I welcome the Minister for the Environment, Heritage and Local Government, Deputy Cullen, and his officials. As agreed yesterday, we will consider the Bill until about noon, when we will take a short break and reconvene at about 12.30 p.m. and continue until 3.30 p.m. We have provisionally arranged that if necessary, the committee will meet again next Tuesday at 4.15 p.m. Is that agreed?
Protection of the Environment Bill 2003 [Seanad]: Committee Stage (Resumed).
Just one caveat, which I mentioned yesterday. As you know, Chairman, today's schedule in the House includes the Residential Tenancies Bill 2003, on which I am the next speaker. I understand it is likely that debate on the Bill being taken beforehand, the Taxi Regulation Bill 2003, will continue for the day. However, as you know, Chairman, this place is full of surprises, and I would not like to be caught out.
As we said yesterday, if it happens that the main spokespersons are called to the House, we can adjourn. We will all go to the gallery, listen to their contributions and return.
If possible we should avoid clashing with the Order of Business, particularly on Tuesday, the first sitting day of next week. That would be very much appreciated. I do not know who will substitute for us, but whoever it is probably will have to be present in the House for the Order of Business also. If possible we should arrange our timetable so that, notwithstanding other Dáil sittings, we can at least keep that period free.
There is a difficulty. We checked the availability of the rooms yesterday, and it was indicated to us that 4.15 p.m. was the time slot available.
There does not seem to be anything happening at 2 p.m.
We will check that further in the course of the day and discuss it when we come back at 12.30 p.m. When we adjourned yesterday the committee was in the process of discussing amendment No. 28 in the name of the Minister for the Environment, Heritage and Local Government. If memory serves, Deputy Allen was in possession.
I thank the Deputy for that. As I understand it, my colleague the Minister of State, Deputy Gallagher, yesterday gave the committee about three and a half pages of notes on this. Just picking up on one point that Deputy Allen made, this section is not about individuals but about the local authorities themselves complying with the regulations under the law and in the context of how the EPA will interact with local authorities. They must also fulfil their own roles. Many Deputies have made the point that while strong on certain matters, local authorities in many ways can be culpable. This Bill seeks to ensure that local authorities will act responsibly. This section seeks to deal directly with local authorities as opposed to the individuals to whom Deputy Allen may be referring under other sections.
It is recognised that the new section 63 must continue to reflect the concept of partnership as the preferred approach. In its work, the EPA must be conscious that local authorities have many responsibilities. A balance, therefore, must be struck between the varied demands on their resources and the need to protect the environment. That is the balance we are trying to achieve. It would be unacceptable that local authorities could be somehow excluded from proper procedures and legality under the aegis of their responsibilities with regard to the environment.
If charges of €600 to €700 were imposed in line with the economic rate and the citizens in that local authority area were to refuse to pay with the result that their refuse collections would be terminated and refuse would accumulate outside the doors, would this amendment put pressure on the local authority to take action against those householders?
No, not specifically. Deputy Gilmore made the same point, so I will take the two questions together.
There was a debate on Committee Stage yesterday about how the Bill effectively gives power to local authority managers instead of democratically elected representatives. That will cause significant difficulties in terms of public acceptance of decisions. To a certain extent, this section shows how the democratic changes occurring are even more significant than we thought.
In essence, we are not seeing local authorities making decisions through the manager or an elected representative. We are moving towards a centralised system of waste management. As a councillor involved in waste management processes, it was immediately apparent to me that when we came under pressure in this area, the same pressure was applied at the same time and in the same way across the country. There was much talk of local authorities not taking on their responsibilities, failing to meet their commitments and being unwilling to make hard decisions. No decisions were made because the matter was already a fait accompli which came down from central Government and was applied across the State. We were shackled with the same type of solution regardless of individual local conditions. It did not matter how much we debated the matter at local authority level. A decision had been made at central level that incinerators would be put in place throughout the country irrespective of whether the local authorities played ball. This legislation is carrying out that process.
I have no problem with an agency, such as the EPA, monitoring standards and assessing the environmental pollution records of local authorities. However, the reality is a centralised Government decision on certain waste management policies throughout the country, regardless of local conditions. A central agency, namely the EPA, will be in charge of this. This is a diminution of local authority power. We may as well get rid of the local authority structure because it will be a mere implementation tool. No strategic decisions are being taken at local authority level. That is not the right way forward because different circumstances prevail in each local area. One gets good decision-making with the involvement of people on the ground who know the local circumstances. The Minister for the Environment, Heritage and Local Government has wiped out this possibility.
I fear that this section expresses that the real authority here is the EPA. Whatever the local authority decides to do, this sanction applies. We are moving towards a centralised system. I wonder what the local authorities will do in the future. The managers, too, will be affected as they will be continually looking over their shoulders at central Government. If this is Government policy, so be it. However, I would prefer if the Government were honest about it, rather than blaming the local authorities for a lack of responsibility, which is not the case in my experience.
This is a significant amendment proposed by the Minister for the Environment, Heritage and Local Government. As Deputy Allen said, we have not been given a great deal of notice to consider it. In some respects, I see where it is going and I have some sympathy for that.
We all acknowledge that local authorities in many cases contribute to pollution, either directly by being polluters themselves or indirectly through an inability or unwillingness to deal with pollution. The classic example is where a local authority discharges untreated sewage into a water system. Another example is where a local authority does not comply with its obligations under the Litter Pollution Act 1997 to keep roadways and open spaces free of litter or where it does not follow through on a complaint about some pollution problem.
The general principle of the EPA being a body to which the public can appeal, or to which it can draw attention to a failing on the part of a local authority, is a good one. However, we need to think through its implications. This amendment will result in the EPA being flooded with complaints from the public about failings on the parts of local authorities. Every time a road is not swept, someone will contact the EPA to tell it that the local authority is failing in its obligations under the Litter Pollution Act and to ask it to issue a direction to have the road swept.
In Dún Laoghaire, there is the example of a temporary sewage treatment plant put in by a developer 15 years ago which is to be connected to the main drainage system. In the meantime, it stinks to high heaven whenever there is a spell of fine weather. The local people are damned with it and contact me and the local council. If this amendment comes into operation, they will be on to the EPA's offices in Wexford asking for a direction to be given to the local authority. That scenario will be multiplied all over the State.
In some cases, local authorities will face inspection and direction by the EPA with regard to matters on which they are dependent on the Department for funding or approval such as a sewage or water treatment plants. A scenario could arise where there is a water pollution problem and the Department has not yet given approval for a project to deal with the problem. The local authority will be caught between directions from the EPA and its inability, due to lack of resources, even to provide the information requested or to deal with the problem.
The idea of the EPA being in a position to deal with a local authority in the same way as an industrial plant is good. It is fine that the EPA can give directions on pollution, seek information about discharges or deal with non-compliance with the provisions of the Litter Pollution Act. In practice, the EPA will receive a large proportion of complaints from the public that normally come through us as public representatives. I have no problem with that; I could quite happily shed a lot of that load to the EPA or to anyone else. The local authorities, in turn, will be inundated with requests from the EPA for information on all kinds of matters regarding the performance of their functions. This will generate a huge paper exercise as local authorities try to cover themselves from possible direction or possible prosecution under the legislation.
The other matter which puzzles me a little is where the section states that a local authority shall be guilty of an offence if it fails to comply with a request under the relevant subsection, or fails to comply with a direction under some other subsection. Where will that leave us? Who will be guilty of the offence? Will the county manager be fined or subjected to a prison sentence? What will it mean in practice? Who will be prosecuted or how will a prosecution be brought against a local authority in a regime which provides for penalties such as fines and prison sentences?
In general terms, the Minister's idea is a good one in that the EPA would have a supervisory role, so to speak, over what local authorities do regarding the protection of the environment, whereby it can issue directions, and relate to local authorities in a general way, much the same as it might to any other body. However, I believe it will give rise to practical implementation problems which have not been thought through in terms of their impact on the time and resources of local authority staff or indeed of the staff of the EPA.
If, in the future, there is an incident of pollution in a local authority area, a member of the public might for example telephone the local authority to make a complaint. Will the local authority then pass on all complaints to the EPA and advise the public to contact the EPA rather than the local authority? Will it be like dealings with An Bord Pleanála, when appeals at that level are entirely out of the hands of the local authority? Will it again take decision-making farther away from the people in the area, rather than maintaining it with them? Will the local authority no longer have to take action when complaints are made, unless approached or directed by the EPA?
The answer to Deputy McCormack's questions is "no". He has turned the matter the wrong way around. Deputy Gilmore is broadly correct in what he has said about the section. There are statutory obligations on every local authority. The EPA is an independent body set up to act on behalf of all of us in the State.
Deputy Gilmore has identified a couple of obvious problems. If one were to land the entire tome of legislation on the desk straight away, problems could result. We want to take a graduated approach with the local authorities. We must first set out with them - as the EPA is doing - a whole environmental management system, agreed between the EPA and the local authorities, in order that the latter can work to a certain standard to carry out their own statutory functions. The EPA is there to assist them in that. This is where the breakdown of functions comes into play. The best example is the Wicklow situation, a very good example of where the EPA should be in a position to act in a case where the local authority had not acted. The EPA can become involved in such a situation.
Members of the public make lots of complaints all the time. This will not be something new. There may well be an increase in the number of complaints from the public. We will welcome this. If there is a flood of complaints, matters will obviously have to be prioritised in order to first attend to the more serious and damaging activities that might be going on.
Local authorities, however, have statutory obligations with regard to noise, air and water pollution, and so on, and one must work out a standard. We are starting that process and my Department is providing the funds; I do not expect local authorities to do this work using their existing resources. The money to set up the environmental management system is being provided from the environment fund. This is currently being rolled out with the local authorities by the EPA and will, in time, provide the data on local authority environmental performance. The local authorities welcome this. In due course, the system may reveal a lack of attention on certain issues, but will equally demonstrate where all of this is moving in the right direction.
If one looks at the provisions of the Bill, the first step will be to issue such advice and recommendations to the local authorities. We are working with them to do that. The provisions recognise that the system currently in place is neither competent nor good enough to carry out the business required.
The other elements coming down the line relate to issues such as those Deputy Gilmore raised, for example, the possibility of the county manager being sued. We hope we never get to that point. It would obviously be as a body corporate that such challenges would be made. That is the end game. There are a great many important steps to be taken before that. The real question we must ask ourselves is whether we are going to do this. This is not about centralising power. The statutory functions of the local authority will now be monitored in the same way as many other bodies - IPPC licensing, for example, which local authorities do not have. We want to ensure that the local authorities are operating in line with a lot of these other statutory functions, so that there is a body acting on our behalf, monitoring what is happening.
Of greater significance is that matter of assisting the local authorities to function in this area. I acknowledge that much legislation has come in by way of EU directives. This has come through the Dáil and the Seanad, and much of it must then by implemented by local authorities, which in many cases do not have the means, resources or understanding to implement it. We need to rectify that and, in doing so, we will provide the required resources.
Equally, there are responsibilities which local authorities themselves need to exercise. We are talking about broad statutory functions, not switching away from the local authorities, but the opposite. This is about ensuring that the local authorities themselves carry out their statutory functions. The 87 local authorities do not all have the expertise and competence to do this, and getting the EPA to work with them to put in place an environmental management system in order that there are certain touchstones, templates and standards by which they must operate will assist them greatly in fulfilling their statutory obligations. That is what this section is about.
I understand there are certain activities which the EPA does not have the statutory authority to investigate or examine, specifically the IPPC licensing arrangements. What sort of activities would not or could not currently come under the scrutiny of the EPA, but could do so under the new legislation?
Air pollution, noise pollution and waste permitting have not previously come under statutory rules and will now do so. It is very much a matter for the local government system, to look after these areas. I accept the comments made. We cannot just lob this legislation in and insist that people comply with it. The expertise is not there. We are, therefore, charging the EPA with rolling all of this out with the local authorities in a proper process over a period of time. I recognise that it cannot all come together perfectly overnight. What we have to do, however, is put in place systems, standards and a level of co-operation from the experts to assist the local authorities to do that. Over time and when all the systems are in place, that will show up the fault lines in the system and help local authorities identify the areas to which they need to turn their attention and where they are successful.
Is the Minister saying that the only people who police noise pollution, for example, in the local authority areas are the local authorities and that there is no one to turn to other than the local authorities?
Yes, but the major licensing activities require licensing from the EPA. The local authorities have responsibility also in this area. That is what I want to copperfasten in the legislation while also recognising that I have to get systems in place to assist them to do that. I do not have that expertise. Those in the EPA are the people with the expertise. The new office of enforcement in the EPA will form part of that function and work with them to get all this achieved.
The Minister said he is looking for a central agency to give advice to local authorities and strengthen them to give them the best standards. Going back to the concern I raised about the waste management plan period of 1998 to 2000, the one consultant was used throughout the country. The same process was engaged in and the same answer arrived at in terms of the technologies we needed. Was the Minister happy that each local authority - the regions in this case - was using the same process, the same consultant, and coming to the same conclusion?
I am more comfortable with the Minister's amendment following his explanation of it. The idea of there being a means of obliging, forcing or ensuring that local authorities fulfil their statutory obligations under various environmental legislation is a good one because there have been many examples of local authorities not distinguishing themselves in some cases by the degree to which they have implemented or fulfilled their statutory obligations in respect of the protection of the environment. My main concern is how it will work in practice. The Minister said he will provide funds from the environment fund for the setting up of environment management systems. Perhaps he will indicate to us the level of funding that will be provided. For example, in a medium sized local authority, how will it work out in practice? How will it translate in terms of additional money or staff on an annual basis to implement this measure?
The Minister has confirmed that the amendment will cover the local authorities' statutory obligations under the Litter Pollution Act. While most local authorities manage to produce the litter pollution plan, the documentation and so on, their statutory obligations to keep the roads swept and public places clean of litter have not been fulfilled. Practical difficulties arise with the fulfilling of that responsibility in terms of resourcing, staff and so on, but it is a statutory obligation that is not being met. I can see great advantages in having a regime whereby local authorities are obliged to meet that statutory obligation but I can also see how local authorities will have difficulty doing so at a practical level. Will the Minister clarify what moneys are being made available and confirm that the Litter Pollution Act will be covered by it?
