I welcome the Minister to the House. I remind Members that a Senator may speak only once on Report Stage, except the proposer of an amendment who may reply to the discussion on the amendment. In addition, on Report Stage, each amendment must be seconded. Amendments Nos. 1, 2 and 3 are cognate and may be discussed together.
Waste Management Bill, 1995: Report and Final Stages.
Acting Chairman
I move amendment No. 1:
In page 19, line 5, after "Agency" to insert "or the Regional Fishery Board for the area".
I second the amendment.
These amendments would allow a regional fisheries board to apply to the courts for payment to it of a fine imposed on foot of a summary prosecution under the Bill. However, the amendments are premature and inappropriate. They seem to be based on a confusion of different aspects of the Bill and the enforcement powers available to regional fisheries boards under it and other enactments.
I wish to make a distinction between the different aspects involved. These include, first, the powers of the boards under various enactments to take measures to secure the remediation of the polluted waters; second, the general powers of a regional fisheries board under various enactments to prosecute offences involving water pollution and to apply for payment to the board of fines imposed in cases prosecuted by the board; third, the power which will be available to a board under the Bill to take measures to secure the remediation of polluted waters, and, fourth, the prosecution by a board of offences under the Bill and the allocation of fines.
Regional fisheries boards already have extensive powers under the Water Pollution Acts and the Fisheries Acts to take legal action in relation to incidents of water pollution arising from any source, including emissions from waste activities. They also have power to seek a court order to require an offender to mitigate or remedy the effects of water pollution and to secure the payment to them of fines imposed under those Acts. Nothing in the Bill seeks to diminish these powers in any way. Section 58 of the Bill will extend the powers available to regional fisheries boards. This section provides that, in the event of environmental pollution arising from a waste activity, any person may seek an order from the appropriate court for the remediation by the polluter of the environmental damage. In the case of proceedings before the High Court, there are no limitations on the cost of remediation measures which may be required by order of the court.
However, Senators will note that regional fisheries boards are not authorised under section 11 to initiate summary proceedings for offences under the Bill. It is not appropriate, therefore, to propose that a board should be empowered to apply for the payment to it of a fine arising from a prosecution taken by another party. It is for this reason that I regard the amendments as premature and inappropriate. I accept there is a strong case for authorising regional fisheries boards under section 11 to take summary proceedings for offences under the Bill and I will give consideration to prescribing regional fisheries boards under section 11 (2) for this purpose. If the boards are so specified, they would automatically be empowered under section 13 to make application to the court for the payment of fines arising from any summary proceedings brought by them under the Bill.
On Committee Stage, Senators expressed support for those amendments on the basis that, where a major fish kill or damage to a fishery habitat is caused by the disposal of waste, a fine imposed should be devoted to the reinstatement of the fishery by the regional board. While I appreciate the underlying concerns of Senators in this regard, I ask the House to note that section 13 is not intended to address the question of remediation of environmental damage caused by waste as this matter is well covered by section 58. Section 13 relates only to the prosecution of summary proceedings for minor offences and that the maximum fine which may be imposed in such cases is £1,500. I ask the Senator to withdraw the amendments.
The regional fisheries boards have a role to play and the Minister admitted as much in his contribution. They should be in a position to receive payment. In many cases fisheries boards would be out of pocket, not only from replacing stocks but as a result of investigations and so on. If we are to take seriously the possibility of waste damaging our waterways, the regional fisheries boards must have a role to play. In the past regional fisheries boards have had to take local authorities to court for failing to do work.
On Committee Stage I referred to the position of commercial State sponsored bodies such as Bord na Móna and Coillte and private forestry companies. We will not have tackled this matter fully unless the fisheries boards are given a role. The Minister of State said he saw a possibility of dealing with the matter under section 11. Did he mean by regulation?
Yes, by regulation.
When does he envisage such a regulation being made?
I said it would happen very early on.
The three amendments refer to the fisheries boards. While I understand the difficulties to some extent, I still feel——
Acting Chairman
I must interrupt the Senator as he can only speak once on the amendments.
I accept the Minister of State's bona fides and his statement that he will attempt to deal with the matter by regulation under section 11.
Amendment, by leave, withdrawn.
Amendments Nos. 2 and 3 not moved.
I move amendment No. 4:
In page 19, to delete lines 27 to 31.
This amendment seeks to delete the section 14 (2) which states:
. . . an authorised person shall not, other than with the consent of the occupier, enter into a private dwelling under this section unless he or she has given to the occupier of the dwelling not less than 24 hours notice in writing of his or her intended entry.
That provision is unfair; it is an imposition. While we understand the need for the Minister to have strong legislation in this area, the ability to enter onto property in the circumstances interferes with people's rights. When this House dealt with other legislation under which it was proposed the Garda could enter property after a road accident, there was major opposition to the matter. The Minister may have a good reason for this provision and the legislation is intended to address the problems we face.
