Waste Management Bill, 1995: Committee Stage (Resumed).

Question again proposed: "That section 66, as amended, stand part of the Bill."

Who does the Minister envisage will draw up the management plans for water pollution? Will this amended section mean that all farmers will have to introduce management plans? Who will be in charge of them? Will the local authority have to ensure they are drawn up? Huge expense is being put on this industry even though many farmers are already spending substantial funds, accompanied by grants under different schemes, to ensure that what the Minister fears will not happen. As the previous speaker said, if granulated manure fertiliser is spread and torrential rain follows there may be problems and no one can guarantee this will not happen.

How is "reasonable care" in subsection (3) of the amendment defined? Will the "supervisory facilities" and "practices or methods of operation" mentioned in the amendment be set down in regulations?

As I said at the outset, this is an important amendment and I will put it in context for the House. The scale of the waste load generated by farming is immense. When assessed on the basis of biochemical oxygen demand, the volume of farm wastes is approximately ten times the combined volumes of waste from industry and domestic sewage. A similar ratio obtains when the phosphorous contents of these wastes is assessed, phosphorous being the nutrient primarily responsible for the excessive fertilisation or nutrification of a significant portion of Irish waterways.

We have seen once-off fish kills from farm waste in recent summers but what is probably of even greater significance is the general impact farm waste has on our water systems. The last national review of water quality, concerning the period 1987 to 1990, found that nutrification or slight or moderate pollution affected 21.5 per cent of surveyed river channel length. Unfortunately, there has been an upward trend in the proportion of river channels so affected since the early 1970s and I am concerned that the national overview for the four years up to 1994, which will be published shortly by the Environmental Protection Agency, may show further evidence of a continuation of this unwelcome and disturbing trend.

We will take action because we cannot ignore this source of pollution while dealing with everything else. We could spend millions on treatment of sewage and have all our work undone if we do not address farm waste run-off. I am aware of the immense investment farmers in my county have put into controlling waste in recent years, which has been matched by considerable national and EU funding. Notwithstanding that, the facts are there and the problem of run-off has been increasing rather than diminishing.

The amendment will enable local authorities to serve notices requiring farm nutrient management plans to be prepared and submitted to the local authority for approval. Farmers will be obliged to keep records of wastes generated, imported or exported from their farms, the rates and times of applications to land, as well as details of chemical fertilisers used, to verify compliance with the plan submitted and approved. The farmers will draw up the plans and provision is also being made for them to apply to local authorities for approval for variation of the plans during their period of operation to cater for unforeseen circumstances or changes in farming practice, etc. These powers mean that local authorities, when considering the function of a farm, would be able to take measures to prevent, eliminate or minimise pollution from nutrients.

Shortly after I became Minister for the Environment I launched a Teagasc scheme to ask farmers to test their soils. A huge amount of money is wasted by farmers who over-nutrify their land when there is no need for it, so proper testing and evaluation and better use of fertilisers would be in the interest not only of the environment but of farmers, as it would save them money. Teagasc has been trying to communicate this message for a long time and this is an additional implement to bring us along this desirable path.

An Leas-Chathaoirleach

Before I call Senator Farrelly, I must point out that amendment No. 22 has been agreed to. We are now dealing with section 66 as amended.

I am grateful to the Minister for his reply but it would be remiss not to raise some points. A farmer may or may not be involved in the REPS scheme, applications for which are running at 350 per week. Regardless of that, does this section mean the Department of the Environment wants him to run his own environmental protection scheme and control the amount of chemicals and fertiliser used on his land? When the farmer produces his plan, will the local authority inform him he can use only a certain amount of a particular product on the basis of the information supplied? Does the section mean that milk producers and other members of the agricultural community will be subject to a type of REPS scheme, with those who have applied for the scheme?

This section will have far reaching effects on the farming community. The farm organisations will challenge us on this matter because they will feel we have added a burden on farmers to produce a plan and keep records. They will see it as more red tape.