The Deputy is absolutely right on the Litter Pollution Act, which is a very good example in all towns. For the first time I have set aside €5 million - I think I gave the Deputy the figure previously - this year for setting up all the systems. Obviously, there will be much more funding for the environment over the next few years. There are 87 local authorities with differing responsibilities, although obviously we need to deal with the large local authorities first. We have put enormous resources into IT systems etc. in local government. This will form a specific part in terms of these management systems but I am determined it will not fall down for lack of resources. The resources will be available to do this, and I have told the authorities that. It is only fair that we take a proper approach with the local authorities to help them through this, and there is an enthusiasm for it. There is already a sharpening up in the public's mind about this issue but the Deputy is right on the litter pollution aspect as well.
Let us look at it this way. The major IPPC licensing, which we are shifting to, is the major aspect. The EPA directly licenses all the big firms, companies and industrial activities. Effectively, this is about the non-IPPC side, where licensing is not needed, and the statutory functions of the local authorities at that level across the system on this area. It is empowering the local authorities, some of which have advanced well.
I want to ensure - Deputies Ryan and Allen referred to this - a more even approach to this area across all the local authorities. I would like to see all of them at the best practice standard. I have listened to councillors and some local authority officials on the lack of resources and ability to implement much of this measure. I will provide the resources and the expertise to put it in place, recognising the deficiencies at a certain level which prevent them from doing it. We will then help them in terms of staffing resources to work with this measure. There is a roll-out process and, by and large, this aspect of it is welcomed by the public.
The Minister did not answer my question on the reason we are using the same consultant.
My apologies for that, Deputy. It was open to the local authorities to choose whomever they wanted. The company chosen was chosen on merit. It was probably the leading expert as perceived by whomever took them on as consultants. I know from my experience in this area, certainly in trying to resolve many of the flooding problems experienced previously, that there was a lack of companies with this kind of expertise. It is not an expertise that is readily available. I would like to see more competition in that area but there appears to be more competition now from the United Kingdom and Europe. These are the choices that the authorities made.
Surely it is not a coincidence that every local authority in the country agreed on the same process and made the same decision using the same consultants. The report could almost be photocopied.
Not all of them used the same company, but it was a matter for them. I did not sit at the council meetings. I was a councillor in my own council area when that particular company was employed, and it was found to be very good.
As far as I was aware only the one company was involved.
No. A different company was used in Cork.
The rest of the country was the same.
No. Another company covered the south-east. There was some variance in it.
I move amendment No. 29:
In page 15, before section 12, but in Chapter 1, to insert the following new section:
"13.-The following section is inserted after section 81 of the Act of 1992:
'81A.-(1) The Minister may, for the purposes of environmental protection, make regulations providing for the carrying out by the Agency or a local authority of environmental inspections in connection with the performance of a statutory function of the Agency or a local authority in relation to environmental protection.
(2) Without prejudice to the generality of subsection (1), regulations under this section may make provision for all or any of the following:
(a) the organisation and carrying out of environmental inspections,
(b) the preparation of plans for environmental inspections, the procedures to be followed in the preparation of such plans, the scope and contents of such plans, arrangements for their review, and the period in respect of which they are to apply,
(c) the frequency of site visits and the matters to be examined in the course of such visits,
(d) the preparation of reports following site visits and the making of the reports publicly available, and the time within which each of those things is to be done,
(e) the investigation of incidents giving rise, or likely to give rise, to environmental pollution.
(3) In this section-
"environmental inspections" shall be construed in accordance with European Parliament and Council Recommendation of 4 April 2001 providing for minimum criteria for environmental inspections in the Member States(1);
"local authority" has the meaning assigned to it by the Local Government Act 2001;
"site visit" means a visit to a site at which there is being, or has been, carried on any activity (whether an activity within the meaning of this Act or not), being a visit which the Agency or the local authority, as the case may be, may make in exercise of the powers conferred on it by any enactment (other than this section).'.".
This amendment provides for implementation in Ireland of possible future EU legislation on the carrying out of environmental inspections. For some time, work has been under way at EU level on ways to secure better implementation and enforcement of EU environment legislation. One of the results of the work to date has been an EU Council and Parliament recommendation on minimum criteria or standards to be followed by competent authorities in carrying out environmental inspections. In a sense, this EU initiative reflects our concern about securing better environmental implementation and enforcement. In terms of the current position at EU level, the relevant recommendation provides for the Commission to review its impact and to consider the need for further Community legislation in the area.
While we should not prejudge the outcome of the Commission's ongoing work in this area, it is prudent to include in the Bill appropriate powers to make regulations to implement any future directive in this area. Accordingly, the section provides for the making of appropriate regulations and details matters which may be included in such regulations. Regulations may cover matters such as the preparation of plans for environmental inspections, site visits, the preparation of reports following such visits and making such reports publicly available.
I have no difficulty with the amendment proposed by the Minister, but I wonder whether its effect will be to improve the process rather than the product. It is all very well to have a streamlined inspection regime on paper but what is required is effective inspection on the ground.
In discussing the previous amendment the Minister made reference to Wicklow where over the past year or year and a half a series of illegal dumps were discovered, an issue this committee has examined. We do not yet know the full extent of illegal dumping in that county. The information available to us at this stage is that it appears there was systematic, organised, commercial illegal dumping of waste on sites in County Wicklow, and it beggars belief that nobody knew about it. The county council, which has statutory responsibility in this regard, only discovered it on a piecemeal basis and, apparently, only after it was drawn to its attention on a number of occasions. It complained that it does not have the resources and personnel to do the inspections that are required. The pace at which investigations of illegal dumping are proceeding in that county appears to be very slow. The owners of the dump sites claim they never knew lorries were going into them. They say they did not see or hear anything and that it came as a great shock to them to discover they had material which was dumped illegally on their sites. We do not know where stands some of the companies which did the dumping, some of which, we are told, are substantial operators. Outside of that, we still do not know if illegal dumping was confined to County Wicklow or if there was significant illegal dumping in other parts of the country. All of that arose not because of an inadequacy in the process because such dumping is illegal and local authorities have a responsibility to establish if it is taking place and to do something about it. It happened because either the local authority concerned did not have the resources to keep on top of it or turned a blind eye to it.
It is all very well to have the procedure and process in place, which I favour, and to have standards of inspection, but what really matters is whether the inspections are taking place in practice. It has been some months since the Chairman agreed to have a hearing here, which was successful, on the illegal dumping problem in Wicklow. It would be useful, in the context of this amendment, if the Minister would update the committee on his knowledge of the progress of investigation of that illegal dumping, the extent of it, whether prosecutions will be taken and, if so, at what level will they be taken because the other problem is that many prosecutions taken to date were brought to the District Court where the fine is only €2,500 or whatever. That fine could be paid with a few trucks of waste.
I am concerned about the effectiveness of local authorities in dealing with the problem of illegal dumping. One of my most recent experiences concerned a report I got from a colleague about a lorry taking waste, I presume illegally, to Northern Ireland. It started its journey in Cork on its way to Northern Ireland but overturned in the midlands. I contacted the county council in Cork to find out what action was being taken. That was months ago and I have heard nothing from the county council. I wonder if any action was taken. The driver ran away through the fields and left this lorry and its load overturned on the side of the road. Obviously it was waste being transported to Northern Ireland. I have not heard anything about it since. Is the Minister satisfied that local authorities have the will and the capacity to be vigorous in their pursuit of those who are breaking the law?
I welcome the amendment. Does mention need to be made in the amendment of the right of the agency to make an unexpected visit? Does wording to provide for that need to be included?
It is included.
The Minister might outline where that is included, as I seem to have missed it in my reading of the Bill.
It states that legislation on environmental inspection shall be construed in accordance with a European Parliament and Council recommendation providing for minimum criteria for environmental inspections of members states. That covers the point the Deputy raised. It states that legislation should "provide for and outline the procedures for non-routine environmental inspections in such cases in response to complaints, acts and so on", which was the point the Deputy raised. It is specific in that regard.
I will respond to the points made by the Deputies. Serious cases have arisen in Wicklow. There was High Court success recently in regard to one of those cases in respect of which the directors have been found guilty. Apart from the fines, the remediation of the site as part of that conclusion will be significant and rightly so. Such restoration work is important. A number of other cases are going through that process in respect of which I believe we can look forward to successful outcomes, given the case that has concluded. From the State's point of view and, more importantly, from the public's point of view, confidence in the various arms of the State to deal with such cases is now much better. A point that arises out of this process is that if we had people to carry out such inspections, these incidents could have been discovered much earlier.
We have moved in the past year substantially from having a poor and uncaring approach, in many respects, across the system to the environment. That approach is dramatically changing. In regard to companies and individuals who had a laissez-faire approach to their activities, almost bordering on an illegal, I have good evidence to suggest there has been a substantial change in attitude. That is being brought about by process, and while I agree with Deputy Gilmore that process is not everything it is important, as he acknowledged. The outcomes the process can deliver are significant.
We are not fools and I worry about what happened over previous decades with regard to waste in this country. Where it all ended up must be a worry but we have to rectify the sins of the past. We must arrange matters in a way that we will not repeat those enormous mistakes and depredations. The evidence is that across the system, and I have been engaged with all the different groups over the last number of months in the public and private sectors, there is a move in that direction. The powers that have been made available through the EU directives and this legislation are strong and it is now recognised that illegal activities will not be tolerated.
Licences can be granted under the waste management Acts and there are strong conditions attached to the transshipment and movement of waste. One expects that anybody involved in such activities does so in a proper and legal manner. Illegal activity will not be tolerated by this State or other states. The reason there is so much pressure on Ireland is that we export much of our waste, quite legitimately, but as time passes and as the volume of waste in all countries increases, we will not have that option. It is my understanding that other countries are reaching capacity with their own waste problems, without seeking to import waste. We will have to deal with it ourselves.
I move amendment No. 31:
In page 18, between lines 20 and 21, to insert the following:
"(12) The Minister may make regulations to schedule the examination of existing licences by the Agency with regard to the provisions of the directive. The examination of licences shall be carried out on a sectoral basis and ensure consistency with BAT as determined in European BAT Reference Notes.".
This amendment arises from a submission I received from IBEC. It states that the proposed Part IV, section 82(4) provides for the Minister to make regulations to timetable the licensing of established activities which were licensable under the directive but not under the 1992 Act. The provisions of section 82 of this Bill, subsections (7) to (11), which deal with the examination of existing licences to conform with the provisions of the IPPC directive, do not provide the same certainty for existing licence holders. Existing IPC licensed companies are left uncertain as to when the examination will take place, whether they will be given adequate time to implement changes to meet the requirements of the IPPC directive by 2007, whether it will incorporate a review of their licences to meet the requirements of BAT as determined by the new BAT reference notes which have to be met by 2007 under the IPPC directive, and whether this examination will take place on an individual or cross sectoral basis.
Existing licensees will require adequate time to plan and implement any necessary changes to their licences to meet the requirements of the IPPC directive, for example, energy efficiency in BAT by 2007. For some older licensees, required changes may take a significant amount of time to plan and implement, as they may involve major capital expenditure. It is, therefore, vital that these companies have an indication of when their licences will be examined and if they will be required to make any changes at the facility to meet the requirements of the directive as early as possible.
There should be one examination review of licences to ensure they conform with the provisions of the directive and to incorporate BAT at the same time as determined by the BAT reference notes, which are under development in Seville. This will ensure companies have uniform standards to comply with and will not have to undergo a second examination or review, thus reducing the workload of the EPA. One examination would also give licensed companies certainty that there will not be multiple examinations or reviews and that work carried out to comply with the commissions in their licence after the examination will not be made redundant by multiple examinations or reviews. This is especially important given the short timeframe between the enactment of the Bill in 2003 and the requirements to conform with BAT in 2007.
Finally, the examination of licences should be scheduled according to sectors. This would not only facilitate the EPA to carry out a co-ordinated review of licences but the sectoral approach would also have to be consistent with the development of BAT reference notes at EU level. These reference notes determine BAT for IPC licensed companies across sectors. The timetabling of the examination of licences should be carried out in accordance with the schedule for the development of BAT reference notes and, once a note has been finalised and BAT determined for a sector, the IPC licences in that sector could undergo examination at national level.
This amendment is proposed to provide that regulations to timetable the examination of existing licences across sectors be made. This is a reasonable request put forward by IBEC.
We are aware of IBEC's views, which are important. I have tried not to be over prescriptive in the Bill. The Deputy is suggesting that we include this heavy handed provision but I do not favour that approach. These are matters which are best left to the EPA and the individual companies to decide. Clearly, many of the companies are in contact with the EPA and they will work out their scheduling with the agency.
We should not be directly involved in this type of detail. Practical approaches need to be taken and I have left the provision sufficiently open for such approaches to be taken between industry and the EPA. In the discussions preceding the introduction of this Bill, that is the approach I outlined. I am a little surprised that IBEC wishes to introduce a more stringent approach whereby we would dictate in the legislation how the process at that level should proceed. It would be bad for legislation to become involved in that micro level of activity.
Ireland has been to the forefront in the development of legislation within the IPC licensing process. We have actually been ahead of the EU. Much of the directive being implemented in this Bill had been taken account of when Deputy Howlin was the Minister in this Department. The Department took account of what was coming down the tracks and built strong legislation. While we get criticism internationally, and unfairly in our national media, this is one area where we have been to the forefront. There is a good working relationship between industry and the EPA and it is a matter for individual companies to work out with the EPA a context for the licence. Most of the existing licences, certainly since 1999, are well covered in terms of what the companies had to achieve in them under the provisions of this legislation.
I was not in a position to propose amendments Nos. 15 and 16 yesterday, which relate to this issue of best available technology. I wish to give notice that I will re-enter the amendments on Report Stage.
I move amendment No. 32:
In page 20, line 15, after "such" to insert "toxic and environmentally dangerous".
This amendment seeks to make the provision more specific about the types of effluent. However, I have noted the Minister's response to the same amendment when it was put forward in the Seanad and I agree with his sentiments. I will withdraw the amendment.
I agree with the sentiment the Deputy is trying to express but legally it cannot be done.