An Leas-Chathaoirleach
Since there is no seconder for the amendment, it falls.
Amendment, by leave, withdrawn.
I move amendment No. 5:
In page 19, line 33, after "appointment" to insert "stamped with an official seal of the Authorising Authority, Agency and Minister".
The purpose of this amendment is to regularise the situation so that somebody in authority has a proper seal of office. Section 14 (3) states:
Every authorised person shall be furnished with a certificate of his or her appointment and when exercising any power conferred on him or her by or under this Act,. . . . .
The amendment seeks to have the words "stamped with the official seal of the Authorising Authority, Agency or Minister" inserted after the word "appointment". Given the difficulties and fears experienced by people, it is important for those acting on behalf of State agencies and others to have a proper official seal. I am not sure how that operates under similar legislation. Increasing numbers of people are afraid of dealing with authorised persons if they are not sure whether they are officially authorised. The intention of this amendment is to ensure that everything in this area is clear and transparent. It is very hard to deal with every possibility and eventuality under legislation. However, it is important for people presenting themselves as authorised persons to have proper identification stamped by the authorising authority, which they must produce on request.
People need to be sure about those with whom they are dealing. They must know that the person who presents himself or herself is who he or she claims to be and that he or she has the necessary identification and documentation. Under law such people must produce such documentation if requested. However, what do they produce at present? The authentic caller will produce authentic identification and that is all right, but it is other circumstances we have to worry about.
I hope the Minister will take this amendment seriously and consider it favourably. It would add to the legislation and would demonstrate to the public that when we consider legislation we look at all the eventualities that could arise in its implementation. I have outlined the intent of the amendment, which was emphasised by Senator Daly on Committee Stage. There was less need for such identification in the past, but in the times in which we live certification stamped by the agency which the person represents is of vital importance. I hope the Minister will be in a position to respond positively.
I second the amendment.
Amendment No. 5 would require that a certificate of appointment issued to an authorised person under section 14 of the Bill would be stamped with the official seal of the authorising authority, agency or the Minister. While I understand the intent, I do not propose to accept the amendment for practical reasons.
It is the practice for a Minister, the agency and in many cases local authorities to seal a certificate of appointment for an authorised person with the relevant official seal, but it is not a legal requirement. In the case of a local authority such a requirement might cause practical difficulties in situations where it was necessary to appoint an authorised person as a matter of urgency. The affixing of the seal of a local authority requires the presence and signature of the chairman or a member of the authority. It is not, therefore, a procedure which could apply in an urgent situation.
There is no precedent in environmental or fisheries legislation for the proposed amendment. I am satisfied that it would not meaningfully strengthen the provisions of the Bill with regard to the appointment of authorised persons and it could inadvertently cause difficulties. Accordingly, I ask that the amendment be withdrawn.
I understand to some extent why the Minister is not prepared to accept the amendment. My colleague, Senator Daly, considered this matter to be most important. However, I accept that the Minister has examined it and, while recognising the problem, anticipated that the amendment might create further problems. I withdraw the amendment.
Amendment, by leave, withdrawn.
I move amendment No. 6:
In page 25, between lines 8 and 9, to insert the following:
"(7) The Agency or a local authority shall as soon as may be after the conviction of a person, publish a list of convicted persons in a newspaper circulated in the area, giving details and fines imposed.".
This amendment is very important. It is the only way in which successful outcomes of prosecutions can be dealt with. The amendment proposes that the agency or local authority should publish a list of convicted persons in a newspaper circulated in the area giving details of the fines imposed. The legislation provides that the relevant local authority or agency inform other agencies, but that is too loose. We cannot have a situation where a local authority or agency might not know about somebody who has been convicted in an adjoining area. We have seen the consequences of that.
I doubt that the provision in the legislation will work in practice. Some officials will send a formal letter to a neighbouring authority and will ensure that the letter goes directly to the recording secretary. However, others might simply pick up the telephone and convey the information verbally. The provision is too loose; we cannot be sure that it will be implemented. If we are to implement this legislation, information about somebody who is convicted and fined for an offence should be made known. We do not want that person to be able to commit a similar offence or conduct similar activities again in an area under an adjoining authority or agency. In order to deal with such a situation we must ensure that information about somebody who is convicted of and fined for an offence under this legislation is made known. A proper structure to make such information known must be put in place.
The provision in the Bill is not specific. Section 18 (6) states:
. . . . . the Agency or the local authority, as the case may be, shall, as soon as may be after the conviction of the person, inform each local authority or, as the case may be, each other local authority and the Agency of the fact that the person has been so convicted, giving such details, as it thinks appropriate, of the nature of the offence.
That wording will not secure the desired effect. This amendment will enhance the legislation in that context.
