanála in that case was final. We now have two parallel processes — the planning process and a parallel environmental analysis under the Environmental Protection Agency. For the cases cited to be built — I do not want to go into them — we need both because the planning application is no good if the Environmental Protection Agency refuses to license the activity. Similarly, the licence for the activity is no good without planning permission. Rather than being concerned about it, the parallel process, which is now the law, strengthens the evaluation of any project and its merits and demerits.
The planning aspect is well established as planning laws date back to the early 1960s. They are determined by local authorities and are appealable to An Bord Pleanála, while the parallel environmental analysis is applied through the Environmental Protection Agency system. Both must be granted before a development of the type indicated by Senators could be built and put into operation. I have no fears in that regard.
Section 54 (7) gives the Minister extensive powers to grant exemptions. Perhaps he will clarify if he has particular cases in mind?
It is a general exemption clause that will allow cases which may arise to be considered and to have a legal basis on which to grant an exemption. I have no particular case in mind.
Question put and agreed to.
SECTION 55.
Question proposed: "That section 55 stand part of the Bill."
Perhaps I am misinterpreting this but if a housing estate was built many years ago and the bond structure which would normally be in place and which would be levied on the builder fails to materialise, it would not be built in accordance with planning regulations. Therefore, residents in the estate could be polluting the environment by disposing of sewage in a manner not in accordance with this legislation. Does a local authority have the power to recoup the cost from these people?
This Bill does not relate to sewage but to solid waste — a point which I made several times during the debate. Sewage is dealt with under a different enactment. Section 55 gives a local authority power in its functional area to serve a notice on any person who holds, recovers or disposes of waste to prevent or limit environmental pollution arising from that waste activity. If people set themselves up as the holder, carrier or storer of waste, they would be subject to the determination by the local authority that they must take specific steps to ensure that no environmental pollution might arise from it. The case which the Senator instanced would not impact on this provision.
If an estate was not built in accordance with the planning regulations, as happened in the Cork Corporation and Cork County Council areas, and storm water——
This Bill has nothing to do with water.
I refer to cases where a local authority must undertake certain works and the procedure for the recovery of costs. The Minister will be aware that in many cases where there is such a breakdown, the companies concerned go into liquidation or receivership. How will such matters be dealt with? Will a local authority pay the costs?
The idea which underscores this Bill is that the polluter pays. As far as it is legally possible to get at the polluter, that legal remedy should be exhausted.
What happens if the company vanishes?
If there is no other option, a local authority must undertake a responsibility in such circumstances. As I said, the underlying principle should be not to let the polluter off in any circumstances in which he can be made to pay. Ultimately, if the company no longer exists and if individuals cannot be followed through the courts, presumably the local authority would take responsibility for at least a clean up.
I would avoid a situation where companies could go into liquidation to avoid their responsibilities. It might be desirable to have a provision to deal with that — for example, the power to sue directors of companies. A wealthy company with a small operation or a subsidiary company may go into liquidation after causing damage worth £50,000 to £100,000 and within six months set up in business under a new name, as happened in many instances. Perhaps the Minister might consider this before Report Stage. Where there is an obvious attempt to evade financial responsibilities, there should be a provision to sue directors of companies which have perhaps deliberately been put into liquidation.
Section 55 relates to the power of local authorities to prevent pollution in the first instance. Section 56 deals with action to remediate damage caused. Obviously, we will follow the polluter as far as possible, but there may be circumstances in which the local authority will have to foot the bill. However, as far as practicable, the polluter should be followed through. As regards the responsibilities of individuals who are members of companies, section 9 states:
Where an offence under this Act has been committed by a body corporate and is proved to have been committed with the consent or connivance of or to be attributable to any neglect on the part of a person being a director, manager, secretary or other similar officer of the body corporate, or a person who was purporting to act in any such capacity, that person as well as the body corporate shall be guilty of an offence and shall be liable to be proceeded against and punished as if he or she were guilty of the first mentioned offence.
It would not be possible for an individual to liquidate a company and absolve himself from personal culpability as a result.
Question put and agreed to.
SECTION 56.
Question proposed: "That section 56 stand part of the Bill."
This relates to an earlier query. It brings home the situation to which Senator Daly and I referred, that where a local authority is obliged to take action to prevent pollution, this section allows them to recover the costs.
It has been stated that somebody might have gone into liquidation and would not be in a position to meet the costs or that they might go into liquidation to avoid being liable for the costs. If such a body was a Government Department which through its negligence did not have proper insurance to cover what was involved, where would that leave the local authority?