I do not want a witch-hunt on farmers. If farmers are to have nutrient management plans what will be the position of Coillte, a State body which engages in large scale afforestation? Forestry development has caused and is causing a change in the pH of waterways. Will this legislation cover Coillte and the many other forestry development companies which have been set up over the past few years to avail of generous EU grants? In many cases their activity has been to the detriment of the farming community who cannot compete with them when leasing or buying land. Will nutrient management and waterway plans apply to Coillte and other forestry development companies?

Bord na Móna is interfering with watercourses. I referred to the main channel of the Shannon, but before water reaches the Shannon it may have come many miles through many small streams and drains. Bord na Móna is contributing to the change in the environment of the rivers.

Farmers should not be singled out in this legislation. It should cover all those who abuse the rivers by contributing to the change in the pH of the water. Some farming land is suspect in that it may have a high water table and nutrients can get into the watercourse easily. However, we should have some assurance for the farming community who will lobby us in future. We should be able to tell the farmers that we have included provisions to prevent the waterways being damaged through nutrification but that farmers will not have a further impediment put on them, the cost of which they may not be able to bear. We do not want them to feel they have been singled out while Coillte, Bord na Móna and the many private forestry companies will not have to meet the criteria for management plans or comply with regulations under this legislation.

I do not know what all the fuss is about. The measure is being taken as a result of concrete evidence of an increase in water pollution.

The Senator should not blame the farmers for it all.

The Bill provides that it shall be a good defence to show that all necessary steps have been taken to prevent the pollution. We must realise the seriousness of the pollution of our waterways.

Farmers are not the only culprits.

I disapprove of the notion of witch-hunting. This is a modest provision in the context of the stringent powers given to local authorities to deal with other forms of pollution. The local authorities will require some farmers to develop nutrient management plans. It will be in their own interest to do so. They will probably save money when they realise the value of waste as a nutrient in itself and when they manage their on-farm waste more effectively.

I have indicated the scale of nutrification because of the run-off of fertilisers from farm land. It is the most serious source of minor pollution of our watercourses and we are obliged to take action. The farmer will devise his or her own plan and submit it to the local authority, which will not determine what a farmer can apply. The farmer will monitor the plan with the help of the local authority. It will be a co-operative venture with the objective of keeping the watercourses as clean as possible. Nobody wants that more than the farmers and those living in rural communities.

Failure to comply with the terms of the plan will not be an offence. It is the only element of the Bill where an offence is not involved. The intention is to promote an informed approach by farmers. Progressive farmers already realise the value of nutrients in farm waste. Teagasc estimates the potential saving to farmers for the more effective use of fertilisers would be £25 million per year. That is a significant factor. This provision would be a minor imposition on farmers if we can achieve an improvement in water quality.

Senator Finneran referred to Coillte and Bord na Móna. This section deals with the nutrification of waterways and the over use of nutrients. There is a separate issue of acidification which is a problem associated with forestry but it is not dealt with by this provision. I have an open mind on the matter and I intend it would be State policy to minimise as far as possible any harmful effect on our environment from any activity.

I will table an amendment on Report Stage to cover the bodies I mentioned. I raised this matter in 1992 with regard to Bord na Móna without success. It is a pity we did not provide for some protections with regard to the extraction of peat. The Minister is correct to say we are talking about acidity in this case and changes in the pH of water. It is time we dealt with it on the basis of our State companies and other forestry companies. I will consider the submission of an amendment on Report Stage.

Question put and agreed to.
SECTION 67.

I move amendment No. 22a:

In page 86, lines 39 to 44, to delete subsection (1).

Section 67 (1) provides that no action will be taken against an agency or an authority by any person for damage or loss when enforcing legislation. On numerous occasions in the past, local authorities have been seriously negligent with regard to pollution matters. There are many instances where they have been rightly prosecuted, especially by fisheries boards, for breaches of pollution legislation. This has led to a number of convictions. In addition, there has been conflict between the boards and the local authorities over a number of years. Fish on stretches of rivers have been wiped out because of serious dereliction of duty by local authorities. In one river in west County Clare, the discharge of chemicals was allowed through a purification plant which wiped out the stock of salmon and brown trout. It is only beginning to recover after approximately ten years.

