Select Committee on Enterprise and Economic Strategy debate -
Thursday, 14 Dec 1995

SECTION 5.

Mr. Gilmore

I move amendment No. 22:

In page 6, subsection (1) (a), lines 34 and 35, to delete "and the Minister for Transport, Energy and Communications" and substitute ",the Minister for Transport, Energy and Communications and any other Minister of the Government that the Minister considers appropriate".

Section 5 (1) (a) enables the Minister after consultation with the Minister for the Environment, Enterprise and Employment and the Minister for Transport, Energy and Communications to grant or refuse to grant a permit for the disposal of a specified substance, material, vessel or aircraft in the maritime area. This consultation process is already in existence under the 1981 Act. Legal advice states that an amendment should be made to the Bill to provide broader consultation where applications for permits to dump at sea impinge on areas of responsibilities of other Ministers.

Amendment agreed to.

Mr. Gilmore

I move amendment No. 23:

In page 6, subsection (1) (b) (i), line 48, and in page 7, line 1, to delete "of a substance or material".

The purpose of the amendment is to correct an editorial error. The First Schedule is entitled "Criteria as to the Grant of Permits for Dumping". In addition to substances and material, these criteria relate to dumping of vessels and aircraft.

Amendment agreed to.

Mr. M. Smith

I move amendment No. 24:

In page 7, subsection (3), line 17, after "appropriate" to insert "including a specific requirement to indemnify the Minister against costs associated with tracing the owner, salvage, etc., where change of ownership, or liquidation takes place".

In issuing a permit, the Minister will have considerable freedom regarding the conditions which may be attached to it. Given sad experiences in the past in relation to, for example, tracing owners of ships which were dumped, it may be proper to consider inserting in primary legislation a specific requirement of the type outlined in the amendment or another provision which might achieve the same result.

Mr. Gilmore

Subsection (3) gives the Minister discretion regarding conditions he considers appropriate to a dumping at sea permit. Legal advice states that, if a specific condition is inserted in the subsection, it could be argued that all conditions of permits should be listed in the subsection. This could preclude the Minister from including such conditions as he considers appropriate to a particular permit at a future date. However, I accept Deputy Smith's point in relation to tracing the owners of vessels who may be guilty. If he is prepared to accept that, in granting dumping permits, consideration would be given to the issues and concerns he has raised about tracing owners of vessels then we can include that in the conditions which are given in a dumping at sea licence. I am, however, concerned about specifically including it by itemising one condition in subsection (3) which is a general subsection under which the Minister can put in any conditions he considers appropriate. If we itemise one particular condition in that subsection the legal advice is that it may undermine the authority to make other conditions under that subsection.

I accept the point Deputy Smith is making and I accept that it has to be considered when granting a permit in the particular circumstances where that would arise.

Mr. M. Smith

I was conscious from the beginning of the freedom any Minister would have to provide adequate conditions attaching to a permit, and that the powers are, perhaps, quite effective but because of the kind of experiences we were unable to overcome, I felt — notwithstanding my reservations — it would be proper to have an amendment to highlight how the Government will deal with people who disown any responsibility for their negligence.

It seems the Minister is prepared to give a commitment which refers only to consideration. For me to withdraw the amendment, he might go further and say that something close to that would be attaching to any permit issued. That would be fair.

Chairman

While the Minister is thinking about that I will call on Deputy Dukes.

Mr. Dukes

If I understand the Minister correctly, his fear is that by mentioning any condition specifically he either rules out the ability to attach other conditions or requires all of them to be mentioned. I can see that point. I think I am right in saying that the problem Deputy Smith wants to address — which is a real problem — is one that arises because of a deficiency or lack of clarity in another area of the law. It is not the law covering dumping that causes the problems, it is a lack of clarity in the law about what happens on changes of ownership. If that is the case, it is perhaps better to deal with it where the problem arises. Alternatively, could the Minister consider some process under which, for example, orders or regulations would be made from time to time laying down the conditions that could be included in licences?

Ms Keogh

Can the Minister state what conditions would be appropriate? Obviously the intention is to give as wide a remit as possible to the Minister in making conditions. A very important point is being made here about tracing ownership. It might be useful if the Minister could place that in the context of other conditions.

Mr. Gilmore

I do not have any difficulty with what Deputy Smith is trying to achieve in this amendment. My only concern is that identifying some conditions that may attach and not identifying others may have the effect of weakening the other conditions that may be attached to the issue of a licence. I am happy to have a look at this between now and Report Stage to see if there is some other way of accommodating it in the Bill. If there is, I would be happy to do something about it on Report Stage.

The questions raised by Deputy Dukes and Deputy Keogh relate generally to the issue of licences and permits. It would not be appropriate to have regulations which set down the conditions that may be applied. As it stands, we have considerable freedom to attach any condition to the issuing of a permit. In practice, if somebody wants to dump they apply for a permit and there is a process of consultation with a number of Departments which may have an interest. A marine licence vetting committee comprising technical people drawn from the Central Fisheries Board, the Fishery Research Centre and so on, examines the application before recommending what type of conditions should be attached to it.