I second the amendment.
This amendment would require the agency or a local authority to publish details of persons convicted of offences under the Bill in a newspaper circulating in the relevant area. I do not propose to accept the amendment. I agree that the publication in the press of details of convictions would have a deterrent effect on offenders. However, it is undesirable to impose an unnecessary and costly obligation on the prosecuting bodies concerned.
Normal press reporting arrangements for court proceedings will apply in relation to offences under the Bill. Section 19 requires local authorities and the agency to maintain a register for the purposes of the Act which will be open to public inspection. The Minister will prescribe the matters to be contained in these registers and it is the intention that details of all successful prosecutions initiated would be specified in the registers. It is our intention that details of all successful prosecutions initiated would be specified in the registers. Accordingly, this information would be available to the public, including members of the press. It will be open to the local and national press to publish whatever information they consider relevant. I consider that the proposed amendments are unnecessary and I ask for them to be withdrawn.
I accept the point about the register which is part of the legislation. Cost should not be an issue if somebody whom the authorities did not know had been convicted and fined reoffends. The person's conviction should be made known in an advertisement in the local newspapers. It is in the public's interest to protect wastelands, waterways and the environment; therefore they must know that a person operating in their area was convicted. Concerned citizens will then watch those individuals even if they are not authorised to do so. This may stop them from reoffending. The opportunity provided in the legislation for local authorities and agencies to be informed is not sufficient. It is just as important for names to be published as it is for people to be convicted. Since people move about, there is an onus on local authorities and agencies to publish the names of those convicted and fined in the local newspapers. That might be as good as a conviction.
Amendment put and declared lost.
I move amendment No. 7:
In page 27, between lines 5 and 6, to insert the following:
"(c) failure by a local authority to make a plan as may be prescribed within the time set down shall be reported by the Minister to both Houses of the Oireachtas.".
The Minister must deal with certain provisions in legislation once it is passed by the Houses of the Oireachtas. However, the Houses of the Oireachtas are excluded after that and the Minister is not legally entitled to report back to them. The implementation of the legislation is important as far as the Houses are concerned. While it is our primary function to legislate, it is also important to know how it operates. We should include a provision that the Minister of the day must report back to the Houses of the Oireachtas, which can then decide if amending legislation is necessary. Some time ago, for example, a Bill dealing with drainage works by the Office of Public Works was passed, but within months we had to introduce further legislation to amend it. I am sure a lot of legislation is difficult to implement, but the Houses of the Oireachtas may not be aware of that unless someone brings it to their attention. The Minister should be responsible for reporting back to the Houses.
We are dealing with the failure of a local authority to make a waste management plan. If a local authority fails to make a plan, which is specified in legislation, it should be reported to the Houses of the Oireachtas. There seems to be confusion about this issue because some local authorities have already drawn up waste management plans. If local authorities fail to make such a plan, it should be reported to the Houses so that we can deal with it.
I second the amendment.
I have given a good deal of consideration to this matter, which was debated at length on Committee Stage. I cannot accept the amendment because it seeks to impose on the Minister an inappropriate supervisory and reporting function in relation to the actions of individual local authorities. It is inconsistent with the general framework for enforcement of environmental protection legislation and, in particular, the statutory role of the Environmental Protection Agency in relation to the performance of functions by local authorities.
During the discussion on Committee Stage the Minister of State, Deputy McManus, set out in detail the supervisory role of the Environmental Protection Agency under section 63 of the Environmental Protection Agency Act, 1992, which gives the agency significant powers to ensure the satisfactory performance by local authorities of their statutory functions in relation to environmental protection. This clearly includes functions imposed under this Bill. It would not be appropriate to interpose the Minister between the agency and local authorities in relation to this specific function. There is no precedent for such a provision in relation to any obligation imposed upon a local authority and I am, therefore, unable to accept the amendments. Contrary to assertions by Senator Fitzgerald during Committee Stage, I am informed there is no provision in the Harbours Bill, 1995, equivalent to the proposed amendment. I ask for the amendment to be withdrawn.
I understood the Harbours Bill, 1995, dealt with waste on boats and had to be dealt with on land by the harbour board. I do not want to go into that area now.
I understand the explanation given by the Minister of State to some extent. I also appreciate the involvement of the Environmental Protection Agency and I was present in the Chamber when that legislation was debated at length. I agree with the Minister of State that we do not want too much cross involvement or undue interference. However, I am worried we could have a situation where independent republics would deal with matters for a long time before they would come before the Houses of the Oireachtas, which would cause major damage. While I appreciate what the Minister said, this legislation is letting local authorities off the hook to some extent. However, I accept he has difficulties with this and he cited the Environmental Protection Agency as having a role in that area.
Amendment, by leave, withdrawn.