I agreed with the Minister.
I move amendment No. 33:
In page 20, to delete lines 34 to 36 and substitute the following:
"(v) any emissions from the activity will not have a significant negative effect on human health, on animal health, on sites designated for nature conservation, on species designated for conservation or protection, on residential amenity or on geological, archaeological or architectural heritage,".
This is really about what is meant by environmental pollution. The Bill, as presented, tells us that the EPA shall not grant a licence or a revised licence for an activity if, among other things, emissions from the activity will cause significant environmental pollution. What does "significant environmental pollution" mean?
The definitions on page 9 tell us that environmental pollution has the meaning assigned to it in section 4. Section 4 just tells us what all the various Acts mean, from which I conclude that the definition of environmental pollution is the same definition as is contained in the Environmental Protection Agency Act 1992. There was much debate, even then, as to whether the definition of environmental pollution defined in the 1992 Act was adequate. Whether it was adequate then or not, that was ten years ago and understanding generally of what constitutes environmental pollution or what constitutes significant environmental pollution is quite different.
Therefore I am proposing a more updated definition, which lays less emphasis on pollution and more on the impact that emissions from an activity will have on human health, on animal health, on sites designated for nature conservation and so forth. It is a more complete definition of the impact and this is what we need to be addressing. It is about the impact that emissions will have on the environment rather than setting a threshold of environmental pollution. The threshold, in any event, is now out of date and was arguably, even in 1992, less than adequate to meet the requirement.
I understand the intention of the Deputy. The definition of environmental pollution, both in Irish and European law, is understood. From case law, it is understood what it is to mean. While I sympathise with what the Deputy is saying, the danger is the amendment would give tight prescriptive definitions, which are not helpful and could have an undermining effect in a broader sense.
The Bill, on page 20, refers to environmental pollution and one will see the definitions on page 12. This has been consistent over the years. Its interpretation is understood. Its broadness is understood and the best available advice to me is that this definition has served extremely well.
I do not want to tie our hands in a tight way which would make it difficult going forward and which may also make it difficult in a wider sense. It is not that I do not sympathise with what the Deputy says, but I see inherent dangers in trying to adopt a prescriptive approach. It would be going far beyond what one would have to live with anywhere else. We in Ireland should remain consistent in what we are doing. There is good case law built up and a good understanding of environmental pollution. We also should be consistent in terms of what is happening internationally. I certainly do not want to do something which would add an excessive burden of difficulty to what activities might be taking place. I would rather leave it as it is.
Probably the next area where this section of the Bill will be addressed in a way that will be of major concern to the public will be when waste incinerators are to be licensed. Under this legislation, as I understand it, they will require one licence rather than two - that is what is being proposed.
The issue that will arise, which is already being debated in the public arena, is as follows. When the application for the licence for an incinerator is made, under this legislation the criteria operated will be that the EPA decision to grant a licence will, among other things, rest on whether or not the emissions from the incinerator will cause significant environmental pollution. The test the EPA will use for that will be the thresholds set down in regulations for environmental pollution. The EPA will look at the content of the emissions, take measurements and decide that if it does not reach the threshold, it does not constitute significant environmental pollution. That will be the legal position under this legislation.
On the other hand, there will continue to be people who will argue that the emissions, even if they do not reach the legally defined thresholds of environmental pollution, will have a significant negative effect on human health. Such people will produce, for example, the studies with which many of us are familiar from Irish, US and European medical researchers arguing that emissions of a particular type over a prolonged period, even though they may not legally constitute significant environmental pollution, have a significant negative effect on human health. Such people may argue that emissions from an incinerator will over a period of time have a negative effect, for example, on the quality of milk produced, on the soil and so forth. These arguments, which will arise when an application is made for a licence for an incinerator, need to be addressed.
Depending on how the legal action goes, for example, the people around Duleek probably will be the first in for shaving on the licence issue. When they arrive with objections to the licence application and argue about the longer-term implications on human health, soil contamination, animal welfare and agricultural produce such as milk, they will be told that unless the emission levels reach the threshold levels, they do not constitute significant environmental pollution.
The legislation at least ought to be framed in a way in which those concerns are capable of being taken on board. At the end of the day it is still a matter for the agency to decide whether or not to issue a licence, but at the very least it ought to be able to take into account the content of my proposal, that the emissions would not have a significant negative effect. What a "significant negative effect" means is still open to judgment, but it allows for the consideration of a wider range of issues than the much narrower legal formula provided for in the Bill, which is significant environmental pollution, which would simply be a measure on the appropriate scale. If the measure does not reach the appropriate level of emissions, then it does not qualify.
I ask the Minister to agree to this amendment. It leaves the decision-making, discretion and judgment on the issue with the Environmental Protection Agency but allows it to take into consideration a wider range of factors than is possible at present. It will at the very least prevent the type of frustration felt by community organisations and people who have a valid concern about incinerators and allow them to have their case heard. Currently, if they cannot establish that certain thresholds provided for in the regulations and legislation are being breached, their arguments are not entertained.
I am glad to see the Minister present and hope he is well. That said, I intend to do my best to give him a headache.
Indigenous industry will take a hit in the amendments we have tabled. For example, electricity generating stations will be subjected to more stringent regulation or monitoring than would otherwise be necessary. This is because we are looking at the end case scenario of the incineration process being licensed and developed to deal with the 1.5% of domestic waste that goes to landfill. It is unfortunate because it raises the bar considerably higher than would otherwise be necessary for indigenous industry.
That said, it is the necessary standard for examination because, if this process is allowed to proceed in Duleek and elsewhere, tough regulations will be needed to monitor it. The word "monitoring" is apt because, according to the most recent reports, no continuous monitoring facilities are available for these incinerators. What is in place is a system that periodically takes samples but is not continuous. There should be continuous monitoring of these processes because they have the capacity to cause significant damage in a short space of time. Continuous monitoring should be a requirement in the Bill.
The track record of some of these incinerator companies needs to be taken into account when considering a licence application from them. There are not many incinerator companies in Europe. There is a small number of large companies and they are like mini-oil companies. They tend to be ubiquitous and I can see that being the case in Ireland. I will move an amendment that their track record be considered because some of them are atrocious and that needs to be examined.
The issue of accidents at these installations needs to be examined in detail. The regulations in this regard need to be examined, as does the timeframe for reporting such accidents. A tight timeframe is needed that places a strong onus on companies to report an accident to the EPA within hours of it occurring so that people and the emergency services can be warned. The EPA will have to compare the reported extent of the accident with its investigation of it to see if the company was being honest with the agency. If it turns out not to be the case, there should be a stringent licence review.
These are some of the areas I wanted to address in the context of this amendment, which I support. I will return to my own amendment later.
Did Deputy Eamon Ryan wish to contribute?
No, Deputy Gilmore has put the point very well and I will happily row in behind that.
I know exactly what Deputy Gilmore is trying to say. The Bill refers specifically to that which would to a significant extent endanger human health or harm the environment where the holding, transport and recovery of waste is concerned. The issues raised by the Deputy are included in these definitions. It is likely that the incineration elements will come under the Waste Management Act and probably not under this Bill. I cannot say for sure but both the Act and the Bill cover the area in any event. This Bill covers human health and damage to the environment, plants, water and animals. All this is covered in the definition.
Regarding the point made by Deputy Morgan, the incineration directive requires continuous monitoring of certain emissions, which I welcome. I am happy that we have nothing like the levels and standards in America. They are so easily achieved I would be very concerned if they were to be the standards in Europe.
I have repeated on umpteen occasions that the standards set in Ireland based on the latest levels will be enormously high, and rightly so. I am not in the business, no more than anyone else in either House or any political party, of damaging people's health. I am trying to do the opposite and I mean that genuinely. I am trying to redress the degradation and damage done to the environment and manage these processes in a way that allows for best practice and confidence. There is no doubt that there will be substantial public engagement in the incineration debates in the form of environmental impact statements, and these issues will be teased out in a fundamental way.
Regarding the issues the Deputy raised in the amendment, I am satisfied that the provisions of the Bill are in keeping with what has been the practice over the years in the European environmental directives and with the definitions in those directives. We are seen to be to the fore in transposing these into law and have been ahead of the posse in doing so.
I would be loath to go beyond these definitions because they more than cover what the Deputy's amendment tries to achieve. The danger is that, if the substance of the Deputy's amendment is included, we will be very specific in some areas, saying these are the important and key elements and not others. The way the Bill is structured brings everything into the equation and brings many of the points Deputy Gilmore made into this broad and full discussion that will have to take place and which may cover landfill sites, incinerators or whatever.
It is likely that the Waste Management Act will cover incinerators. My sense of it and my understanding from having spoken to a number of the companies is that, in examining new facilities from an Irish context, they are looking at large waste facilities with some element of incineration attached. This will come more under the Waste Management Act than under this Bill.
On that last point, I was not aware that this legislation would not apply to these facilities.
They would come under the Waste Management Act. Both pieces of legislation will be in place.
In terms of new facilities, such as that planned for Ringsend with which I am familiar, is the Minister saying it is a waste management facility with an incineration facility attached to it? I am not too sure about that. I thought it was purely an incineration facility, that a waste management facility was in place in Kill and that what we would send to Ringsend——
I was not referring to Ringsend specifically.
Let us take that as an example. Would that be treated under the Waste Management Act or this Bill?
I cannot give a direct answer. It will be a matter for the EPA to clarify for itself which Acts will apply. It is not as if the Act is lesser than this Bill. They mirror each other. It depends on how much energy is produced and how much waste to energy emphasis there is in the plant and which Act governs it. If it is going for a massive amount of waste to energy, and that may be the case in the Ringsend plant, I am not overly——
Where are the criteria by which it will decide? How will it decide?
In section 25. I have given information to Deputy Gilmore.
I appreciate the information.
When we get to section 25 we probably will have an argument about this, because I am not happy with it. There are two issues that need to be licensed. One is the waste facility and the other is the emissions issue, which should come under the integrated licensing system. We can probably leave this to section 25, when we can have it anyway. The issue that arises with this amendment is whether this is simply anti-pollution legislation or protection of the environment legislation. They are somewhat different things.
Two situations are going to arise. One is where an application is made, either by an industry or by an operator, for a licence. Any applicant worth his salt will prepare the application with an eye to what the EPA will regard as environmental pollution. They will submit an application which states that the emissions from the plant will be well within the threshold allowed. Under this formula all the EPA can consider is whether emissions are under or over the threshold that will cause pollution. Someone with concerns about those emissions will not have a case once the applicant can show the levels are below the threshold. All the applicant has to do is state as much and have sufficient evidence to assure the EPA that its technology will keep emissions under those levels.
The next situation has two key aspects concerning whether the operator is complying with the limits set in the licence and what happens with a review of the licence. The problem here arose in the report of the health research bureau on incineration, landfills and so on, which stated baldly that we do not have a monitoring regime to determine if these are causing pollution. It is very difficult to establish if emissions are causing pollution. It is easier to establish that they are having a negative impact on the environment as experienced by humans, animals or plants. The case I am making is one for wider consideration of the impact on the environment on emissions than the narrow provisions of the Bill. One of my reasons for doing so, apart from it being a more up-to-date way of looking at the environment, is that in the absence of the kind of monitoring required to establish whether there is pollution, we need to have a wider understanding of the impact of pollution. As I said earlier, the point at which this subsection becomes an issue is when licences are applied for to set up incinerators. Then we will have people who are going to want all the concerns about incinerators considered but when the application is made, they will be angry when they learn that those issues cannot be considered by the EPA as the EPA can only consider whether pollution will be caused. That is a defined criterion.
I am trying to work with Deputy Gilmore on this but I do not agree with his last point. The environmental pollution provision includes a huge range of definitions and includes specifically the impact on health. I do not want a process which people do not perceive to be handling the issues - that would be wrong and I want the opposite, namely, an open, fully engaged process.
Deputy Gilmore referred to the health issues. This is not just an Irish thing because the world-wide systems to monitor these issues have not been great and really have not existed. The questions raised in a number of reports do not relate to specific monitoring at the time but refer to long-term resources being put into this to determine long-term effects on health. I disagree with the Deputy's point that these issues cannot be raised. Not alone can they be raised but I expect them to be raised. If they are not discussed properly at a level which gives the public some satisfaction, then delivery of the waste management solution we have adopted, which is best practice among the countries acknowledged as being the most environmentally friendly, is going to be a problem. I want to see the most open debate on this issue that has ever taken place. I would welcome that and I disagree with the Deputy saying that officials can say the levels are at such a point so no discussion is needed. Under the Act there is more than adequate provision to deal with these issues.
One problem we have is that because we have not had any of these facilities, people's perception of them is based on traditional mass burn, which is unacceptable. The systems now being developed include some with no emissions, such as the Herreshoff system. There are systems now which are radically different from the systems which existed before, which I am genuinely glad we did not have.
One of my concerns with definitions is that environmental pollution is seen as being directly related to particular activities, such as smoke which can be seen coming out of a chimney and I seek reassurance on this. There may be broader problems. We have very low dioxin levels in our breast and cow milk, which is remarkably clean compared to the rest of Europe, but in ten years if we see a high level of dioxins, with carcinogenic implications or other problems, it may not be particularly associated with one specific site or activity. For example, the dioxins contained in the ash, which are significant from an incineration process, may find their way into the environment and in the long run create serious problems. Perhaps we are not monitoring properly in terms of looking forward. Is the Minister happy that the definition currently used is robust and broad enough to take into account the general activity across the environment?
The Deputy is correct. That is the key because it is so broad in terms of the definition. It covers almost anything of which one could conceivably think. That is the way it is interpreted in a legal sense which is why I did not want to narrow it down to the sort of definition mentioned. Case law indicates that absolute broad approach. Even though I understand it, in some ways it is ironic in looking at what has been said in the European sense when talking about modern plants in particular - I have spoken to ministerial colleagues at European level about this. The big problem is not incinerators but they are worried about the other big issues which are causing environmental pollution. It is believed that the incineration issue is now down to such a finite point in terms of technology and its contribution to dioxin levels that it is now other issues which are dominating the public attitude.