The normal conditions attached to a dumping permit relate mainly to the quantity of the material to be dumped, the time within which it may be dumped, the hydrographic conditions that apply and the monitoring that is required both of the material to be dumped and of the dumpsite itself. Normally, if dredged material has to be dumped, conditions are attached to monitoring the material to assess, for example, if it contains heavy metals, etc. Very often one does not know what is on the seabed until the dredging actually occurs and normally a condition is attached requiring monitoring of the dredged material and of the dump site afterwards to see if there is any impact on marine life. Those are the normal conditions attached to a dumping permit.

Chairman

Is that explanation acceptable?

Mr. Dukes

I note the Minister's reluctance to look at regulations. On the basis of the description he has given, it seems there is a fairly comprehensive procedure to deal with the problems. However, there is one thing lacking and it may just be that the Minister forgot to mention it. Is there any requirement for a result to be given to this process of consideration within a given time? If, for example, an operator seeking a dumping licence has completed all these procedures and the material is found to be suitable for dumping and will not have an effect on the environment, is there any requirement that that decision should be given to the applicant within a specific period? If not, does the Minister not think that there should be?

Mr. Gilmore

There is no requirement to give a decision to the applicant within a specified period. This can vary according to the type of application. Some applications are for very small amounts of material and they can usually be processed quite quickly. In other cases, they may be substantial and may involve considerable assessment of the likely impact on the marine environment and an extensive consultation process. There is no time limit within which a decision can be granted to an applicant. Often a time limit is set down in a dumping permit, in other words, it is not open ended as it sets down a finite date after which dumping ceases. If the applicant wishes to continue after that date, they are required to make a further application. The impact of the previous dumping is a consideration in deciding whether to grant a new or an extended permit.

Mr. Dukes

I am a little worried about this because there is an element of arbitrariness which should not be in legislation. I understand the time limits placed on dumping operations would be in place because there may be seasonal conditions in the area which may affect the dump site — for example, a seasonal variation in a current or a change in water temperature. These are valid considerations which should be taken into account, but if somebody applies for a permit to dump material in a particular location in early summer and the permit which would be given would normally require dumping in that site to be completed before mid-September, a natural breakpoint when people usually become concerned about sea conditions, is not given before mid-August, it could be impossible for the person to carry out that operation, although in terms of the concerns set out in existing legislation and in this Bill, it would be a legitimate operation. I am concerned that there is no provision which gives the applicant a right to have a case dealt with within a reasonable period.

Mr. Gilmore

The machinery through which an application is processed works quite efficiently. The marine licence vetting committee, the body in the Department which assesses these applications in detail, meets monthly. If, for example, an application was made which would have a benign effect, it could be dealt with quickly. We must bear in mind that the principle on which applications are assessed is the precautionary one which is well known in environmental terms. The onus is on the applicant to make the application in sufficient time to enable it to be processed and dealt with. Most dumping operations are usually associated with some other scheme or project which may require other permits, planning permission or approvals.

It is rare that circumstances arise where somebody needs to dump material and requires a permit within a short time. The circumstances in which dumping is permissible are usually associated with activities that are planned well in advance. In the majority of cases, a prudent applicant will make an early application as soon as it becomes obvious that dumping is required. There would then be sufficient time for an application to be dealt with. In my limited experience, I am not aware of any case where a problem arose because a permit was not issued on time and where there was undue delay. There is no backlog of applications for dumping permits in the Department because they are dealt with expeditiously.

Amendment, by leave, withdrawn.

Mr. Gilmore

I move amendment No. 25:

In page 7, subsection (5), line 27, to delete "our" and substitute "out".

This is to correct an editorial error.

Amendment agreed to.

Chairman

Amendments Nos. 26 and 27 are related and may be discussed together. Is that agreed? Agreed.

Mr. M. Smith

I move amendment No. 26:

In page 7, subsection (5), line 28, after "application" to insert "and for the purpose of enabling the Minister to monitor dumping thereafter".

The provisions in section 5 (5) and (6) seem to cover a situation which would enable the Minister to make a charge and to decide whether to grant an application. I am concerned that there should be a power to take account of circumstances where somebody could be monitored to ensure that they meet the conditions provided for in the licence. I am also conscious of our experience as regards rehabilitation costs where significant pollution occurred. There may be unpredictable results and damaging consequences despite the best interests being provided for in the permit. We do not need to go too far back to find such circumstances. For those reasons, my amendments would strengthen the Minister's hand and would provide some cover for an unfavourable outcome as regards costs associated with rehabilitation, the restoration of fish stocks, etc., where something unforeseen occurred.

Mr. Gilmore

Under section 5 (3) the Minister may include such conditions as he thinks appropriate in a dumping at sea permit. The standard condition of all dumping at sea permits is that the costs of any tests, sampling, analysis and monitoring which the Minister for the Marine may require after or during dumping must be borne by the permit holder. Section 5 (5) provides for a fee to be charged when an application is made for a permit, while subsection (6) deals more specifically with monitoring the effects of dumping. It would be more appropriate to include such a provision in subsection (6) in line with amendment No. 27. I accept the principle of amendment No. 27. After consultation with the parliamentary draftsman, I will table an appropriate amendment on Report Stage to deal with Deputy Smith's requirement.

Amendment, by leave, withdrawn.

Amendment No. 27 not moved.

Section 5, as amended, agreed to.