I move amendment No. 8:
In page 31, line 19, after "scribed" to insert "and not later than one year".
This is a very realistic amendment which asks the Environmental Protection Agency to make a national plan inside a specific period of not later than one year, which is a reasonable period. Unless the Minister of State has a good reason why that should not be the case, it should form part of the legislation. We must attach a time scale to the provisions we legislate for, otherwise we could be here every day until midnight passing reams of legislation which would be left in the various Departments. It is important to set targets and deadlines for legislation which covers the environment, waste management and so on, in particular. One year seems a realistic deadline.
I second the amendment. This area may prove controversial as we are probably in breach of EU guidelines in this regard because we export hazardous waste. It is a very sensible amendment because unless we decide a time scale for tackling this problem, which will require a great deal of courage and decisiveness, we will avoid the issue until we are forced to deal with it. Accepting Senator Finneran's amendment will give an indication of how serious we are about dealing with hazardous waste.
This amendment seeks to impose a time limit of one year with regard to the making of the national hazardous waste management plan by the Environmental Protection Agency. While I appreciate the sentiment underlying this amendment, I am not prepared to accept it as it would be unduly restrictive. A period of one year would not be adequate for the making of the national hazardous waste plan. This plan will be very detailed and extensive in its scope and will require considerable research, public consultation procedures and input from various sources.
A minimum time scale of 16 to 18 months will be involved in the making of the national plan. It will involve the request for tenders, selection of consultants, preparation of a draft plan, carrying out of necessary public consultations, revision of the draft plan as a result of those consultations and the making of the final plan by the agency. It is a detailed and lengthy process and it would be impractical to accept the amendment, although the sentiments behind it are laudable. Reasonable time must be allowed to complete these processes, having regard to the extensive planning process involved. It will take 18 months and there is little merit in seeking to impose a rigid one year time scale or any other rigid deadline. If there is undue delay on the part of the agency in making a plan, it will of course be open to the Minister to intervene and force the pace by prescribing a final date under section 26(1). I ask, in view of this information, for the amendment to be withdrawn.
I understand the difficulty of drawing up a national plan, which is a major task. However, if a deadline is not imposed, this or another Minister will be rapped over the knuckles — possibly from outside the State — in regard to this matter. I tabled this amendment in order to ensure we keep our house in order. The whole area of the environment and hazardous waste plans will become a major issue in future and we cannot take a haphazard approach.
I regret that when the Minister of State said he could not accept the period of one year, he did not say he would not accept a time longer than 18 months. In that way he would have given notice that he is very serious about this matter and will not allow the agency to delay bringing forward this plan within a reasonable time. I know the Minister will have powers under the Act to intervene, but there should be a deadline. I understand the difficulties and that matters can drag on, but we must send a message to the agency that we are serious about this legislation. The Oireachtas spent days debating legislation to set up the agency. There was a great deal of tough talk at that time about how the agency would take over the functions of local authorities and interfere. I did not see it as interference because local authorities and agencies can be very compatible.
This legislation states the agency must bring forward a hazardous waste plan but it does not state how long that should take. That is a mistake and a weakness in the legislation. I will not press the amendment but I urge the Minister to inform the agency of his intention to invoke the section under which he can intervene if it is not moving fast enough.
Amendment, by leave, withdrawn.
I move amendment No. 9:
In page 33, between lines 41 and 42 but in Part II of the Bill, to insert the following:
"(10) (a) Any person may within a period of 21 days make an objection to the Minister in relation to the plan.
(b) Any objection shall—
(i) be made in writing,
(ii) state the name and address of the objector,
(iii) state the subject matter of the objection,
(iv) state the full grounds of objection and the reasons, considerations and arguments on which they are based.
(11) An objection shall be accompanied by such documents, particulars and any other information relating to the objection as the objector considers necessary or appropriate.
(12) A person making an objection may request an oral hearing of the objection.
(13) Where a request is made for an oral hearing of an objection the Minister shall have an absolute discretion to hold an oral hearing and the Minister shall give notice in writing of that decision to the applicant and the Agency.
(14) The Minister having considered any such objection or oral hearing may require the Agency to vary (whether by addition or deletion) a Hazardous Waste Management Plan made by it in such a manner as the Minister may specify or to replace the plan by a new Hazardous Waste Management Plan.".
This amendment provides an opportunity for a person to object to the Minister about the plan. I have set out a series of avenues a person might take and the objector should make the objection within a period of 21 days. The objection must be made in writing, should include the name and address of the objector and state the full grounds and reasons for the objection.
There must be an opportunity for a person to object and make the Minister aware of the objection. The Minister must provide for that right in legislation. In all planning situations there is an opportunity for people to object and, in this context, it is proper that the opportunity should be set out in the legislation. The amendment also provides for oral hearings and gives the Minister the power to vary the plan. It is not unreasonable that legislation should provide an opportunity for a person who feels aggrieved to object.