I would be loath to see damage arise through negligence, especially to trout and salmon. If the negligence is on the part of the local authority, will it be possible to claim for compensation under this section? Senator Finneran referred to the fear that there may be less stringent enforcement of regulations against, for example, the ESB if there are emissions from Moneypoint, the county councils if there are discharges from water purification plants or Bord na Móna if peat gets into the valuable salmon fisheries. I see merit in having the section redrafted, if not deleted.

Section 67 (1) provides for an essential level of protection for the agency and local authorities against unwarranted or inappropriate litigation. The proposed amendment is based on a misunderstanding of my intention. The section does not protect the agency or any local authority from any claims made against them for any wrongdoing on their part. It does not give immunity against normal legal action, such as suing for negligence and wrongdoing, all of which would remain open to be pursued in the courts by any individual.

This section prevents all pollution from being attributable to a local authority or the agency where they could be joined in any action against any polluter. It could be alleged that, since the pollution occurred, they were negligent in not preventing it happening. State companies, state agencies and local authorities may often be seen as softer targets than the polluters and may be subject to even more stringent financial burdens than the polluters.

A broad range of functions is given to the agency under this legislation and existing statute law. It would be unreasonable to assume that every envisaged protection we have put into the law would be carried out by the agency and that it would not slip up from time to time. We cannot legislate to prevent all pollution and claim that nobody is ever going to break this law. It would not be right and fair that the agency, or the local authority, would be deemed responsible for an act of pollution simply by not enforcing the law through oversight. It is a standard provision that unwarranted or inappropriate litigation should not be open, but where negligence or incompetence is proven, normal litigation would be possible.

The Minister has not allayed my fears that the local authorities will not get off the hook by this provision. If he tells me that they can be sued and that action can be taken against them for loss or damage where they create or allow pollution to occur I will withdraw the amendment. While the Minister's intention may be as he has advised, it does not read this way in the Bill.

I often have the same difficulty. When one explains to the parliamentary draftsman what one wishes to achieve and when one then sees this expressed in the language of the parliamentary draftsman it may not appear to meet requirements. However, I am reliably assured that this provision will do what I say. It will protect the agencies and local authorities from being cojoined in an action against them regarding any source of pollution but will not protect them from action where there is clear negligence on their behalf.

Amendment, by leave, withdrawn.
Section 67 agreed to.
SECTION 68.
Question proposed: "That section 68 stand part of the Bill."

The term "hazardous waste" is referred to. What is the position regarding toxic waste? The Cork region accounts for 75 per cent of toxic waste and 20,000 tonnes of the waste which has to be exported derives from the Cork area. This can be attributed to the pharmaceutical industry. Much toxic waste is also being generated in other areas. Do we know where it is being disposed of?

The Environmental Protection Agency is currently undertaking a national inventory of hazardous waste. We will then have a clearer view of the production of hazardous waste. The previous Government made a determination with regard to treatment of hazardous waste not to build a national waste incinerator. Most hazardous waste is currently exported from Ireland. Some of it is incinerated on site. Following the enactment of this legislation there will be a requirement to have a hazardous waste management plan.

Question put and agreed to.
SECTION 69.
Question proposed: "That section 69 stand part of the Bill."

What does the Minister envisage with regard to the transfer of functions from the agency to the authority? This could lead to confusion regarding responsibility. It could also result in possible arguments between the agency and the authorities which would hold up vital developments and could be a recipe for conflict.

I very seldom see a provision in a Bill transferring powers from any agency or Department to local authorities. This is a very welcome development. I have always promoted and supported the local authority system and I welcome any move in that direction. I presume there is a good reason for it and, like Senator Daly, I would like to know what it is. In the 1992 Environmental Protection Agency legislation we dealt with some matters that are now being taken back following the intervention of the Minister and there are obviously good reasons.