The Leas-Chathaoirleach, as a member of the same county council of which I am a member, is well aware of the circumstances of Roscommon County Council. That county council carried out its duty in eliminating the possibility of pollution but found out later that the Department for which it carried out 75 per cent of the work — 75 per cent of the produce belonged to the Department of Agriculture, Food and Forestry and the other 25 per cent belonged to the private company which had rented the store and gone into liquidation — had no insurance to cover Roscommon County Council. In those circumstances, where does the local authority stand?
The local authority should not have to carry the can. At present the local authority must take the decision and must take the action to prevent the pollution but it still carries the can. Roscommon County Council is still carrying the can for that action. Under this Bill, which supposedly improves the provisions of the law, I do not see that a local authority will be protected. I fail to understand why the same Department, which is now liable to pay — and will pay — approximately £16 million to the European Commission, has left Roscommon County Council with a bill between £150,000 and £200,000.
There is not enough protection for local authorities in this Bill. There is provision for responsibility, but it does not seem that there is ultimate protection. Perhaps the Minister should give some kind of a guarantee to local authorities in this situation.
This Bill is not adequate. As I said in relation to an earlier section, county managers may not take action as quickly as they should because of the worries of being left with a big bill and being uptight about litigation. Local authorities will still be left exposed to costs in certain circumstances as happened in the past.
We seem to be revisiting the same particular sites over and over again.
That is what this section is about.
It is not, but I will deal with the point the Senator makes. I have explained in some detail the principle of "the polluter pays". Whoever causes the pollution should be followed up and acted against. Individuals, companies, Government Departments, State agencies or local authorities — and local authorities are not always as pure as the driven snow in relation to causing pollution — are all amenable to the provisions of this Bill.
It is not normal for Government Departments to take out insurance as they are covered, by and large, by State indemnity. The idea of insurance is to protect the individual who is acted against. If a person is guilty of an offence or has caused pollution, people will take action against that person. The idea of insurance is that a person can draw down his or her insurance to cover costs but the person is liable to the costs regardless of whether he or she has insurance. There might be individuals who do not have the wherewithal at the end of the day but they are liable personally if it can be proved that they are the cause of pollution.
This is a considerable strengthening of the law. It is clear in laying down its responsibilities. As I said, everybody will have responsibility laid upon them, whether they are an individual, a corporation, a State agency, Government Department or local authority, where they can be proven to have been the cause of pollution.
The law is strong on the issue of "the polluter pays" but that is not my point. My point relates to a situation where a local authority takes action which costs money to prevent pollution. Certainly, I see that the polluter can be followed and must pay but I do not see that the Bill is strong where preventative action is taken by a local authority to prevent mass pollution. If the county manager had not taken action in that case to bury thousands of tonnes of meat, one can imagine what would have happened in County Roscommon. The same can apply again. In the event of a situation such as that which Senator Daly mentioned, where the company involved has gone into liquidation, or in the circumstances which I mentioned, where there was no insurance, local authorities will still to some extent carry the can.
I take the Minister's point about indemnity but my understanding is that the EU has decided that the Department should have had insurance in this case where neither it nor the company had insurance. The Bill may have an adverse effect as county managers may decide not to take action because they feel they will be left with a large bill at the end of the day. There should be some mechanism in the Bill to protect local authorities.
I want to make a final point on this matter because I have said it 15 times in response to the same question. I invite the Senator to read section 56 (2). Local authorities should take action against the polluter — that is my advice. There is no point in me saying this repeatedly if Senator Finneran says that local authorities will be left high and dry. Section 56 (2) states:
Where a local authority takes steps, carries out operations, recovers or disposes of, or arranges for the recovery or disposal of, waste or gives assistance under this section, the local authority may recover the costs of such steps, operations, recovery, disposal or assistance as a simple contract debt in a court of competent jurisdiction from such person as the local authority satisfies the court is a person whose act or omission necessitated such steps, operations, recovery, disposal or assistance.
If somebody has caused pollution, the local authority can take action against them to recover the cost of dealing with it. Could it be plainer? If it is not plain enough, can the Senator suggest an amendment which would make it plainer?
I would tell the county manager that he must now take the Government to court to recover the £200,000. That is all I can draw from today's debate.
I want to give notice that we may put down some amendments on Report Stage.
Question put and agreed to.