I second the amendment.
This amendment proposes to introduce provisions whereby a member of the public may submit objections to the Minister in relation to the national hazardous waste management plan to be drawn up by the agency and may request an oral hearing of such objections. It would empower the Minister to direct that the agency's plans be varied or replaced. I am not prepared to accept the amendment.
With regard to the independent status of the agency and its singular expertise for sound environmental management of hazardous wastes, it is not appropriate to provide in this Bill for a system of direct ministerial intervention or oversight of the agency in the performance of its planning functions. There is provision in section 26 of the Bill for public consultation and input regarding the draft hazardous waste management plan. Having considered public representations made at that stage, the agency has legitimate discretion in finalising the national plan.
The Minister is empowered under section 60 to give general policy directions to the agency with regard, among other things, to the making or review of the hazardous waste management plan. This level of ministerial input is adequate and appropriate.
There may be a difficulty as far as the public is concerned because it is assumed that the agency has all the wisdom and, while it is obliged to have public consultations, at the end of the day it makes the plan and the ordinary person does not have the opportunity or the structure to make an objection. While we need agencies, hazardous waste plans and so forth to protect our environment, we also must ensure that the ordinary person has the opportunity to object to some person or body about such plans. Under the amendment the objection would be made to the Minister, who in the final analysis could ask the agency to vary the plan. If that is not possible, where is the protection for the person once a plan is made?
When drafting a county development plan there is a structure to deal with this matter. Can the Minister show where there is protection for the individual? Is the individual's right to make a case, other than during consultations before the plan is drawn up, being protected? Is there redress for the individual once the plan has been finalised by the agency?
The public has the right of input in the consultation process. The agency, in the public interest, will take the public's views and input into consideration when formulating the plan. Everybody cannot be kept happy at all times but I am sure the agency will produce a fair final document.
Amendment put and declared lost.
I move amendment No. 10:
In page 43, between lines 37 and 38, to insert the following:
"(d) not hold, recover or dispose of waste in a manner which causes, or is likely to cause, environmental pollution.".
This amendment refers to a local authority. It might appear that the amendment is unnecessary, but there is good reason for proposing it. Local authorities might believe that they have an extra latitude due to the fact that they are local authorities. That should not be the case — they should not be involved in this matter.
On Committee Stage I referred to my local authority, which, as a result of a fire in a meat factory, had to dispose of tons of meat. It became a major controversy because local people objected. The difficulty was that the manager was on his own and had to act because he was the sanitary officer. He had no choice and I supported his action at the time, as did many of my colleagues including the Leas-Chathaoirleach. If he were to do the opposite, which many people thought he should have done, and carry out a holding operation until he had gone through all the processes the danger would have been far greater. He had to act.
Under this legislation will a local authority be able to dispose of waste in an emergency in the interests of public health, although it could be proven at a later date that the environment was damaged as a result? We should try to prevent that happening. This amendment seeks to ensure that local authorities cannot dispose of waste which will damage the environment.
I second the amendment and I support the points made by Senator Finneran. This amendment will not only protect the environment but it will also send a clear message to local authorities that it is unacceptable to deal with waste in a way which could damage it. The record of most local authorities is abominable in this area. I am a member of a local authority and the Dunsink tiphead is in my electoral area. If one asked the people in Finglas if the maintenance and management of that landfill site helped to protect the environment, the answer would be no. An adjoining local authority is the worst polluter of the watercourse running through the area in which I live. I do not know if the actions of local authorities are dealt with in other legislation, but this Bill is important in that regard. It has been long awaited not only by local authorities but by residents, although they have not greeted it with enthusiasm. If we fail to recognise that local authorities are major contributors to pollution in watercourses as a result of the way landfill sites have been managed, we miss the point.
This is a good amendment. If the Minister is not willing to accept it, perhaps he could indicate that he understands its purpose. As a local authority member for 11 years, I know that people are becoming increasingly concerned about the manner in which local authorities do their business. I ask the Minister to accept the amendment.
I understand what the Senators are saying. However, this amendment would provide that a local authority may not hold, recover or dispose of waste in a manner which causes or is likely to cause environmental pollution. The amendment is unnecessary. Section 32 (1) already prohibits any person from holding, recovering or disposing of waste in a manner which causes or is likely to cause environmental pollution. The word "person" is defined in the Interpretation Act, 1937, as any body corporate. That includes local authorities. The word "person" in this context includes a local authority, therefore the position is clear in this regard.
Is it in order for me to speak?
An Leas-Chathaoirleach
No, because we are on Report Stage and only the proposer has the right to reply.
I accept the Minister's explanation that under section 32 (1) a "person shall not hold, transport, recover or dispose of waste in a manner that causes or is likely to cause environmental pollution". He said that a person is also defined as any body corporate, which includes local authorities. I will withdraw the amendment.