If one looks at commentaries from the Swedish Commissioner, Margot Wallstrom, the Danish Ministers, independent observers, colleagues to whom I am speaking on the British Council, including representatives of the different islands including the Isle of Man and so on, they have all moved on to other substantive issues relating to pollution about which they are concerned. The incineration issue is seen as a very good integrated approach in terms of waste management. None of it represents simplicity. We cannot wish all this away. Waste has a residue which presents a challenge. Increasing volumes of waste present problems. There are difficulties in terms of health and safety issues. Packaging is causing problems of pollution. I would like to eliminate much packaging but I cannot do so because health and safety requirements drive individual wrapping of tablets and so on. One would almost want to have a degree in engineering to get a tablet out of a package. When I ask why we can not end this I am told it has to do with health and safety. Items must be individually packed. One is constantly trying to manage these conflicting requirements. In fairness to industry in this country, including the broad approach of the building industry, it is seriously trying to resolve many of these challenges which face us.
Up until a few moments ago I thought the Minister and his predecessor were approaching incineration from a purely party political perspective with another agenda which worried me greatly. I did not think they believed in it and that it was a bit of a stunt. The Minister is beginning to convince me that he, at least, believes in this process. I do not know whether I should be more worried about his belief in the process or what the other agenda may have been. Given that this is perhaps the case, will he accept the deep concerns of the Opposition, including that of a significant proportion of the public, about the whole process? If he accepts this, will he consider a moratorium for a number of years, perhaps even as little as five years, to give people a chance to look a bit more at this whole process? Given his earlier comments, while he does not convince me, it is a convincing enough performance that he believes what he is saying. If that is the case, surely he has trust enough in the process to hang it in the wardrobe for five years. Let us have a look at it at that point in light of the technology and developments which will have taken place, particularly in light of the activities of Irish people which the Minister witnessed in Dundalk when he was jostling to open the civic amenity centre.
Is this when the Deputy did not receive an invitation?
I was not worried about an invitation because I understand why I was not invited. Perhaps I could have been there with a placard to slag him and where would he be then? I was recalling yesterday how a carload of Ministers were in Dundalk jockeying to have photographs taken for the press. The result was great looking at the tape.
I do not need to get my photograph in the paper. I tried to oblige these people. The Deputy is right to identify these people. I wish I had enough people in every local authority area throughout the country to replicate this couple.
The advancement we would make in terms of recycling waste would be extraordinary.
The Minister can do that.
I am trying to do it. What has coloured my view on this has been a long and deep association with Denmark since the 1970s. Having been formerly married to a Dane and travelling back and forth to that country, I looked with envy on what they were achieving in the environmental area. The attitude of adults and children to the whole environmental area, including littering and so on, was quite astonishing. One could walk around a housing estate, where children were playing, and find an incinerator at the corner. No one was bothered about it and everyone was quite happy. Recently a group of councillors travelled to a particular area in Germany, were not told where the incinerator was and they could not find it. They had driven past it three times before being told it was an incinerator.
One cannot see dioxins.
They thought they were looking at an office block. I have sat in restaurants looking down on incinerators. I wish there was another solution which did not require incinerators, landfill and so on. However, in regard to the timeframe the Deputy asked about in terms of a moratorium, I am caught on other directives. We are potentially facing massive fines from the European Union under landfill directives, etc. and we are not going to meet our targets.
We must move forward on all fronts on this issue. There will not be an incinerator in this country in the next year or two. By the time the process is completed it will give the timeframe for which the Deputy has asked. I accept there is a massive job to be done in terms of public understanding, proper information, reasoned debate, argument and discussion. I respect these people who disagree with my point of view. People are entitled to their points of view. I have consulted my officials and looked up Internet sites to find out if I am missing something when dealing with all the challenges we face as a country, but I have not found that I am.
I have a brief question regarding the difficulties with international obligations, particularly the Kyoto Protocol. No matter how we dress up or look at the technology, we are burning our waste. There are emissions from the system whether through the soot and ash we have to dispose of or through the air. Burning does not make our waste disappear by magic but has consequences which we may not yet be able to calculate despite our best plans.
My greatest personal worry is my mobile phone. I wonder whether we are all going around frying our brains as a result of our habit of living almost 24 hours a day on the phone. Our children are even worse in that regard. I would like to know the outcome in terms of possible damage to our health in the future.
I accept there are no simple solutions. We can try to control better what we are doing and reduce the damage we are doing to the environment.
I move Amendment No. 35:
In page 20, lines 47 to 51, to delete all words from and including "or," in line 47 down to and including "environment" in line 51 and substitute the following:
"or where waste is produced, it will be recovered. Where it is not technically possible to recover the waste produced, new production processes must be introduced that will allow this type of waste to be phased out over a five-year period. During the phase-out period the producer of the waste must pay the cost of ensuring that it is disposed of in a manner that will have a minimal impact on the environment".
Yesterday we talked about where we should strike a balance. We debated whether we should use the word practicable or possible. To a certain extent, this amendment goes back to the same issue.
Section 83(5)(a)(vii) sets out that the agency would have to have regard to Part lll of the 1996 Act. Where waste is produced it encourages its recovery but where that is not technically or economically possible it would be disposed of. Our concern is that there are get out clauses, which are repeated throughout the Bill. There is use of such phrases as “if it is not practicable” then one can go ahead with what will have other consequences and “if it is not technically or economically possible” one can go ahead and dispose of the waste.
I am concerned that in an attempt to strike a balance we are going too far on the side of people whose interests might be in the disposal of the waste. However this might not be in the wider societal interest or the wider interests of the economy. It is easy and a very loose definition to say something is technically or economically difficult so we will continue with current practice.
Our amendment probably goes to the other extreme. We had a debate yesterday on whether we would or could define zero waste. We argued that we could and should and set that as our standard. I recognise that what our amendment asks is quite extreme and difficult. We suggest that we live up to the zero waste policy and where a product can be recovered there would be an obligation to recover the waste or that there would be a timeframe by which such technology would be introduced. The wording may be flawed in terms of not recognising that there are certain circumstances when there is waste that does not have residual value and which must be dumped.
Returning to incineration, one of its problems is that we are left with soot or fly ash which is a volatile, difficult and possibly or potentially toxic substance. Some say it is definitely toxic. There is no way around that particular waste. Our amendment may be slightly narrow in that it almost presumes we are moving towards a zero waste system and to a full cycle where we can recover all the waste stream, other than organic waste which can go to compost and return safely to the natural system.
Our concern, throughout the Bill, is that the balance that has been struck has a number of get out clauses and does not encourage waste recovery. The point was made yesterday that the Bill deals with the treatment of pollution rather than the minimisation of pollution. It is a failing of the Bill that it does not set strong goals or targets for the State to reduce the waste we are creating. It fails by allowing opt-out clauses such as "if it is not economically possible", resulting in the attitude of so be it, we will continue as we are and will not reduce the waste created. That is the sense of our amendment.
On the last point, throughout the Bill and the licensing system the emphasis is on the prevention of pollution. The existing wording reflects closely the wording in the IPPC directive and IPC licensing aims to achieve continuous improvement, which is what we are trying to do in the environmental performance of the industries concerned. However, it is not realistic to talk about phase-out of any waste production over a specific period. We already covered this ground in earlier discussion.
There is no doubt that many of the policies, actions and objectives that are promoted as so-called zero waste strategies are useful. Some of them make sense and we want to adopt as many as we can. We must tackle current production and consumption patterns, we must minimise waste generation and maximise waste recycling and recovery. I subscribe to that and will use every cent I can get my hand on through the environment fund to provide the resources to achieve those aims.
We must be honest about promoting zero waste targets. Any rational person knows intuitively that society cannot eliminate waste and that all waste cannot be recycled. A realistic appreciation of the facts of waste management confirms that. Proponents of the zero waste policy routinely promote existing practices as if they had achieved something substantial or something more progressive than they had. We know that in some places like Canberra and Ontario which have adopted these strategies the strategy has gone awry completely. It just does not work.
While we must be realistic this does not mean that an objective of zero waste and a lot of the practices it promotes are not valuable, which of course they are. We are adopting some of them within the broad strategies of this Bill in the context of minimisation, prevention and removing waste from the environment. The effort to reduce the use of the plastic bag is an example of this. I want to do much more. I get frustrated that every time I list some of the things I want to do everybody gives me reasons I cannot do them. There are conflicts involved in the issue which need to be resolved.
I am obviously not minded to accept the amendment but do not want to be arrogantly dismissive of the approach. I accept there are good elements in the approach but there is no evidence to suggest that zero waste is the solution. We will not arrive at a point where there is no waste - it is unrealistic.
Does the Minister accept that the adoption of the regional waste management plans, which each include incineration, is a deterrent and contrary to the policy of seeking or trying to achieve zero waste? The attitude of people changes greatly when a waste disposal system such as incineration is available. This will be available if the plans ever come to fruition and will kill the very principle and idea of a zero waste policy.
In this and the previous amendment we are touching on the alternative ways of dealing with waste. There is a fundamental policy difference between the Minister's approach and the policies he is pursuing and the approach shared by Deputy Ryan and me. The difference is in whether we look at waste as a potential resource or as a problem to be buried or burned. Deputy Ryan and I share the view that it is possible to address the waste problem by looking on waste as a potential resource.
I am of the same view.
I am glad to hear that. I was following on Deputy Ryan's proposal and was not seeking to exclude the Deputy, or Deputy Morgan.
Everybody except the Minister.
Absolutely. The problem here is that the choice is being made on this Minister's watch. It is clear from what he has said that he believes the solution is to burn it. It was quite an experience to be here while Deputy Morgan was undergoing the conversion to the view that the Minister actually believes in this. That is the end line.
Once a regime is set up where waste will be put into a furnace and burned, all other approaches, such as the one advocated by Deputy Ryan in this amendment to take out of the system as much of the waste as possible and to try to find solutions for waste that cannot be reused or recycled, will go out the window and into the furnace.
I will not be Minister for the Environment, Heritage and Local Government forever.
No, but the Minister will leave behind him an infrastructure that will not be capable of being reversed for 25 years.
I will not. I will give two reasons I will not be able to do that. In all international practice where incineration is a major part of the solution, recycling still forms 30% to 40% of the core element of the system. In many of those countries the capacity of many previous incinerators was huge due to necessity. However, in many modern plants the capacity is much smaller and this is much more viable.
We will have failed, and I will certainly have failed, if we do not achieve the recycling percentage. This is about much more than just the disposal of our waste. It comes back to what Deputy Ryan is talking about. This country requires a whole mental shift in attitude in regard to litter and waste and what we do with it. DeputyMorgan identified what happens every Saturday morning in Dundalk and this is replicated around the country by people and the commercial sector. There is a transformation going on in this area. I do not want to come across as having only one track on this. I have a clear view on my approach to the four key elements in terms of dealing with it.
The figures give me confidence. The figures from Germany, Denmark, Austria and elsewhere show me that in a mix which includes incineration there is significant capacity for recycling. I am not going to allow for massive over capacity in this country. The danger of that would be that people would say "Sure we will burn the lot of it and that will solve all our problems". That is not what I want at all. I will not give the capacity to do that. It would be a grave mistake to do so.
That is the reason the emphasis in all of this is on recycling. With the environment fund I have available for the first time ever a huge volume of money, amounting to €50 million this year, while huge resources of infrastructure are being put in place by local authorities in the country. This changing of our ways is important.
The last point I will make, having gone around the country with the spatial strategy which we are not going to discuss here, is that integrated regional waste management plans are crucial for job creation. At both an indigenous and foreign direct investment level we have a problem regarding the facilities in place. Without question, the location of good integrated waste management systems will be a big factor in attracting jobs. I have no doubt in my mind about that.
We will take an opportunity to interrupt the Minister.
I was going to interrupt the Minister.
I have been lying on my back for two weeks and am on tablets so maybe I am wound up Chairman.
I will have to go on one of these FÁS assertiveness courses as I find it hard to interrupt.
Having shadowed Deputy Harney I regret to say the courses have been cut back and there are no places available.
What we decide to do about waste will be set and settled for the next 20 to 25 years. It will be difficult, if not impossible, for that process to be reversed. I would accept the Minister was serious about getting to 30% or 40% recycling if we were putting in place the infrastructure for recycling, but we are not. Of the material going into green bins for recycling, the paper goes to the Far East, although I suspect a lot of it goes into landfill, plastic goes to the UK with the exception of bottles which go to Kells, and glass now goes to Fermanagh as we no longer have a glass facility in the State.
It goes to Northern Ireland. White goods also go to Northern Ireland.
I appreciate it stays within the island but it is not within the State. Tetrapak goes to Scotland. We will not have recycling at the 30% to 40% level unless an infrastructure is put in place for the actual physical recycling of waste on this island. Without that we only have a collection system.
I acknowledge that there has been an increase in the possibilities for waste to be collected for recycling. We have the roll out of the separated collection via the green bins in urban areas. I agree with what Deputy Ryan said yesterday and wish it was happening at a faster pace. Hopefully it will speed up. We have an increase in bring centres which are a kind of high profile side of recycling which make people feel better because they can go and pop their wine bottles in the bottle bank on a Monday morning or a Sunday night. There is a great willingness and enthusiasm on the part of people to participate in recycling activity. We have an increase also in composting. I expect that all of these areas will probably increase. However, the Minister's strategy for the vast bulk of the waste generated is that it will be gathered up and taken to an incinerator and burned. That is the strategy being pursued.