Section 57 and 58 agreed to.
SECTION 59.
Government amendment No. 19:
In page 82, subsection (1), line 27, to delete "by persons".
This is a technical amendment intended to clarify the text by removing possible ambiguity. The proposal is to delete "by persons" in line 27.
Amendment agreed to.
Section 59, as amended, agreed to.
Section 60 agreed to.
SECTION 61.
Government amendment No. 20:
In page 84, between lines 3 and 4, to insert the following new subsection:
"(4) An order under subsection (3) shall not take effect until the ordinary time for instituting an appeal against the conviction or order concerned has expired or, where such an appeal is instituted, until it or any further appeal is finally decided or abandoned or the ordinary time for instituting any further appeal has expired.".
Section 61 provides for the forfeiture upon conviction on indictment of any vehicle or equipment owned by a defendant that was used in the commission of certain offences or for the forfeiture of an amount equal to the amount of the vehicle and equipment. I am advised by the parliamentary draftsman that this additional provision, to specify that such forfeiture cannot take place until the right of appeal time has elapsed or until such an appeal is determined, would be required in the Bill and accordingly, I ask the Seanad to support this amendment.
Amendment agreed to.
Section 61, as amended, agreed to.
Sections 62 and 63 agreed to.
SECTION 64.
Question proposed: "That section 64 stand part of the Bill."
The Minister has the power to make a number of regulations under this section. On a number of occasions we criticised the fact that there is provision for making regulations that are more complex and involved than the legislation itself. Can the Minister indicate the volume of regulations he has in mind in this section, how soon we are likely to see them and what the procedure is likely to be?
The section empowers the Minister to make regulations in relation to any process, development or operation and to require relevant persons to determine and provide to the agency or specified public authority or to publish details of releases of specified substances to the environment and the details of mass balance relationships within the process. A mass balance of a specified substance is an expression of the relationship between emissions of that substance from a specified process and its use or consumption in that process.
The idea behind these regulations is to require a detailed toxic release inventory so there would be public awareness of the substances released by any company, agency or corporation. Its details have to be worked out subsequent to the enactment of this provision. However, making information on the operation of any plant open to public scrutiny is part of open transparency in operations.
When information is sought, some companies refuse to give it and claim commercial sensitivities etc. While they are entitled to protect their products, in some circumstances companies use the umbrella of commercial sensitivity to keep from the public domain information that rightfully belongs to them. This may apply to the chemical and pharmaceutical industries. Can the Minister, under this section, elicit for the public what chemcial components go into our air, water or soil? We are at a loss in this area. I took great interest in the water and air pollution legislation we introduced. It provides vital information, as does this legislation. I might be in conflict with the Minister on some matters, but this is important and progressive legislation.
However, I am not satisfied that the Irish public is getting the information it requires. There is great concern and fear that chemical components, of which they are unaware, are getting into our air and water etc. A recent television programme referred to problems with livestock in a certain part of the country. We had an odour problem in my area. While the smell there was not unpleasant, nobody knew the damage it was doing. When a number of chemical and pharmaceutical companies are in the same location, emissions from different factories can also have an effect. The Minister should ensure under this legislation that regulations are introduced that will allow the public to know what is happening, particularly in our chemical industries.
I largely agree with the Senator. It is vital that the public has access to information about what exactly is being released by any company or any other activity in their locale. It is the intention of this section to require them to keep a register of all such emissions, monitor them in a way that is specified by the regulations and pass it on to the appropriate agency where it would be open to inspection by the general public.
I also intend to have a national emissions release register so we could have a national database that would ultimately link into a European counterpart. We would know exactly what is being released into all soils, water courses and the air. Most progressive companies have adopted EMAS, the environmental management and audit system, and have incorporated an environmental standard of production into all their activities. Of course, part of the EMAS process is to have such a register, monitoring and public access. It is a positive and progressive step in giving public access to information to which they are entitled.
The Minister might be able to clear up some of the omissions about these regulations. Will these regulations be made by the Minister on the advice of the agency? Senator Finneran mentioned the problems in the lower Shannon region where, in spite of strict monitoring by the agency, there are still complaints and fears from the public about what is really taking place there.
I presume the Minister will have further powers to make regulations in this situation. Will he single out specific projects for regulation? I want to find out the mechanics of operating these regulations. Will they be made on the advice of the agency or specific industries? Will this be done on a regional basis and where will we get the opportunity to discuss these regulations? Will they have to be laid before the House, for instance?