An Leas-Chathaoirleach
Senator Sherlock could have spoken before the Minister replied.
Tuigim. Go raibh maith agat.
Amendment, by leave, withdrawn.
I move amendment No. 11:
In page 86, to delete lines 39 to 44.
Section 66 amends the Local Government (Water Pollution) Act, 1977. I want section 67 (1) deleted because we are letting local authorities and the Environmental Protection Agency off the hook. I do not understand why they should not be liable for injuries caused to any person. What makes them special in this regard?
Local authorities and the agency must implement legislation and they have the authority to do certain things. If they fail to carry out their duties, they should not be protected by legislation from being found guilty and fined. We are giving out the wrong message to the agency and to local authorities who have a duty to perform. We should not include provisions, such as those in section 67(1), which exclude them from facing their responsibilities. I do not understand why we should include provisions to protect people "in respect of any injury to persons, damage to property or other loss alleged to have been caused or contributed to by a failure to exercise any power or carry out any duty conferred or imposed on the Agency or local authority by or under this Act". If we give them powers under this Act, they have a duty to carry them out. Failure to do so should result in them being charged for negligence or being made to pay for damage or loss.
We are constantly making excuses for agencies and authorities and allowing them to escape the law. I support this Bill but we take away from it by including such provisions which let certain authorities off the hook. It is the responsibility of the agency and the local authorities to implement the powers we confer on them. If failure to do so results in loss or damage, they should be brought to court and fined. This is the kind of message we need to send to agencies and local authorities that have responsibility in this area. We are concerned with the environment and the management of waste. Derogations should not be the order of the day. I hope the Minister will accept the amendment.
I support the amendment. We should send a clear signal to local authorities. The message sent to them in section 66 condones their actions, regardless of whether they get it wrong. The legislation also suggests to those operating waste management facilities that it shall be a good defence to say they have done the best they can. This worries me.
We have produced a good Bill but if those responsible say they have done the best they can, they will be exonerated from wrongdoing, while section 67 allows for failure on the part of local authorities or the Environmental Protection Agency to comply with the regulations. These are major flaws and will be exploited. The amendment should, therefore, be accepted.
With regard to the points raised by Senator McGennis, there are similar provisions in previous legislation to which I will refer later. I cannot accept this amendment. Section 67 (1) provides for an essential level of protection for the agency and the local authorities against unwarranted and inappropriate litigation. The proposed amendment is based on a misunderstanding of the purpose and effect of the section.
Section 67 (1) does not protect the agency or local authorities from any claims made against them for wrongdoing on their part. It does not give them immunity against negligent performance of functions or improper activities. The subsection does not, for instance, give any protection to a local authority with regard to water pollution or damage to fisheries attributable to the actions of a local authority. It would remain open for any person to sue the agency or a local authority on these grounds, or on any grounds which demonstrate that a person has suffered personal injury, loss or damage to property as a result of the actions of the agency or an authority. In such a case, the onus of proof would be on the plaintiff.
Section 67 (1) provides that the agency or a local authority shall be immune from any legal proceedings arising from an alleged failure to perform its functions under the Act in any specific case. This provision reflects the broad range of functions under the Bill. If this immunity from legal action was not provided for the agency and local authorities, they could be exposed to an unlimited succession of damaging law suits arising from any incident, personal injury, damage or loss arising from waste activities, even though they had no involvement whatsoever in the activities in question.
Given the doctrine of joint and several liability which applies in Irish law, they could be joined in any such action and would, in practice, be more accessible to penalty than a polluter. It would be unfair and inappropriate to penalise these bodies for matters in which they were not involved. For example, Mr. or Mrs. A hold liquid waste on his or her land or premises. They dispose of it carelessly on their own land in a manner which pollutes a well owned by Mr. B. The owners have previously committed a criminal offence and have also injured property owned by Mr. B and are open to action for damages. It would not be reasonable to suggest that the agency or the county council would also be liable for damages suffered by Mr. B. It would be open to Mr. B to argue, however, that he would not have suffered damage if an authorised officer of the county council had inspected the premises of the polluters, had detected the waste and taken action to remove it from the premises — it is empowered to do so under section 56. It is necessary, therefore, to protect public authorities from being joined in such actions. This gives rise to the immunity provisions, such as section 67 (1).
Provisions similar to this section are common in legislation governing the activities of statutory bodies. Section 15 of the Environmental Protection Agency Act, 1992, provides for similar indemnification of the agency with regard to duties and functions arising under this Act. It is important that there be consistency between these two important environmental statutes. There is further recent precedent in the Safety, Health and Welfare at Work Act, 1989. I ask, therefore, that the amendment be withdrawn.