The Minister believes in this strategy and that the incineration option is best. I accept that he believes that technology is such now that the environmental impact is minimised. However, there are two problems. Firstly, all an incinerator does is convert one form of waste into another. We end up with the ash and gas waste which are the product of any thermal process. The second problem is that if we construct our waste strategy around incineration, we minimise the motivation and necessity to approach waste in a different way. For example, we would have no motivation to develop Deputy Ryan's proposal that where waste is not capable of being recovered one should develop a five-year strategy to eliminate that form of waste. If there is an end-of-pipe solution which will result in the burning of waste then there is no motivation, requirement or pressure to do that. That is where the Minister's strategy is fundamentally flawed because what he plans to do on his watch is give this country a waste regime which is centred on incineration. Having done that for all the economic and resource reasons which we all understand, it will not be possible to reverse it. He will have landed this country for the next 20 to 25 years with a waste regime which will rapidly be out of date. I expect that within the next decade, the European Union will have very significantly revised the waste hierarchy. The superiority in that hierarchy of incineration over landfill may not survive. That may not be the accepted wisdom in ten years' time. Having committed ourselves to a strategy based on incineration, within a decade we will find ourselves again having to revise our approach to waste, at significant cost. I will cite an analogy which may be a little stretched. I remember when Moneypoint was being built. I was a trade union official across the estuary in County Kerry at the time. I remember all the things that were being said about Moneypoint and this marvellous new modern plant for the generation of electricity. That was the accepted wisdom of the time but look at the cost that must now be paid to put it right. The Minister is very enthusiastic and he will commit himself to incineration. We will get incinerators whether we like it or not. That will be the Minister's legacy to the way we deal with waste in this country. We will be revising that strategy within a decade, possibly at considerable cost to the economy and to the public purse. It is the wrong way to go. The proper way to go is admittedly more difficult and that is the option for which those on this side are arguing. Some people call it zero waste but, as I indicated yesterday, I have some reluctance about using that term. It is a concept of treating waste as a resource and of trying to get as much waste out of the system as possible and trying to find ways to convert the waste into usable materials. Apart from dealing with the waste problem, it reduces the pressure on the uses of other resources which otherwise would be used for the production of paper, plastics, carpets or any of the other materials that can be produced by using waste as a raw material.
On a point of clarification, I always knew the Minister was going to burn; it is his motives for doing so I am revising. I am not sure which is better, to be honest. All the evidence is there. We on this side have as much passion against incineration as the Minister has for it. The evidence around the country indicates clearly that people are prepared to recycle. The individual is accepting his and her responsibility. The difficulty lies with the producers of packaging in particular and other products. For example, last Sunday evening I drove through a village which is a seaside resort. One used to know how many visitors were in the village by the amount of litter around the streets. On this occasion, there was hardly a paper on the streets, it looked like they had just been swept and yet it was a busy day. The litter bins were not overflowing but were full. That is indicative of how awareness among the public is increasing significantly.
There is also awareness at household level of recycling and separation. Industry can follow because it is easier to discipline industry through incentives. The difficulty is to try to reach the persons in control who can make the decision and ask them to give the public a chance to do their job and if they do not, in light of whatever measures we would need to put in place to further enhance that awareness, we may have no option but to look at incineration in five or ten years' time. Deputy Gilmore is correct in his view that unfortunately it will either be him or me, in ten years' time, when one of us is Minister for the Environment who will have to try to turn the situation around and, if I dare use the term, "decommission" these bloody incinerators.
It will have to be the Deputy in that case.
I will enjoy doing it.
You have the ball at your feet now, Minister.
This is a very healthy and fair discussion. It is clear from it that there is an enormous amount happening in the construction industry, the packaging sector and among individuals. We need to understand what is going on out there.
I absolutely accept Deputy Gilmore's point. We should use waste and convert waste to energy rather than throw it into the ground and do nothing with it. We should try to get a value and a use from it. In Scandanavia and up into the wilds of Finland towns and some very large cities are heated through burning their waste and creating energy. There is a very good example in the Netherlands, where less than ten years ago they were at the same position as we are today. Deputy Gilmore made the analogy that this may all change in the future but I do not think it will. The problem is that the future is upon us now; we have no choice and we must do certain things. In the Netherlands it was 90% to 100% landfill nine or ten years ago. They were exactly where we are now. They went out and got the best advice and they have come out with what we are mirroring. The position has changed today where 45% of all waste in the Netherlands is recycled. They brought landfill down to 13%. They are also using incineration. The same applies in Austria which has 48% recycling and incineration at around 17% converting waste to energy. Denmark is held up as one of the best examples and they have 30% recycling, 12% landfill and about 50% waste-to-energy. The mixtures seem to be different but the principles involved are the same. I hope we will be able to achieve that. We are motoring in a way that we have not motored before but there is much to do. Until I became Minister I did not realise the number of things that are happening around the country. There are times when we should not be too discouraging or disparaging of ourselves in terms of the people because there is enormous enthusiasm for many things. I accept there is not enormous enthusiasm for incineration. I have spoken to many people around the country who just want us to get on with it and get the solutions in place. Irish people are well travelled around the world and know the solutions.
Last year I was on holidays in the Far East. Although people thought I was mad, when I heard there was a new incinerator on the island, I phoned the local authority, advised who I was and that I had an interest, and asked if I could see it. At first they thought I was joking but having established my credentials, I was brought to see it. I drove my little jeep and found it. It was the smallest such plant I had seen with a maximum capacity of 75,000 tonnes. I was amazed to find it was in a massive coconut plantation.
Should we send Deputy Morgan there this year?
You would want to leave me there.
I welcome the fact that it is an evolving debate. We will see where we go.
The Minister said we were moving to small incinerators in Europe. I am only familiar with the Dublin one and having spent some time looking at its details, nobody could call it small. It has a capacity of up to almost 500,000 tonnes of waste per annum, which is a significant percentage of the waste generated in Dublin and outside. Whatever it is, it is not small.
The €50 million per year, some of which will go on recycling and some on other projects, will represent buttons. That will hardly pay for the lawyers and consultants who are involved in the incinerator projects before we even get into the construction and running costs of these incinerators. We should not lose sight of the fact that is a minute fraction of what we will put into incinerators.
While I hate to be negative, having been involved in the late 1990s in trying to set out waste recycling targets and what would be in place by 2003, I am afraid we have failed when compared to the ambition of even four or five years ago. Only a fraction of the households in Dublin have a green bin, not to mention Cork, Waterford or Limerick. Galway tried something but unfortunately did not get much support. In the rest of the country little if anything is happening on recycling. There is no sign of a brown bin anywhere. Three or four years ago it was proposed that by 2001 or 2002 every household would have a brown bin for organic waste that would reduce——
There are three bins now in Waterford - one brown, one green and the traditional one.
We are still waiting for them in Dublin and if the Minister has an announcement on that basis I would love to hear it. The argument has been made that we will get huge energy from a waste-to-energy incinerator. I just wish we put the same energy and resources into developing something like dual thermal energy and combined heat and plant units. There is a myriad of other technologies that would provide cheap energy on a sustainable continuous basis. Burning material with a high calorific content is not a clever way of generating electricity. There are thousands of other opportunities in this country to generate heat or electricity.
Ultimately much of this centres on the issue of definitions, which is why we are trying to start defining things like waste and zero waste. Yesterday I made the point that there is no such thing as waste on a planetary basis. We live in a planet where everything is ultimately recycled and whatever we do is a small interference in that overall process. We are wasting our use of the resources that are available to us. It is human waste in that sense. On a planetary basis it is not waste; the planet will cope without us. We are starting to affect in certain planetary systems the way the climate works. However, ultimately everything is recycled in the planet.
We are wasting our access to the resources and our ability to use those resources, particularly oil. When considering incinerators, we want to get in the highest possible calorific content - the plastics and materials that have the really good burning potential, which effectively means oil. Deputy Gilmore is right to look forward 20 years and ask what we are building for then. Oil will become and already is such a precious resource that burning it in a waste stream will be seen as complete idiocy. When considered on that basis, the recovery alternatives start to make economic and environmental sense.
The Minister has not addressed the reason behind the amendment, namely the provision, which occurs throughout the Bill, of get out clauses by saying that where it is not technically or economically possible, dumping may take place. Of course under current circumstances it will be economically cheaper to send it off in a skip. Will the Minister take the point that once the proviso exists that if something is not economically viable it does not have to be done, this means that we are not really pursuing the recovery, recycling and reduction routes, which should be central to the Bill?
The Deputy is being unfair. In Dublin alone there are 280,000 green bins. That is not an inconsiderable achievement for which credit is due to the councillors of the local authorities involved. It is a phenomenal achievement that would have been unheard of a few years ago. The €50 million that I announced earlier this year cannot be regarded as an insignificant sum by any measurement. It is a significant sum, which will grow. So much debate took place that we could not get plans adopted for four years. We will not go back there. For instance it took four years to introduce 600 bring banks. We will introduce that number this year alone. The multiplier effect on the progress is enormous, which should be recognised in local authorities. I get the sense that all local authorities are engaged and rightly their big emphasis is on prevention and recycling. I welcome that and all the public commentary that drives it. The activities of councils in introducing street furniture, etc. are driving that agenda and changing the mindset, which is what I want to see happen. The last component in all this is thermal treatment and it is only part of that solution. As Deputy Morgan said, I am convinced that for some elements it is possible to do all things, but some are left for which it is not possible and this is the only option.
We resume our consideration of the Bill on amendment No. 36, in the name of Deputy Cuffe, which may be discussed with amendments Nos. 51 to 56 inclusive, by agreement. Is that agreed? Agreed.
I move amendment No. 36:
In page 20, between lines 51 and 52, to insert the following:
"(viii) require the provision, operation and maintenance of meters, gauges, man-holes, inspection chambers and other apparatus and other means for monitoring the nature, extent and effects of emissions,
(ix) specify the type of fuel to be, or not to be, used, as the case may be,
(x) specify measures to be taken after an emission, which is not in accordance with other conditions attached to the licence or revised licence, has taken place,
(xi) specify requirements in relation to the recovery or disposal of waste arising from the activity on land other than land on which the installation is situate and whether in the ownership or occupation of the licensee or not (including requirements with respect to the furnishing of information to the Agency in relation to the land for the time being used for the purpose of such recovery or disposal),
(xii) require the making of payments to the Agency in relation to costs incurred in relation to determining whether there has been compliance with the conditions attached to the licence or revised licence or not and in relation to steps taken for the purpose of the monitoring of, or otherwise in relation to, emissions,
(xiii) require the payment to the Agency of a charge or charges prescribed under or calculated in accordance with section 99,
(xiv) specify the latest date by which a condition attached to the licence or revised licence is to be complied with,".
This amendment suggests further issues on which we believe there should be a requirement to satisfy the agency regarding a licence application, none of which is particularly difficult or contentious. I hope the Minister will agree they are issues which should be taken into account. Essentially, this simply involves putting some more detail into the Bill. I will not go through all of the provisions of the proposed amendment as they are rather self-explanatory, but some of them are quite important. It would be useful to require the agency to ensure that specific measures will be taken after an emission. It should also look at recovery or disposal of waste arising from activity on land other than the land on which the installation is situated. The next subsections refer to payments to the agency for costs incurred in determining whether there has been compliance.
The proposed provisions are fairly simple and I would hope they are not contentious. They are designed to be more specific in terms of what we wish the agency to take into account when deciding on licences.
All of this, as the Deputy knows, is already in the Bill. Evidently, he wishes to move from discretionary to mandatory provisions, if I understand his amendment correctly. I do not consider it necessary to move these provisions from a discretionary part of the Bill to this mandatory section. Mandatory requirements are already being significantly strengthened in section 86. I believe flexibility is still required as to whether all of these requirements are needed in all circumstances. These are matters for decision by the EPA in the circumstances of each individual case and are better left in that arena.
Amendments Nos. 52 and 53 relate to land-spreading.
Does Deputy Allen wish to comment on amendments Nos. 52 to 55?
I have put down these amendments, at the request of the Irish Farmers Association, with a view to getting the Minister's reaction. On amendment No. 52, the advice available to me is that the Bill effectively allows the agency to control farmers who are not subject to licensing by the EPA. In the case of pig production, which is licensed, such operations already provide a substantial amount of information which is sufficient to ensure environmental safety on lands where pig manure is recovered. The IFA suggests that the legislation should be restricted to allowing the agency to secure this information only.
On amendment No. 55, the Bill contains a wide range of provisions which will result in substantial additional costs on licensable activities. The power of the agency to recover costs must be restricted to the recovery of necessary and unavoidable costs only. I will move those amendments at the appropriate time.
I wish to respond to the Minister's comments as to the basis for certain provisions being discretionary, rather than mandatory. Given that some provisions, such as that relating to looking for the type of fuel that may be required, are seen as representing common sense, is there any reason why they should not be set as mandatory requirements? What is the advantage of leaving this as a discretionary option?
I said to the Deputy a moment ago that discretion is required as different circumstances apply in different cases. This provision, which has been in legislation since 1992, has worked very well and I do not think there is any reason to replace it with a hard and fast rule. The relationship between the EPA and its clients is such that each case can be judged on its merits. My experience to date is that the system is working quite well and I do not see any need to change it. The discretionary section is included in the Bill and I suppose it is horses for courses, in a sense.
Amendments Nos. 52 and 53 relate to the land spreading of slurry, which I think everybody accepts is an important environmental issue. It is essential that the EPA should have appropriate powers in this regard. The amendments seek to significantly roll back on what is proposed in the Bill regarding land spreading and lands which are not in the ownership of pig producers. This section relates largely to third parties. It is common sense that the EPA should be able to obtain information about lands on which a pig producer wishes to spread slurry. The EPA should know whether such lands are owned by the pig producer or somebody else. Common sense dictates that it should be possible for the EPA to apply conditions to land spreading irrespective of who owns the lands in question. This is an important safeguard. There can be no guarantees if the EPA does not have such powers. I do not think anybody wants it all to be taken out of the first producer and to disappear into a black hole.
There is no guarantee that slurry will not be spread on lands which are completely unsuitable for that purpose. It is important that we know where slurry is being spread in order that it can be monitored. If unsuitable land is used for this purpose, it is inevitable that pollution will occur, leading to the contamination of water for human and animal use. We are all aware of the sort of pollution that results and we want to stop it. Unfortunately, we have seen fish kills in our rivers. I am not inclined to accept amendments Nos. 52 and 53.
Government amendment No. 54 relates to section 86 (1)(b)(xi) of the Bill, as drafted, which allows the agency to include in licences “requirements in relation to the recovery or disposal of waste arising from the activity on land other than land on which the installation is situate and whether in the ownership or occupation of the licensee”. The land spreading of slurry is an important environmental issue and it is essential that the EPA has appropriate powers in this regard. While the section, as drafted, allows the EPA to acquire information on an ongoing basis, in particular, on the land being used for the land spreading of slurry, it does not expressly deal with the question of any proposals to change the lands being used. The EPA needs to know if the lands are being changed. I am correcting this oversight. This amendment will clarify that the EPA may, by way of conditions, require licensees to advise it in advance of proposed changes in lands to be used for land spreading in order that it can approve them or otherwise. This is something that we all want and will welcome, generally speaking.