Many of the areas dealt with in the Environmental Protection Agency legislation could just as well have been dealt with under local authority law which had a firmer basis than the new agency. Local authority law has served the country very well. There have been changes and the law must be updated but the only problems we encountered with local authority law in recent years concerned the inability of local authorities to finance themselves. Local authorities have been given powers in circumstances that we would welcome, but unfortunately finances have not come with those powers. On this occasion the new powers do not constitute a great burden.

As Senators said, this is an enabling provision to allow the transfer. I am committed to subsidiarity; I have said this on every occasion on which I have spoken in these Houses. There may be in the future a capacity within a local authority to deal with some of the waste and management functions currently being given under this legislation to the agency. I want the Minister of the day to have the power to devolve that function should he or she be convinced that the capacity is there at local level to carry it out effectively.

Question put and agreed to.
SECTION 70.
Question proposed: "That section 70 stand part of the Bill."

This section refers to section 107 of the Public Health (Ireland) Act, 1878 and section 27 of the Public Health Acts Amendment Act, 1890. It states that they shall not apply in relation to waste within the meaning of this legislation. I am not in a position to know what either of those sections contains. For the purposes of information, the Minister might inform the House of what is contained in those two sections, and why they do not come under the measures or provisions of this legislation.

The section simply applied to the accumulation of rubbish in public places. They are dealt with adequately and do not need to be replicated in this provision.

Question put and agreed to.
NEW SECTION.
Government amendment No. 23:
In page 89, before the First Schedule, to insert the following new section:
71.—(1) A vehicle shall not be abandoned on any land.
(2) Where there is a contravention of subsection (1)—
(a) the person who placed the vehicle at the place where it was abandoned, and
(b) if there is a registered owner of the vehicle and the person aforesaid is not its registered owner, the registered owner
shall each be guilty of an offence.
(3) In a prosecution for an offence under subsection (2), it shall be a good defence to prove—
(a) that the act complained of constituted the transfer of control of the vehicle concerned to a person, with his or her consent, at a facility provided by or on behalf of that person for the purpose of the recovery or disposal of vehicles (including a facility referred to in section 38 (3)) and that such transfer of control was not effected in contravention of section 32, or
(b) in case the defendant is the registered owner of the vehicle concerned, that the abandonment of the vehicle was not authorised by him or her.
(4) Without prejudice to the provisions of sections 55 (6) and 56, and notwithstanding the provisions of any regulations made under section 97 (inserted by section 63 of the Road Traffic Act, 1968) of the Road Traffic Act, 1961, a local authority may enter on any land upon which a vehicle has been abandoned and remove the said vehicle; a local authority shall not, other than with the consent of the occupier, enter into a private dwelling under this subsection unless it has given to the occupier of the dwelling not less than 24 hours notice in writing of its intended entry.
(5) Where, in relation to a vehicle removed from land by a local authority under subsection (4)—
(a) the local authority is of the opinion that the condition of the vehicle is such that it is capable of being used as a vehicle or can, by the expenditure of a reasonable amount of money, be rendered capable of being so used, and
(b) the local authority can, by reasonable inquiry, ascertain the name and address of the owner of the vehicle,
the local authority shall store or arrange for the storage of the vehicle and shall serve a notice on the owner informing him or her of the removal and storage and of the address of the place where the vehicle may be claimed or recovered, and such a notice shall require the owner to claim or recover it within 2 weeks of the date of the service of the notice and inform him or her of the consequences specified in subsection (7) of his or her failure to do so.
(6) A vehicle to which subsection (5) applies shall be given to a person claiming the vehicle if, but only if, he or she makes a declaration in such form as may be specified by the local authority concerned or in a form to the like effect, stating that he or she is the owner of the vehicle or is authorised by its owner to claim it, and pays to the local authority the amount of the expenditure reasonably incurred by the local authority in respect of the removal and storage of the vehicle.
(7) Where a vehicle is removed from land by a local authority under subsection (4), and
(a) subsection (5) (a) does not apply in respect of the vehicle, or
(b) the name and address of the owner of the vehicle cannot be ascertained by the local authority by reasonable inquiry, or
(c) the said owner fails to claim the vehicle and remove it from the place where it is stored within 4 weeks of the date on which a notice under subsection (5) has been served on him or her,
the vehicle shall become the property of the local authority.
(8) No action shall lie in respect of anything done in good faith and without negligence in the course of the removal or storage of a vehicle under this section.
(9) A person who makes a declaration under subsection (6) which to his or her knowledge is false or misleading in a material respect shall be guilty of an offence.
(10) For the purposes of this section—
‘abandoned', in relation to a vehicle, includes left in such circumstances or for such period that it is reasonable to assume that the vehicle has been abandoned, and cognate words shall be construed accordingly;
‘local authority' includes the corporation of a borough of any kind and the council of an urban district;
‘registered owner' has the meaning assigned to it by the Road Traffic Act, 1961."
Amendment agreed to.
First Schedule agreed to.
Second Schedule agreed to.
THIRD SCHEDULE.
Question proposed: "That the Third Schedule be the Third Schedule to the Bill."