As this is my last opportunity to speak, I wish to clarify a number of issues that arose on Committee Stage. Senator Daly asked if section 9 covered offences committed by a local authority. Local authorities, being bodies corporate, are covered by section 9. Accordingly, where an offence is committed by an authority with the consent or connivance of a senior officer of that authority, or is attributable to neglect on the part of such a person, that person, as well as the local authority, shall be guilty of an offence.
With regard to section 19, I wish to clarify the position regarding registers to be maintained by the agency and local authorities. Senators expressed concern that there may be overlap or confusion regarding the registers. This is not the case. Section 19 provides for the establishment and maintenance by each local authority and the agency of a register containing such information as may be, from time to time, prescribed by the Minister. Accordingly, there will be 35 registers in total, one register maintained by the agency and one by each county council and county borough council.
The registers to be maintained by the agencies, on the one hand, and local authorities, on the other, will contain different information in many respects and will reflect the different functions of these bodies under the Bill. The local authority register will contain information relating to the functions of that authority and with regard to certain waste activities carried on in the functional area of that authority. This might include, for example, information on waste collection permits issued by the authority, by-laws made by they authorities, information on court proceedings, notices served on, or other enforcement actions taken by, the authority.
Generally, a local authority register will relate to local activities. On the other hand, the agency register will mainly contain information with regard to the activities of the agency or activities with regard to which the agency has a function. This might include, for example, information on applications made for waste licenses or applications for consent to import waste. These activities may be based in any part of the country. In this respect, the agency register will have a nationwide scope.
However, the agency's register is not, in any sense, intended as a master register and will not duplicate information already contained in local authority registers regarding the functions of these authorities under the Act. These arrangements will clearly distinguish between the responsibilities of local authorities and the agency with regard to the keeping of registers, and the information to be contained in the registers maintained by different bodies.
Section 44 deals with the publication of reports of oral hearings. On Committee Stage on 21 March, the Minister, in response to a query from Senator Daly, undertook to elaborate on Report Stage on the position regarding publication of the outcome of oral hearings held by the agency under section 42. I wish to confirm that reports of oral hearings will be published, as is done at present by the agency with regard to oral hearings under the Environmental Protection Agency Act, 1992. As is the case under this Act, there is no explicit provision in the Bill for publication of reports of an oral hearing conducted by the agency in relation to an application for, or the review of, a waste licence. The agency has indicated, however, that all such reports will be public documents. When a final decision is made by the agency on the grant or review of a waste licence, a copy of that decision, including the report of any relevant oral hearings, will be available for public inspection. Copies of the reports of oral hearings and decisions of the agency will also be available to the public at a reasonable charge. It would be possible for the Minister to make regulations under section 45 (2) to require the agency to publish reports of oral hearings but I do not expect that this will be necessary. No oral hearings have yet taken place with regard to licence applications under the 1992 Act.
I remember the debate on the Environmental Protection Agency Act, 1992. I am of the opinion that there is a devious reason for inserting such provisions in legislation and that this results from the fear that a local authority or the agency may say in court that the Minister failed to provide it with funds to carry out a certain task. What is wrong with the agency and local authorities being brought to court? This happens every day with regard to other matters. I am sure the courts will not find wrongly against local authorities and that they will be as protective of the rights of such authorities as they are of the rights of individuals.
This subsection is a cop out and has more to do with Departments, local authorities, the agency and funding than with anything else. I am sceptical when such a provision is included in the Local Government (Water Pollution) Act, 1977. In many cases local authorities have said they polluted rivers because the Department of the Environment failed to give them the necessary funds for treatment plants or to rectify other factors which contributed to the pollution. To some extent there is a collusion and a conspiracy in this regard, although I am not saying that the Minister is part of this. I believe this angle is considered when legislation is drafted.
However, everybody should be dealt with equally under the law. Under the Bill an ordinary citizen may be fined up to £25,000, but it is extraordinary that cases cannot be taken against Dublin Corporation, Roscommon County Council and the Environmental Protection Agency where injury or damage to property is involved. If cases could be taken against them, the courts would find in their favour if they were in the right. Such a provision has been included in a great deal of legislation and we should get away from this practice. Legislative provisions should apply equally to everybody, including local authorities and statutory bodies. Local authorities and the Environmental Protection Agency should exercise the powers conferred on them and if they do not they should be brought to court.
Question, "That the words proposed to be deleted stand" put and declared carried.
Amendment declared lost.
Bill reported without amendment and received for final consideration.
Question proposed: "That the Bill do now pass."
A comment made by the Minister earlier provoked a response from me about the manner in which local authorities do their business. Senator McGennis also referred to this. I now want to make two specific points.