I will withdraw my amendments.
I will do likewise.
Amendment No. 38 is related to amendment No. 37 and the amendments may be discussed together, by agreement.
I move amendment No. 37:
In page 21, lines 4 and 5, to delete "to limit its consequences for the environment" and substitute "the person responsible will be made to pay the costs of remediation of any such accident, and restoration of the site to its former condition, by means of insurance, bonds or other financial provision".
We had an interesting debate about the polluter pays principle yesterday, when I said it is something to which we are quite happy to adhere. The Minister of State made the point that it should be central to our decision-making. When we are issuing licences, we need to ensure that those responsible for accidents will pay the cost of remediation and will restore the environment to its local condition. We need to ensure that such people or organisations have the ability, by means of insurance bonds or other financial provisions, to repair the damage that is done in the event of an accident. This important condition should be mandatory.
I support this amendment. I hope to amend this section or a similar section elsewhere in the Bill, so that those responsible for pollution will be required to cease immediately any activity that would represent a major danger to the environment and to people. A process needs to be put in place to that end. It is important that the Bill provides for the power to intervene proactively and to force those who are responsible for pollution to cease their activities immediately until a proper remediation process is put in place.
Does Deputy Gilmore wish to move his amendment?
The amendments are being discussed together.
The wording of this section closely follows that of the IPPC directive. I am satisfied, in any event, that the Bill gives the EPA the power to deal with site remediation following an accident, as appropriate. The EPA could include appropriate conditions to cover the matter under section 83 or require appropriate financial provisions to be made for this eventuality. It could use its enforcement powers under section 83 or it could initiate a review under section 90 in the event of an accident that warranted such a review or required action to be taken as part of the review. Under section 86(1)(a)(v), the EPA is required to include in licences conditions relating to what happens when there is a breakdown in plant or other equipment. I do not think the amendments are needed, therefore, as these matters are well covered throughout the Bill.
Is the Minister confident that the Bill gives the EPA the power to insist that a company has the insurance cover to ensure it has the financial means to restore a site?
That is mandatory, not discretionary.
Can the Minister confirm that it is mandatory?
I put it the wrong way around; it is discretionary but it must be followed up.
Is it not the type of provision that should be mandatory in order that companies can be expected to possess and present insurance details immediately? One does not provide that insurance against a car accident, or any other general insurance provision, should be discretionary. Is this not a suitable issue to be dealt with on a mandatory basis?
I am trying to base the provisions of this Bill on best practice. The waste aspects of the legislation have operated very well on this basis for the past six years. I want it to be consistent in this legislation too. Many of these issues are subjective, but I want to avoid making the Bill so prescriptive that everybody gets tied up in red tape. We want to see good action. As DeputyGilmore said earlier, processes can be important in themselves but outcomes are the most important matters. We will get the best results if there are good partnerships and working relationships between the EPA and the different organisations, individuals and bodies with which it interacts. There is good experience in this regard under the Waste Management Act. This Bill is on all fours with the EU directives. The proposals being made between the two Bills represent a belt and braces approach. My officials and I are quite happy that this matter is well covered in this Bill. Perhaps there is a great deal of unnecessary detail in Deputy Eamon Ryan's amendment. Deputy Gilmore's amendment is embracing and covers this area; I do not have a difficulty with it. I will return to it on Report Stage. It may meet the requirements that exist. The matter is well covered.
Where is it well covered? I missed that.
It is well covered in the various sections I have outlined, such as sections 83 and 90. Many different powers are provided for in different sections. Section 86 (1)(a)(v), for example, on page 27, states that the EPA is required to include in licences conditions relating to what happens “if there is a breakdown of any plant or other equipment”. Such provisions are scattered throughout the Bill. The amendment is a belt and braces measure. Deputy Gilmore’s amendment to provide that “the necessary measures will be taken to remedy any such accident” does not detract from the Bill but I am happy that the Bill provides for it. However, to ensure that everybody is satisfied, I could propose an amendment confirming that on Report Stage.
I am happy with that.
I will withdraw my amendment as well. However, the key to this is the ability to finance the necessary measures. If we are facing a worst case scenario in the shape of a serious accident and a serious pollution clean-up, it will mean huge costs for the company which, in many cases, will not be able to pay them if proper provision is not made. The amendment is not a belt and braces measure, but ensures prudent provision.
I am sure the Bill covers that. Each case has to be judged individually by the EPA. However, I will come back to the general point involved on Report Stage.
I move amendment No. 39:
In page 21, lines 11 to 13, to delete "return the site of the activity to a satisfactory state" and substitute "remove all sources of environmental contamination or pollution from the site and restore it to a clean and safe condition".
This is another belt and braces amendment which seeks to change the terminology. We do not have a problem with the wording of the Bill other than that it might not go far enough. Rather than just return a site to a satisfactory state, the amendment provides that all sources of environmental contamination or pollution be removed and that the site be restored "to a clean and safe condition". That is slightly more exact than returning something to a "satisfactory state", which would have to be defined.
The wording in the section reflects the IPPC directive. It requires that the site should be in a satisfactory state. The preceding wording in the subsection requires the EPA to include conditions on permanent cessation to avoid any risk of environmental pollution. This is a demanding requirement and its wording is clearer than that in the proposed amendment.
I move amendment No. 40:
In page 21, between lines 44 and 45, to insert the following:
"(iii) Environmental Quality Objectives and Environmental Quality Standards shall not be set without due consideration of the existing activities, which may be affected by the implementation of such objectives and standards or without prior notification to and consultation with those activities,".
This is another amendment which I have submitted at the request of IBEC. The body is concerned that stricter conditions could be attached to licences than would otherwise be determined by reference to BAT where this is necessary to meet an environmental quality standard. The phrase "best available techniques" is defined in the Bill. Not only is the practicality of such a provision highly questionable, in IBEC's view such an approach could have serious implications for the ability of any IPPC-licensed company to operate. IBEC believes it could lead to facility closures with resultant job losses and a negative impact on the local community.
The practical availability of technologies and economic considerations must be taken into account in the determination of emission limit values in order that they can be implemented and to avoid negative impacts. Given that this provision is in accordance with article 10 of the IPPC directive and, therefore, must be transposed into Irish law, IBEC believes there should be a new insertion into the Bill such as that proposed in the amendment.
I understand what the Deputy is trying to do but it is not necessary. Indeed, it is not appropriate in the context of this Bill to set out procedural arrangements on the determination of environmental quality standards and objectives. It is normal practice that there is consultation on key quality monitors such as this as they emerge at national level. There has always been such consultation because it would not be possible to work in isolation from the industry where major issues of policy are involved. Regardless of whether they emerge at EU level, which they sometimes do, or at national level, there is always consultation. All sectors are heavily engaged with the various bodies that advise me on various matters. There is no question of something substantial happening without consultation. Otherwise, it would not be possible to get agreement. However, one would not include environmental objectives and standards in the Bill as suggested by the amendment.
I move amendment No. 41:
In page 21, between lines 48 and 49, to insert the following:
"(5A) In reaching conclusions in relation to the criteria set out in section 83(5), the Agency shall ensure that it has obtained all appropriate technical knowledge expertise and advice to enable it to fully assess all relevant information, evidence and contentions received from the applicant and other interested parties.".
This is a straightforward amendment which requires the agency to ensure that it has obtained all appropriate technical knowledge, expertise and advice to assess the relevant information and contentions received from the applicant and other interested parties. It is important that where there are other interested parties the agency will refer to them.
This is a management issue, not an issue for legislation. We cannot legislate on that basis. It is not appropriate or usual to include such a provision in legislation. It is a matter for the management of the EPA to ensure that the necessary expertise is available. It is not a matter for the Bill.
I will withdraw the amendment and refer it to our draftsman.
I move amendment No. 42:
In page 22, lines 13 to 21, to delete all words from and including "financial" in line 13 down to and including "and" in line 21 and substitute the following:
"following financial commitments that may reasonably be entered into or incurred by him in the carrying on of the activity to which the licence or revised licence relates or will relate, as the case may be, in accordance with the terms of the licence or in consequence of ceasing to carry on that activity as it may specify, and:
(I) clean-up costs on cessation of the activity;
(II) clean-costs in the event of major accidental releases;
(III) companies shall give due recognition to standards, which ensure environmental protection and set aside financial security for such financial commitments, which may arise from emissions which are not in non-compliance with those standards.
This provision shall have effect only in respect of potential financial commitments and liabilities arising from non-compliance with conditions of a licence,".
This is a proposal which IBEC would have put to this committee if it had been given the opportunity. However, that was voted down yesterday. The provision is of concern to IBEC for two reasons. First, there is no definition of what the EPA may consider as commitments or liabilities and how these commitments or liabilities would be quantified in financial terms. Second, while provision for site remediation on cessation of activities and provisions in the event of major environmental accidents would be acceptable, IBEC is concerned that under the Bill licensed activities would be required to provide financial security for emissions made in accordance with their licence and would ultimately be held financially liable for emissions made in accordance with these conditions.
IPPC licensing in Ireland, introduced under the 1992 Act, imposes extremely high standards of environmental performance on Irish industry, including stringent emission values. They were put in place as providing the maximum level of environmental protection. IBEC believes that any provision of the Bill on financial commitments or liabilities must, therefore, be consistent with licensing provisions which provide for environmental protection. If a consistent approach is not taken, it will undermine the legislation and compliance with that legislation. Furthermore, it would call into question the effectiveness of the IPPC licence system in achieving a high level of protection and, as a result, the effectiveness of the regulator, the Environmental Protection Agency.
The provision should be amended to specifically exclude provision for financial liabilities for emissions made in accordance with the conditions of the licence.
Is there a reference here to the time scale for compliance? Would the agency have the authority, without an amendment to the Bill, to set the time in which any compliance would be required or any information would be submitted? I am not sure that it is safe to assume that it is the usual 14 days or whatever. Is a timescale required to be inserted on this issue?
Under the section, the EPA can specify the latest date by which a condition attached to the licence or revised licence is to be complied with. The argument put forward by Deputy Allen is a classic argument from the industry. One has, therefore, arguments from both sides, including the green lobby, which I understand and respect. As the person in the middle, I am trying to strike a balance and push the envelope, so to speak, on environmental quality and standards. Everyone would agree that Ireland has struck the right balance thus far.
This is a further stage in extending quality, which is not meant to undermine industry, damage its ability to function, its commerciality or competitiveness, but simply aims to ensure that we are driving forward the agenda of setting standards. In the context of the amendment, I would not like to suddenly start delimiting area and thereby going backwards.
The issue is one of balance. As the Deputy is aware, we have discussed the matter with representatives of industry and listened carefully to their views. We could have gone much further but chose not to. One will find this is the case throughout the Bill. I respect the point of view Deputy Allen represents. It is important to ask the reason we have arrived at our current position. We have largely struck the right balance in this legislation.
I move amendment No. 44.
In page 23, line 38, to delete "or the Act of 1996" and substitute ", the Act of 1996, the Local Government (Water Pollution) Acts 1977 and 1990 or the Air Pollution Act 1987".
Section 83(5) introduces a new requirement that applicants for IPPC licences should be fit and proper persons. This was welcomed on Second Stage. Section 84(4) defines a fit and proper person as including a requirement that the person concerned is free of conviction for an offence prescribed for the purposes of the section which, as the text of the Bill currently stands, can be under the Environmental Protection Act, 1992, or the Waste Management Act, 1996. However, the Environmental Protection Agency also issues enforcement proceedings under the Air Pollution Act, 1987, and the Local Government (Water Pollution) Acts of 1977 and 1990 when regulating under the IPPC code. As the agency will continue to serve summonses under the Air and Water Pollution Acts, it is desirable to include these enactments in the provision and the amendment provides accordingly. This is, effectively, a technical amendment.
Amendment No. 46 is an alternative to amendment No. 45 and amendment No. 47 is related. The amendments may be discussed together by agreement.
I move amendment No. 45:
In page 24, to delete lines 21 to 25 and substitute the following:
"(5) (a) The Agency may, if it considers it proper to do so in any case, make an application to the Circuit Court or High Court for permission to regard a person as a fit and proper person for the purposes of this Part notwithstanding that that person or any other relevant person is not a person to whom subsection (4)(a) applies, and
(b) any person who had made a written complaint to the Agency in relation to the person referred to in paragraph (a) above or in relation to any licensed activity or unlicensed licensable activity in which the person had been involved must be served as notice parties with a copy of the application referred to in paragraph (a) above.”.
In general terms, the amendments seek to provide clarity as to persons or bodies which are fit to be issued with licences and to strengthen this provision as much as possible. As I did not draft the amendments, however, it would be difficult for me to discuss their detail.
Amendment No. 45 would make it a matter for the courts to decide on any waiver of the fit and proper person requirements. It is not necessary to take up the courts' time and delay procedures in this way. The Environmental Protection Agency can decide these matters, as it already does under the waste code.
Amendment No. 46 is not necessary. By virtue of the subsection, the EPA will consider whether a person who has been convicted of an offence should still be regarded as a fit and proper person and will, therefore, consider closely the track record of such persons or bodies. The provision arose from justified concerns expressed by Deputies about the manner in which certain companies have been operating in the marketplace. It is correct to introduce the fit and proper person clause. I have difficulty accepting the relevance of amendment No. 47.
It emerged in news reports last night and during the Adjournment Debate in the Dáil yesterday that Dúchas has apparently been involved in an illegal dumping operation. It is, therefore, appropriate to examine our authorities to ascertain whether they are acting properly.
While I am deeply concerned about the issue raised by the Deputy, Dúchas is not a local authority.
It is a national statutory authority.