It is not that complicated. Any producer of toxins will be required to keep an inventory of toxins produced and to have it available for public inspection. We will not single out any one producer; we require this from all of them. If everybody comes under this section, there is no need to say that one company is doubly covered. Everything produced will be a matter of record and inspection.
Often public fears can be engendered without reason. The more progressive and developed industries tell me they will comply with the most rigid standards — we have some of the most rigid in the world — and any evaluation or independent analysis of their operations. However, when their mechanisms are validated, they expect that they will not be subject to arbitrary attack by people with no relevant knowledge who are involved in scaremongering. This issue involves a double-edged sword. Operators will be required to have the highest environmental standards in the world, there will be an agency to monitor the situation and the information will be made public. When this is achieved we will protect them from groundless accusations that they are causing damage.
Question put and agreed to.
SECTION 65.
Acting Chairman
A comma should appear in the first line of amendment No. 21 after the term "subsection (3)".
Government amendment No. 21:
In page 85, between lines 34 and 35, to insert the following paragraph:
"(c) the insertion in section 83, after subsection (3), of the following subsection:
‘(3A) Section 53 of the Waste Management Act, 1996, shall apply in relation to a licence or revised licence under this Part, with the substitution for references in that section to the grant or review of a waste licence of references to the grant or review of a licence or revised licence under this Part and with any other necessary modifications.' ".
I already referred to this important amendment. The amendment proposes to insert a new subsection (3A) into section 83 of the Environmental Protection Agency Act, 1992, to provide that section 53 of the Waste Management Act, 1996, shall apply in relation to the grant or review of a licence or revised licence under Part VI of the Environmental Protection Agency Act. This will allow the agency to satisfy itself with regard to the ability of an applicant or licence holder to meet the financial commitments and other possible liabilities arising from compliance with the requirements of a licence. The agency will also be permitted to require that appropriate financial provision be made for this purpose. Such financial provision may include a bonding arrangement or some other form of financial security.
At present there is no provision in the Environmental Protection Agency Act similar to that contained in section 53 of this Bill. It is considered prudent that the powers available to the agency under section 53 of the Bill should also be available to it in relation to its licensing functions under the existing Act. In an earlier reply I indicated that it will be a considerable strengthening of environmental protections to ensure that financial provisions are available to deal with the requirements of any licence.
Is it the case that the Minister is extending, not removing, existing powers?
Absolutely.
Amendment agreed to.
Section 65, as amended, agreed to.
SECTION 66.
Acting Chairman
In the proposed section 21A to be inserted in the Local Government (Water Pollution) (Amendment) Act, 1990, "plans" should be deleted from the line 2 of subsection (1) and should appear in the side heading "Nutrient Management Plans". Also in page 8, paragraph (iii), of amendment No. 22, "specified" should be deleted and replaced with "specifies". In line 5 of subsection (6) there is a reference to a notice under subsection (7) which should be a reference to subsection (8).
Government amendment No. 22:
In page 86, between lines 38 and 39, to insert the following new subsections:
"(2) Section 3 of the Local Government (Water Pollution) Act, 1977, is hereby amended by the substitution for subsection (3) (inserted by the Local Government (Water Pollution) (Amendment) Act, 1990) of the following subsection:
‘(3) It shall be a defence to a charge of committing an offence under this section for the accused to prove that he took all reasonable care to prevent the entry to waters to which the charge relates by providing, maintaining, using, operating and supervising facilities, or by employing practices or methods of operation, that were suitable for the purpose of such prevention, and, where appropriate, that the entry to waters to which the charge relates arose from an activity carried on in accordance with a nutrient management plan approved under section 21A (inserted by the Waste Management Act, 1996) of the Local Government (Water Pollution) (Amendment) Act, 1990.'
(3) The Local Government (Water Pollution) (Amendment) Act, 1990, is hereby amended by the insertion of the following section after section 21:
‘21A.—(1) Subject to subsection (2), whenever a local authority considers that, plans for the purposes of preventing, eliminating or minimising the entry of polluting matter to waters from an activity referred to in section 21 (1) (b) (being an activity that is carried on in its functional area) it is necessary to do so, it may serve a notice in writing under this section on—
(a) the owner of the land on which the activity is carried on, or
(b) if the owner of the said land is not in occupation thereof, the person who is in occupation of the said land, requiring the person to prepare and furnish to it for its approval under this section a plan (in this section referred to as a "nutrient management plan") in relation to the activity within a specified period, being a period of not less than 5 months beginning on the date of service of the notice.