Section 22 requires local authorities to make plans for "the prevention, maintenance, collection, recovery and disposal of non-hazardous waste within its functional area". It is vital that the Department makes additional finance available to local authorities to enable them to implement these plans. The country is strewn with litter and indiscriminate dumping takes place in our streams and waterways. This situation is getting worse and people must be made conscious of the fact that there is a law with which they must comply. However, first of all local authorities must do their duty.
One Minister said that an environmental impact study was required for all landfill sites, whereas my local authority was told this is not necessary for sites where the amount of refuse being disposed of is less than 25,000 tonnes. Somebody said that because of the impermeable nature of the soil in the site in my area, lime was not required. We were told there is a major water aquifer under that soil and this has frightened people.
I welcome the Bill. It should be brought into operation as soon as it is passed.
I support this important Bill. A number of its provisions need to be monitored and I hope delays in doing so will not emerge. Our environment is important and I hope this Bill will further protect it. I thank the Minister and his officials for the helpful way they dealt with amendments.
I wish to express my thanks and appreciation to the Ministers of State, Deputy Allen and Deputy McManus, and the Minister, Deputy Howlin. This legislation is important and the key to it is that we have a recycling rate of slightly over 7 per cent. The Minister has set a realistic target of 20 per cent for the year 2001. I hope by then we will be able to say this legislation has been part of a process which achieved that 20 per cent rate. If we can do that we will be far closer to European averages, which have been ahead of ours for the past number of years. I congratulate the Minister's officials on the work they have done preparing this legislation and Members who contributed to Committee and Report Stage.
I thank the Minister of State. Deputy Allen, for being here today. I also thank the Minister, Deputy Howlin, the Minister of State, Deputy McManus, and their officials for this long overdue Bill. We are dealing with an important issue and this Bill is necessary if we are to do our job correctly. I hope that when the Bill is passed local authorities and those involved in the protection of our environment will do the right thing. After all, the enactment of this legislation is only the beginning of waste management.
As I mentioned, a seminar on waste management was held in County Cork and a plan was drafted. Recycling and packaging must be done in such a way as to minimise the number of landfill sites. However, we cannot do without landfill sites, which, like so many other things, nobody wants on their doorstep because we are not that careful in disposing of waste and we like to dump it on the local authority. People in an area, including farming organisations, must agree on the location of a landfill site, but that is not easily done. I thank everyone involved in drafting this Bill.
While I welcome this legislation, it falls short of what is necessary to achieve the targets mentioned. I believe 20 per cent is a small target in relation to the reduction of waste. The thrust of the legislation deals with the reduction of and reusing and recycling waste. I support Senator Sherlock's point about local authorities, which was dealt with in amendment No. 67 tabled by Senator Finneran. Unless local authorities are properly financed many things will not be done. The policing of polluters will not occur unless sufficient resources and staff are made available to local authorities. My constituency would mirror that of Senator sherlock.
Recently, I picked up a canvass card which was four years old. My local authority does not have the manpower, staff or resources to ensure that litter is picked up. It would be interesting if residents were to take cases against local authorities because of the filthy condition of housing estates in Dublin and probably in most urban areas. I was not joking when I said that a canvassing card had been lying on the ground for four years. I do not apportion blame to this or any other Government, but local authorities have been under financed by all parties.
Whose canvassing card was it?
It was not mine. Perhaps the Minister can reassure me about the financial implications of such legislation. Far from getting extra funds, the Minister said regulatory costs will be recouped from local authorities and the commercial waste sector. That means local authorities will have to contribute financially to the implementation of this legislation, including the policing necessary to ensure it does the job the Government intends. We have no chance of achieving the high ideals of this legislation — I do not say that in a disparaging way — at local authority level.
While I welcome the legislation, local authorities must receive funding. It may be necessary to oversee that funding to ensure it is correctly spent, because those of us who are local authority members have doubts as to whether money is spent in the correct areas. Such money is not being spent on litter collection or on the management of tips. If local authorities do not get extra funding, there is little chance of County Dublin and elsewhere being tidied up.
I thank Senators who participated in the debate. I was not the creator of the Bill, but I had to carry it through Committee Stage in the Dáil and Seanad, where well informed comments were made and probing questions were asked. I compliment everyone on the work done. Over the years there has been a conflict between industrial development and environmental protection which would not have occurred had this legislation been in place. This legislation, along with the Environmental Protection Agency Act, 1992, will deal with emissions and encourage recycling. They will reduce an unnecessary conflict between industrial development, jobs and the environment. As Senators will know, controversies arose in Cork because of the absence of such legislation.
This legislation will help those on both sides of the argument. Industrialists will have to abide by the rules, while environmentalists will know there are laws to protect their interests. We are all interested in a clean environment. While legislation is important, so too is education. I despair when I see the condition of our streets. Local authorities and the public, particularly parents, have a responsibility in this regard. We can now get on with creating jobs, while protecting the environment.
Question put and agreed to.