In regard to landfill sites, EU regulations say that there is no need for an environmental impact survey if the amount being deposited or disposed of is less than 25,000 tonnes per annum. Very often it is impossible to monitor that and to know whether it is more or less than 25,000 tonnes per annum. Should there be a derogation from that regulation?

I have a question regarding incineration on land or at sea. I was not aware that any State had the authority to carry out incineration at sea. Why would it be in the legislation?

Incineration at sea is already covered under existing legislation; that is the way the parliamentary draftsmen operate. It is outlawed by international treaty as well as in domestic Irish law. It has already been dealt with.

In answer to Senator Sherlock's question about environmental impact assessments for landfill sites, although the European directive does not require an environmental impact assessment below the threshold the Senator has mentioned, as with a number of environmental impact assessment criteria, we operate much more rigid standards in Ireland than in most other European countries. In sewage waste management, the requirement in Ireland is for an environmental impact assessment for every plant greater than 10,000 population equivalent. The requirement is for an environmental impact assessment for every plant greater than 120,000 population equivalent under the new refined European directive. Similarly, in relation to landfill, we will require an environmental assessment of every project, regardless of volume.

Question put and agreed to.
Fourth Schedule agreed to.
FIFTH SCHEDULE
Government amendment No. 24:
In page 97, between lines 17 and 18, to insert the following:
"No. 11 of 1982 Litter Act, 1982 Sections 9, 10, 11, 12 and 13."
Amendment agreed to.
Question proposed: "That the Fifth Schedule, as amended, be the Fifth Schedule to the Bill."

This is the amendment of the 1992 legislation. Can the Minister tell us what is in that? It seems very soon to amend something which was only passed a few years ago.

A provision in the 1992 Act deals with toxics release inventories. A much more stringent toxic release inventory mechanism will apply when this legislation is enacted so it is replacing a weaker section with a stronger one.

The new section is done by way of regulation. Is it wise to abandon this until the regulations are in place?

Section 96 (4) of the Environmental Protection Agency Act, 1992, reads:

The agency shall require the making of such measurements, calculations or estimates and the keeping of such records as may be prescribed in relation to emissions of proscribed substances by such activities as may be prescribed and shall make such records available or cause such records to be made available for inspection by the public at all reasonable times and publish or cause to be published, such records.

This is also an enabling provision. The specifics of what records would be kept were made by subsequent regulations. The new regulations will be made and will apply as soon as this legislation is passed. We will co-ordinate both provisions so that there is no gap.

In the Environmental Protection Agency legislation——

The 1992 Act?

Yes. I understand section 96 does not deal with monitoring environmental quality and emissions.

I read out that section. Does the Senator wish me to read it again?

No, but I thought it would not be done by regulation if it related to that area.

Under the Fifth Schedule it is proposed to repeal section 96(4) only.

Question put and agreed to.
Title agreed to.

An Leas-Chathaoirleach

When is it proposed to take Report Stage?

Next Wednesday, unless the Opposition is prepared to take it now.

An Leas-Chathaoirleach

I doubt that, Senator. Is it agreed to take Report Stage next Wednesday? Agreed.

Report Stage ordered for Wednesday, 27 March 1996.