(2) A notice under subsection (1) shall not be served on a person in relation to an activity the carrying on of which requires the grant of a licence under Part IV of the Environmental Protection Agency Act, 1992.
(3) Before a local authority decides to exercise the power conferred by subsection (1), (whether generally as respects activities referred to in section 21 (1) (b) carried on on lands in its functional area or as respects such activities carried on on lands in a particular part of its functional area) it shall consult with such body or bodies as may be prescribed for the purposes of this subsection.
(4) A notice under this section—
(a) shall require that the nutrient management plan—
(i) provide such particulars of the activity concerned as are specified in the notice,
(ii) specify the quantities of such nutrients in animal and other waste as are specified in the notice (which may include nutrients in waste as aforesaid produced from sources other than the land concerned) which it is estimated will be used in each year of the relevant period on the land concerned,
(iii) provide that a determination of the types and concentration of nutrients in the soil of the land concerned shall be made in accordance with a programme of sampling and analysis to be determined by the local authority after consultation with the person on whom the notice is served (hereafter in this section referred to as "the relevant person"),
(iv) specify the maximum quantities of such nutrients as are specified in the notice that, in the opinion of the relevant person, having regard to each of the matters referred to in subsection (5), ought, in each year of the relevant period, to be applied to, or injected into, the land concerned, or such parts thereof as are specified in the notice, or applied to crops growing on that land or such parts as are so specified,
(v) specify the times during the relevant period when the application to, or the injection into, the land concerned, or the application to crops growing thereon, of animal and other waste and chemical fertiliser ought, and ought not, in the opinion of the relevant person, to be carried out, having regard to any crop requirements and the objective of preventing, eliminating or minimising the loss of nutrients to waters,
(vi) require the keeping and maintenance of records in respect of each year, or, in the case of the matters referred to in clause (III), the year or years concerned, of the relevant period, containing such particulars as may be determined by the local authority after consultation with the relevant person in relation to—
(I) the doing of the following things during the year concerned by the said person, namely—
(A) the production, treatment, receiving from, or transfer to, another person by him of animal or other waste,
(B) the application to, or the injection into, the land concerned or the application to crops growing thereon, by him of animal or other waste and the times and rates at which such application or injection is carried out,
(II) the types and quantities of chemical fertiliser applied to the land concerned during the year concerned and the times and rates at which such application is carried out,
(III) the results of the determination referred to in subparagraph (iii) made in relation to the land concerned and, as the case may be, of any further determination of such kind made, pursuant to a requirement under paragraph (b) (ii), during the year concerned,
(vii) require such information in relation to the matters referred to in this paragraph and, as the case may be, paragraph (b), as is specified in the notice to be furnished to the local authority,
(b) may require that the nutrient management plan—
(i) shall require the keeping and maintenance of records in respect of each year of the relevant period containing particulars as may be determined by the local authority after consultation with the relevant person of the concentration of such nutrients in animal or other waste as are specified in the notice that have been applied to, or injected into, the land concerned during the year concerned,
(ii) shall provide that a further determination of the kind referred to in paragraph (a) (iii) (whether in respect of nutrients generally or nutrients of a class specified in a notice served by the local authority on the relevant person for the purposes of this sub — paragraph) shall be made at specified intervals after the determination referred to in that provision has been made,
(iii) shall address such other matters as the local authority considers necessary for the purpose of preventing, eliminating or minimising the entry of nutrients to waters from the activity concerned and specified in the notice.
(5) The matters referred to in subsection (4) (a) (iv) are—
(a) the nature of the activity concerned,
(b) the type of soil concerned and the types and concentration of nutrients in that soil,
(c) the types of crop previously grown on the land concerned and the types of nutrient previously applied to, or injected into, that land and the rates of such application or injection, where relevant,
(d) the types of crop grown or to be grown on the land concerned,
(e) the intensity of the stocking of animals (if any) on the land concerned and of any other agricultural activities carried on on that land, and
(f) the need to make efficient use of nutrients having regard to any crop requirements and the objective of preventing, eliminating or minimising the loss of nutrients to waters.
(6) In subsection (4) and the subsequent provisions of this section "the relevant period" means the period of 12 months, or such longer period as may be specified in the notice concerned under subsection (1) or (8), as appropriate, beginning on the date that is 2 months after the approval of the nutrient management plan concerned under this section by the relevant local authority.