The investigation into the matter, which is disappointing and of concern to me, may well confirm the restructuring approach I have taken. I have spoken to the Secretary General of the Department and other senior officials to ascertain all the facts of the case, which is unsatisfactory and unacceptable and will not be tolerated by the Department or me. Ironically, the Department, as constituted prior to the incorporation of the body in question, had an excellent international standing in this regard. I am trying to recall the award it won. I agree the matter referred to by the Deputy is unacceptable. For the Deputy's information, the awards in question are known as the environmental management system awards.
As a local representative with some expertise in this area I will make a general point on the licensing issue. For many years, we have had problems with a company engaged in all sorts of pollution activity. It has been remarkably difficult for the local authority to prosecute, declare unfit or restrict the licence of the person involved. The reason it found it impossible to refuse a licence to the company was that it was not possible to take into account the previous record of persons or companies.
That is the reason we have introduced the measure. The EPA will be able to carry out this function.
In responding to the amendment, the Minister stated it would be inappropriate to have to refer to the courts.
The Environmental Protection Agency can perform this function and the outcome will be achieved faster. Deputies will agree that too many matters are currently brought before the courts. We are overburdened with lawyers doing everything and anything. It is appropriate that the EPA should deal with the matter in a speedy fashion. That would be good practice.
Does the EPA not have to go to the courts to ascertain if an offence has been committed by an applicant?
If the EPA is aware of evidence that an applicant for a licence is not a fit or proper person, it will not grant the licence. This is the correct approach and covers the Deputy's point. There are two approaches to the matter. In new applications, the qualification of the applicant for a licence will form part of the considerations whether to grant a licence. In addition, the Bill contains provisions to ensure that those who have licences behave and, where appropriate, institute disqualification procedures. This section tackles the weakness in previous legislation - I would not describe it as a loophole - which the Deputy correctly identified in the example he raised.
Amendments Nos. 48 to 50, inclusive, form a composite proposal and may be discussed together by agreement.
I move amendment No. 48:
In page 28, between lines 18 and 19, to insert the following:
"(viii) specify as appropriate the nature, composition, temperature, volume, level, rate, method of treatment and location of an emission;
(ix) specify the periods during which an emission may, or may not, be made;
(x) specify limits to the effects of an emission;
(xi) specify the concentration of an environmental pollutant in an environmental medium or a deposition or discharge rate which shall not be exceeded;
(xii) specify requirements or limits in relation to the amount or composition of any substance produced by or utilised in the activity in any period;".
I am reluctant to make a detailed case in favour of the amendments as I would prefer first to hear the Minister's comments.
Subsection 81(b) gives discretion to the Environmental Protection Agency to take appropriate action to regulate emissions. To the extent that this power is not included in the mandatory subsection, subsection 81(b) generally repeats the existing discretionary powers in the 1992 Act. This Act has already been added to by the listing in paragraph (a) of mandatory and demanding requirements to be included in licences. It is correct that the EPA should retain discretion as to whether further elements should be included in licences. For example, these may not all be appropriate in all circumstances and, as such, the EPA must have some degree of discretion in dealing with individual companies and organisations.
As I pointed out to Deputy Allen, I am trying to strike a balance between being heavy handed or overly prescriptive and achieving good outcomes. We want to bring industry with us and ensure it operates within a good regime which delivers results.
I will withdraw the amendment and return to the matter on Report Stage.
I move amendment No. 54:
In page 29, line 23, after "used" to insert ", or land proposed to be used,".
I move amendment No. 57:
In page 30, between lines 7 and 8, to insert the following:
"(xviii) specify, in cases where there are likely to be significant emissions to the environment, appropriate requirements for the purpose of monitoring the ambient environment, including the taking and analysis of samples, the making of measurements in accordance with specified methodologies and frequencies, the evaluation of the results of such monitoring in accordance with specified procedures and the keeping of records and the furnishing of information to the Agency or to any other specified person in relation to such monitoring and evaluation.".
Section 86(1)(a)(iv) of the Bill sets out mandatory monitoring requirements to be included in licences related to emissions to the environment. This does not expressly deal with monitoring and assessment requirements concerning the ambient environment. It is reasonable that the EPA would require such monitoring to be carried out in some cases. The proposed amendment will allow the agency, in cases where there are likely to be significant emissions to the environment, to impose conditions relating to the monitoring of the ambient environment thus requiring an assessment the impact of emissions are having on the environment in general. This would be of particular relevance to activities that have substantial or potentially significant atmospheric emissions, such as power plants or cement plants. This amendment will be generally welcome.
I would like more detail on the monitoring required. Would carbon dioxide or nitrous oxide emissions from a power plant or cement plant be included?
Anything the EPA deems worthy of inclusion will be included.
The Minister wants monitoring to be carried out and financed by the industries rather than by the EPA.
I do not want the whole burden to lie on the taxpayer. It should lie on the industries. It is in their interest to contribute to the monitoring system.
Under the new European emissions trading system, are we not required to record by February 2004 most of the main heavy industry or power generation sources to obtain carbon dioxide and other emissions readings, from which we could set our quota and establish our emissions trading policy? Will this have to be achieved anyway——
We do so anyway. We monitor the emissions but the amendment tries to go a step further by proposing to monitor the impact on the environment around their source. We would like to know a bit more about the other effects on the ambient environment.
I regarded "ambient environment" as a much broader concept. How does the Minister define it? Nitrous oxide might have certain local characteristics, as might carbon dioxide——
It refers to air and water quality in the immediate environment. Current forms of monitoring account for the volume of direct emissions which have to be within certain parameters, but I am trying to push the boat out and to obtain other measurements on the effect on the environment in a broader sense.
I very much welcome this provision but I am looking for more details.
It is a first step into the broader realm of information that we would all like to have. It is a starting point.
I very much welcome it. Two examples come to mind immediately, one of which is Dublin Airport. There is serious concern about levels of benzene and other airborne pollutants downwind of the airport. In Askeaton in Limerick there are concerns that airborne emissions have been responsible for some of the phenomena noticed on farms. Would the amendment necessitate that the airport take measurements outside its own boundaries?
I do not want to refer to individual cases - I am referring to cases where IPPC licences are issued. We can apply this provision to any installation with such a licence.
I welcome the proposal but am keen to gain a greater understanding of it. Will the EPA decide where measurements should be taken and which emissions should be measured?
The EPA has its own monitoring programmes but I am trying to go a step further by getting industry involved as well. It also has a responsibility to share the burden, obtain data on the environment and support and fund monitoring in a wider sense. I am trying to get other resources——
It would be difficult for an organisation providing funding to get involved in the measurement of environmental impact.
That would be done in conjunction with the EPA, which can do it anyway. It is not just a question of funding but of knowledge. The Deputy should note that some of the financial burden can be shared.
Amendment No. 59 is an alternative to amendment No. 58 and they may be discussed together by agreement.
I move amendment No. 58:
In page 30, to delete lines 8 to 16.
The Minister spoke about trying to achieve the right balance between the practical considerations of industry and the desirability of environmental protection. Too often the Bill takes into account economic costs and benefits and practical considerations but possibly not environmental protection as a first and final aim.
Subsection 86(2) recognises the distinction between the intensive agricultural sector and industry. In line with the directive, it provides that appropriate practical considerations can be taken into account in relation to specifying emission limit values for intensive agriculture. It also provides that costs and benefits can be taken into account in respect of designing monitoring requirements for the sector. The farming community, while essentially operating intensive agriculture as a business, is unique in that it is often family based and may not be in a position to raise significant amounts of capital. We have to recognise the practical constraints that apply. The subsection does so; therefore I do not accept the Green Party amendment. The subsection as currently worded allows the EPA to take these factors into account when deciding on licensing conditions in respect of pig and poultry rearing. Proposed amendment No. 59, in my name and that of Deputy Allen, will require the agency to do so. This is a reasonable approach.
One of the fundamental weaknesses of the committee system is that there is extreme reluctance on the part of Ministers to accept half decent amendments that are tabled. Therefore, I commend the Minister for indicating he will accept a good, practical amendment. I look forward to his acceptance of all my amendments.
I move amendment No. 59:
In page 30, line 11, to delete "may" and substitute "shall".
I move amendment No. 60:
In page 31, line 43, to delete "may" and substitute "shall".
This is a simple amendment replacing, as Deputy Allen has just done so successfully, the word "may" with the word "shall" in terms of consultation with the local authority. I would be interested to hear the Minister's reason they might not want to consult with the local planning authority.
The Bill's text, on liaison between the EPA and the planning authority where a planning permission in respect of a licensable activity has been granted or has been applied for, has been drafted on foot of practical experience of the workings of the 1992 Act. This amendment which seeks to reinstate the position as contained in the 1992 Act does not take sufficient account of this experience.
The Bill proposes that the agency may consult with the planning authority in relation to a proposed activity where the authority has dealt or is dealing with a planning application relating to the activity. Where further development, which has not been granted permission, is required on foot of these consultations, this will be regarded as exempt from planning permission under subsection (11), in other words, they could provide for a stronger position from the EPA's point of view.
Essentially the Bill gives a choice to the agency whether further development will be necessary on foot of a licence. If the development is minor, it can consult with the planning authority and the development will be exempt. If, however, the development will be substantial, the agency may decide not to consult with the planning authority and the additional development will require to be dealt with formally under the planning code. That is what one would want.
The effect of this amendment would be to force the agency to consult in every such case which, as good practice has shown, is not necessary, thus resulting in all development, irrespective of size and potential impact, becoming exempt from planning permission. On this basis I obviously will not accept the amendment but we actually have achieved what the Deputy is trying to achieve.
I move amendment No. 61:
In page 32, line 35, after "area" to insert "or neighbouring counties with jurisdiction".
This relates to the processing of applications to the EPA and the requirement of the applicant to inform the local authorities in which the facility is located. My concern is that the facility could be on the border of two functional areas, that is, two local authorities, and that the development, even though situated in one, could have implications for the neighbouring authority.
The Minister did state in the Seanad that informing the local authority was merely informing them of the presence of the development in their area and it was not to inform them for the purposes of monitoring of environmental emissions, but at the same time it is important that the local authorities which would be affected by the development, either directly or indirectly, should be made aware of the presence of an application.
Neither of them would have a formal role in it. That is a matter for the EPA. We have come to the point where the Deputy is correct - they should be notified. In fact, there was something else to which, for a moment, I thought the Deputy was referring. In considering the amendment we should be clear as to the purpose of the relevant subsection. The requirement on the applicant to notify the planning authority in the functional area in which the development will be located is to ensure that the planning authority is aware of all development proposals in its area and the possible implications for development control. This is consistent with section 91(6) under which the planning authority must maintain a register on IPPC activities in its area.
The notification is not for the purpose of advising any possible emission from the activity. The planning authority is precluded, under section 99F of the Bill, from placing conditions relating to emissions in a planning permission for an IPPC licensable activity because it is a matter for the EPA - we have one expert group. In fact, the local authorities themselves are just not in a position to employ this expertise anyway - they would be replicating. That is why it is left with the EPA. IPPC licences deal with emissions from activities across whatever local authority areas - they go right across the system - which might be affected and the EPA is the designated national authority to control and regulate all these emissions.
The Minister's response to Deputy Allen's amendment goes some way to allaying these concerns. I share the concerns raised by Deputy Allen in amendment No. 61. It is grossly unfair, to put it at its mildest, that local authorities, when they do have a function in any planning applications, are not permitted to consider the health and environmental effects of incineration, for example. What more important function should they be considering? I agree they should be considering traffic effects which are a health and safety function because of easy movement of traffic and because of the inherent dangers. However, it is relevant to raise the health and environmental effects here at this point because they are such a fundamental core issue and need to be revised. If that were looked at with each fresh application or if the local authorities had the power to do so, at least it would make the process up to date and ensure there is some element of local accountability.
I agree with the Deputy that this is crucially important and it must feed back into the process. The point is that one does not have this expertise available within the local authorities nor could you replicate this in 87 authorities. That is why we set up the EPA. The reason all countries have this major independent body is that highly technical expert work is involved. That work is fed back through the environmental impact assessments to the councils which have a strong role when it comes to considering the matter. That work is not done in isolation in that the totality of everything will decide the outcome.
One must remember that IPPC licensing does not relate to small facilities which could be slipped in unnoticed. One is talking about very substantial developments in themselves. It is right that there should be the best of expertise available and it should feed back into the process. The EPA is the designated body on behalf of the State to do that. This is also the case in most other countries where the big environmental agency is the repository for all this necessary expertise. One could not simply have such expertise in every local authority. For instance, how many would even be producing an IPPC licence of that nature or would be involved in something on that scale? It would not be feasible.
I was not proposing that the licensing authority would shift to the local authority. I am just suggesting that in terms of the planning application, at planning stage for a proposed development of that significance——
Councillors certainly consider all those issues.
They are not permitted to consider them. I agree we raise them——
——we get them into the public arena, we debate them, we usually win the debate and we usually win the application.
Putting this into practice would be a trans-border problem. Yesterday the Chairman allowed me to raise the question of the proposed lignite mining in Ballymoney. In that context, some of us met a delegation from Northern Ireland last week. What will be the input of the authorities in this jurisdiction on the health and safety implications and the environmental air quality implications of that lignite mining? They spoke of a high level of air pollution stretching as far as a place called Londonderry - I thought that had gone.
I was there recently. It was schizophrenic to see signs welcoming one to Derry and to Londonderry. I would agree with the Deputy.
They also spoke of it stretching as far as Letterkenny. Is the Minister aware of this development? If so, is his Department taking an active interest and involvement in it, and what other Departments are involved? Is there are interdepartmental approach to this development which will have major implications for the quality of air in this jurisdiction as well as for the quality of river waters and wildlife?
As the Deputy probably will be aware, we will raise this next week at OSPAR with the relevant Minister. I do not know the detail of it and I will not guess what might be the outcome of that, but the Deputy raises a valid point and we would need to know some of the answers to those questions. There is, of course, the question mark regarding environmental impact statements, assessments and so forth. Obviously we can and do feed into these and I am sure that will happen in the case of those who will be affected. Irrespective of the independence and sovereignty of nation states, we need much more co-operation. That is beginning to improve in some areas but we need it in other areas too.
We are all working hard to extend the Minister's brief right into the Six Counties and the sooner we get there the better.
I am sure the Deputy is happy with the new arrangements for collection. We have signed a dual contract - the first in the State - for the collection of fridges throughout the country.