(7) A local authority may, as respects a nutrient management plan prepared and furnished to it in accordance with a notice under subsection (1), refuse to approve of the plan or approve thereof without modifications or make such modifications therein as it considers proper and approve of the plan as so modified.
(8) (a) A local authority, where it refuses to approve of a nutrient management plan under subsection (7), may, by service of a notice in writing on the person who furnished the plan to it, require that person to prepare and furnish to it another such plan and subsection (3) and the other provisions of this section shall apply to such a notice and such a plan as they apply to a notice under subsection (1) and a plan furnished to it pursuant to a notice under that subsection.
(b) The reference in subsection (2) to a notice under subsection (1) includes a reference to a notice under this subsection.
(9) If, upon the expiration of the period of 2 months from the date of receipt by it of a nutrient management plan prepared and furnished in accordance with a notice under this section, the local authority concerned has neither given a decision under subsection (7) to refuse to approve of the plan nor a decision thereunder to approve of the plan (by either of the means referred to in that subsection), the local authority shall be deemed to have approved of the plan under that subsection.
(10) A nutrient management plan may, with the prior written consent of the local authority which approved of the plan under this section, be varied during the relevant period.
(11) A person who fails to comply with a notice under subsection (1) or (8) within the period specified in the notice shall be guilty of an offence and be liable on summary conviction to a fine not exceeding £1,000 or to imprisonment for a term not exceeding 6 months, or to both.
(12) Proceedings for an offence under this section may be brought by the local authority which served the notice concerned.".
This is a very important amendment which inserts a new section into the Local Government (Water Pollution) (Amendment) Act, 1990, empowering local authorities to require farmers to prepare nutrient management plans in respect of their farms.
During the debate on this Bill in the Dáil, there was considerable discussion about the potential of agricultural waste and certain farming practices to cause water pollution. This has arisen again today. There was a recognition by Deputies in the Lower House that the Bill, in addition to the controls to be applied to waste in general, contained a number of provisions focusing principally on agricultural wastes. Deputies welcomed these provisions but concerns remained that the threat posed to the environment by some agricultural activities should be countered more effectively. In responding to that debate I undertook to introduce an amendment to the Local Government (Water Pollution) (Amendment) Act, 1990, when the Bill came before the Seanad, for the purpose of dealing with the excessive enrichment of waters caused by nutrients contained in farm wastes and chemical fertilisers.
The watercourses of Ireland are quite clean and pure when compared to those of other European countries. However, farm run-off is a significant source of pollution and causes eutrofication. Unfortunately this area of the environment is deteriorating rather than improving due to the increasing amounts of nutrients from farmlands which are running into watercourses, denuding them of oxygen levels and causing pollution. It is important to address this issue. I am taking the opportunity, through this legislation, to introduce an amendment to the Local Government (Water Pollution) (Amendment) Act, 1990, which will place a new responsibility on farmers if local authorities prepare a nutrient management plan in respect of their farms. I believe the amendment will be welcomed by all sides of the House.
Amendment agreed to.
Question proposed: "That section 66, as amended, stand part of the Bill."
This section represents an addition to the Local Government (Water Pollution) (Amendment) Act, 1990. The Minister stated that manure and fertilisers would be considered pollutants but there are certain agricultural wastes which are not pollutants. However, I am aware that effluent from silage is a terrible pollutant and can lead to fish kills, etc. In dealing with this matter in the past we discussed old legislation and abatement law and local authorities dealt with it under section 12 of the 1990 Act.
I wish to ascertain that the Minister is not about to enter into a witch-hunt against farmers. By their nature farm developments involve a certain amount of waste. While some people might object to such waste, it might not necessarily be a pollutant. For example, a farmer might spread ten tonnes of manure on a stretch of marginal land and be faced with a downpour of rain similar to the one last spring which lasted six weeks. One farmer I know had 60 acres of land which was under water for four months and it is possible that he spread ten tonnes of chemical manure before the flood. What is the situation in relation to such an individual? I do not believe the Minister intends that, due to an act of God, the man would be liable for fines under this section of the Bill. I seek reassurance for the farming public in this regard but I do not condone any contribution to pollution. We must allow farmers to operate without the threat of being brought to court. Members know that large tracts of our country are subject to frequent flooding, which can disrupt the farming process and cause matter to go into watercourses.
Progress reported; Committee to sit again.