I am aware of that and delighted to see such positive moves. However, I am concerned about trucks travelling across the Border. There is wanton dumping in land fills across the country. I know it is not the Minister's area, but is there anything we can do to try to curtail some of that activity, together with the Northern Ireland authorities, until such time as the Minister gets jurisdiction? Is there anything we can do to try and curtail it?
The collectors are supposed to be licensed to do this. This issue falls within our jurisdiction and included the notifications attaching to such licences. However, there is a much greater awareness of the issue and my understanding is that this type of activity is receding. The Northern Ireland authorities have become more aware of the volume and scale of what was going on and have their own concerns.
Some local authorities are working with their counterparts in local authorities across the Border and are operating checkpoints to try to spot some of this activity. Co-operation is taking place.
There is a belief in the Six Counties that we are not vigilant enough in the implementation of our regulations. Mr. Smyth spoke last week about illegal dumping from the Republic into Northern Ireland. Is there cross-Border co-operation in this regard?
There is already good co-operation and this Bill will strengthen it further. There are some legal licensed activities taking place regarding which there is co-operation and notifications are properly given. I assume both Deputies are referring to illegal activity which we want to diminish. I would not like it to be said that the Department is lax in this regard. It is not.
Are local authorities following up on incidents? I mentioned one this morning regarding cargo coming from Cork, travelling through the midlands to the North.
They are being followed up.
Does the Department demand and receive a full report on the investigations?
It depends on the case. However, other agencies are directly involved in the matter. In the first instance it is a matter for the local authority.
If a load bound for Northern Ireland is being carried out of Cork into other counties and an accident occurs, say, in the midlands, surely the Department would take an active interest and ensure that the local authorities involved brought their investigations to a conclusion. One incident was mentioned in Northern Ireland——
There is no question but that if any of the local authorities wanted our assistance in any way we would give it to them. The local authorities have strong and wide powers in this area. They have the right to exercise them and, in fairness to them, they do. There is now a much more robust approach by local authorities. If an issue arises out of this, the Department will become involved.
However, I do not want to bring a nanny state to bear on the issue by suggesting that responsibility lies with someone up the line. We want to keep this at local authority level. The more they involve themselves in this and their own successful developments in waste management, the more they are becoming focused on illegal activities and do not want to see them. If trans-shipments are taking place which involve transiting other local authorities' areas, we must immediately establish from where the waste is emanating.
I do not want the local authority, in whose area the accident happens, saying it should be investigated by the county from which the cargo originated and the other county saying that, since the incident happened in another county, that county should investigate it.
I agree. I do not want that to happen either. It should not happen and I will get an answer to that question. I am aware of the case to which the Deputy refers and I would like to know what has happened.
Amendment No. 64 is an alternative to amendment No. 131 and both may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 64:
In page 33, between lines 35 and 36, to insert the following:
"(c) where an application for a waste licence for an existing waste management facility was made and subsequently withdrawn at any stage prior to the Agency issuing its final decision, an application must be made to the Agency for a licence for the remediation, rehabilitation and aftercare of the facility within 3 months of the coming into force of this section which application cannot be withdrawn, by the original application or where that original applicant was a company which no longer exists by the directors of that company.”.
I have personal experience of a person to whom I can only refer to as a cowboy and there are many people working in waste management facilities that can only be described as cowboy operations. We use the opportunity the Bill presents to say that if such an application from an existing waste management facility is withdrawn, the company or individuals involved in such an activity would be pursued first to apply for a licence for the remediation, rehabilitation and aftercare facilities that they had in operation and that they could not hide behind the law by closing down a company. We fear that the waste management area is characterised by transient operators who are working outside the law and it is important we pursue them when it becomes apparent that a waste management facility exists and where a licence is not applied for or, if it is and then withdrawn, that we do not leave it at that and proceed to get the individuals to remediate the facility they have.
It is a fundamental requirement of the Waste Management Act that an operator of a waste facility such as a landfill must have a waste licence. An operator who contravenes this requirement is guilty of an offence and can be subject to appropriate enforcement action. Therefore, I do not see the advantage in legislating for cases which envisage an operator withdrawing an application as these amendments seek to do, when an operator is legally obliged to apply for and hold such a licence and can be pursued in the event of non-compliance. The Waste Management Licensing (Amendment) Regulations 2001, prohibit the withdrawal of a licence application for an existing facility. Therefore, the situation envisaged should not arise. In any event, section 41(2) paragrapn 15 of the 1996 Act provides that the agency, in issuing a waste licence, can impose conditions relating to the closure, restoration, remediation and aftercare of a facility. In addition, paragraph 13 of the same subsection enables the agency to impose conditions in relation to the maintenance of insurance policies in regard to the operator's liability arising from the activity.
It is also worth noting that the enforcement powers of the agency are being strengthened further by section 31 of the Bill which extends to the agency the powers under section 55 of the 1996 Act. Among the issues which can be included in notices under section 55 are requirements in relation to mitigation and remediation. We are more than well covered.
The Minister made a reference to whether an incinerator would be treated under the Waste Management Act or this Bill. I am trying to think of an example of the type of facility we are referring to in this amendment. For example, a small operator might be burning or recycling old materials and possibly burning off some of the plastic and exposing copper and valuable materials which could have serious local environmental effects. This could be seen as either a waste management or a recycling facility. To take that example, how would that be seen? Would that be defined as waste management or could it be——
No, it is a matter for the EPA. It is not that there are less onerous provisions in either of the Acts. They are on all fours with each other. It is a matter of how the EPA will define the totality of the activity that is proposed. That is all I meant, and I just wanted to give the Deputy that information.
I am trying to find out when the waste management legislation would apply and when this Bill would apply. I am trying to think of other examples. One might have a small facility in the middle of a domestic area which is carrying out a smelting or industrial business that could have emissions implications. It would not be a waste management facility and probably would be more appropriate to this legislation——
We will deal with this in some detail under section 25 so if the Deputy wants to wait until we reach that stage we will, in fairness to him, come back to that issue in a more detailed way.
The Minister may be aware that motion 131 in the name of Deputy Gilmore is a co-motion. I do not know if Deputy Gilmore wants to move that.
I will not duplicate the debate on this.
I move amendment No. 75:
In page 34, lines 42 and 43, to delete "shall have an absolute discretion to" and substitute "may".
This relates to where oral hearings are sought from the agency. The Minister is proposing that where a request for an oral hearing on an objection is made, the agency shall have absolute discretion to hold an oral hearing. As Lord Acton said to Bishop Creighton, "power corrupts, and absolute power corrupts absolutely." It is often not right to give absolute discretion to a public authority, and I am seeking to limit that power somewhat so that there is some degree of comeback on the agency if it decides to refuse an oral hearing. There may be some circumstances where this ought to be revisited.
The proposed wording is not as clear as the text of the Bill. There is a value in maintaining consistency between the IPPC and waste codes, and the absolute discretion provided in the Bill mirrors exactly the provision in section 42(11) of the Waste Management Act 1996 in relation to the decision on the holding of an oral hearing on a waste licence. I propose to retain the clear decision-making power of the EPA in this area and maintain consistency. I do not want to create a difference between this Bill and the waste code Acts.
As the Deputy knows, I have broadened this area very substantially in this Bill. One of the frustrations of the public was that there was not enough right to have oral hearings. I would like to see a lot more oral hearings. The public deserve that. A lot of the angst and uncertainty could be removed by public hearings. I have given the public a right in this Bill to request an oral hearing, which was never there before. However, I do not want to end up with differentiations of emphasis. The clarity here is exactly the same as in the waste management legislation, but we have now started to move substantially beyond that. I have now given an absolute right to the public to request an oral hearing.
A lot of the issues that have caused great public concern could have been resolved a lot more easily if proper oral hearings had been granted to people when they requested them, instead of denying them. That is why I wanted to put this provision into the Bill and why I am trying to do it this way.
The Minister can iron out the inconsistency by going in the other direction and eliminating the absolute nature of the discretion——
Certainty in law is part of this. I do not want doubt in this area. There is absolute certainty in the Bill, and I am dealing with the other issues in other ways.
The word "absolute" seems to mean that an applicant would not have the right to apply to the High Court, for example, because the agency has an absolute right. Therefore, there is no recourse to the High Court, or if there were it would simply be to——
I am giving the agency absolute discretion. The Deputy wants to lessen that to say that it does not have discretion. One must be careful about the interpretation here. Absolute discretion means absolute discretion. If we start watering that down, others will argue that the agency does not have absolute discretion to make decisions, for example, in relation to those who might not want a hearing. Discretion is the important word here. It makes certain that there is absolute discretion to grant hearings, not absolute discretion to go the other way.
It is something that might need to be reviewed in light of experience. I will not press the issue today.
I move amendment No 78:
In page 35, line 17, to delete "as expeditiously as may be" and substitute "within 3 months".
A specified time limit should be provided because the term "as expeditiously as may be" is too vague. Decisions can drag on and people can be kept waiting at the whim of the agency. I propose inserting a provision here for a three month time period. Local authorities in particular can often string out decisions on planning applications. I know this is not a planning application issue but local authorities can string the process out by looking for further information. Even though they may have done no homework on an application, when the two month period is up they look for more information and put on hold a planning application to buy themselves time. That can lead to considerable inconvenience, upset and cost to the applicant, and there should be a clearly defined time period in the Bill. The terminology used in the Bill is too vague and gives a free hand to the agency.
There are various provisions in both the 1992 Act and the 1992 licensing regulations made under the Act which put time limits on various aspects of the licensing process. These include, under section 87(3) of the new Part 4, an eight week limit on the EPA to issue a proposed determination from the date of receipt of all relevant information. This is extendible only with the agreement of the applicant. Under the 1994 licensing regulations, there is a four month time limit on the EPA to issue a final decision where objections are received, starting at the end of the period for objections. This can be extended in complex cases by the agency.
Analysis of the agency's performance in 2001, the latest year for which full information is available, showed compliance with the statutory obligations in terms of processing applications. Delays in processing licences occur in the supply by applicants of all information necessary to fully assess their proposals. It is largely the applicants rather than the agency who cause the delay. The agency receives licence applications which often involve considerable technical complexity, public interest and importance of the environment. All these very important factors feed into the process.
These considerations have to be balanced against the need for an efficient decision-making process. The current legislative framework provides this balance with the other factors that I have mentioned. The first accusation that would be made if I did this is that I would be limiting public consultation, that what I am really at is trying to get decisions produced within three months to exclude the public. It can be very subjective. The way it is working, with the various other caveats, is reasonable enough. Most of the delays are from the applicants themselves who are generally seeking more time. I do not want to have a situation where we have to discard applications on the basis of this, and then have to go back to the start all over again.
That is because numbers——
I am waiting for the figures of 2002. I hope we will have them shortly and I will make them available to the select committee.
The 2001 figures?
The 2001 figures we have are good and within the existing statutory limits.
Amendment Nos. 79 and 80 are deemed out of order.
Amendment Nos. 81 and 82 are related and can be taken together. Is that agreed? Agreed.
I move amendment No. 81:
In page 35, line 29, to delete "8" and substitute "12".
I am coming from a different direction from Deputy Allen. I am concerned that we are not giving enough time for the public to make appeals, particularly where the application was not accompanied by proper public notice. There is genuine concern that if proper notice is not given, that is unfair and unjust.
Most of these cases will be big, most of the appeals will be contentious and everyone will know about them. Given the complexity that will be involved in many of the cases, eight weeks - from the date of the application - is a short period. Instead, 12 weeks for a group of concerned individuals to review the reasons for the licence being granted or not is an appropriate period. I fear that a period of eight weeks is too short and that 12 weeks would be more appropriate.
In the second amendment, we are looking to ensure that there is proper public notice. This is an important provision. In the interests of justice, if a smaller application went through without any real public notice being given, there is a real concern that interested parties would only find out after the eight week period or until it goes to construction. Maybe I should take the point up with Deputy Allen, but my concern is that we allow the public room to appeal, to ask for a judicial review or whatever the procedure, to object to the granting or the failure to grant a licence.
As I said earlier these things can be subjective. The experience is that it is working well. There is not a need to change the dates. There will always be exceptions and complicated projects that go over the time limit. However, we have to have reasonable timeframes. They are not set down to stifle but to give people reasonable guidelines from which to operate. I am caught in between the two but I believe it is fair.
I am between a rock and a hard place. I withdraw the amendment.
I move amendment No. 84:
In page 35, between lines 41 and 42, to insert the following:
"(13) When calculating the appropriate period or any other time limit under this Act or in any regulations made under this Act, the period between the 24th day of December and the 1st day of January, both days inclusive, shall be disregarded.".
The purpose of this amendment is to avoid difficulties arising from the impact of the Christmas period on time limits under the legislation. For example, when the time to object to the EPA's proposed determination or draft decision under section (87)(2) expires over the Christmas period, most consultants and experts that third parties would require to assist in drawing up objections are on holidays and the agency offices are also closed for a limited period during this time.
The amendment proposes that a period between 24 December and 1 January shall be disregarded in calculating the appropriate period for the making of objections. That should be acceptable to everyone. There will be no skulduggery.
Amendments Nos. 85 to 87, inclusive, are out of order.
I move amendment No. 88:
In page 36, line 19, after "licence" to insert "and shall specify the reasons for granting or refusing the licence in its decision, and this information shall be available to members of the public".
The Minister for the Environment, Heritage and Local Government rightly said everything must be open and above board in terms of the application and review process. That leads to less disquiet about any potential decisions. I was thinking of recent examples in the separate but similar field of An Bord Pleanála decisions. Let us take the example of the Corrib field. Regardless of what one thinks of that decision, I was impressed that it was fully explained how An Bord Pleanála came to arrive at their decision. This leads to better argument and a concentration on the issues rather than speculation as to what were the reasons. In this amendment we are seeking to insert the clause that the agency should specify the reasons for granting or refusing the licence.
We are in agreement here. The EPA is required to do exactly what the Deputy has just said. I agree with the point made that information leads to better argument. The EPA is required to give this information. I do not know how the impression came about that they are not.
In this legislation have we specified that they should?
In the Environmental Licensing Regulations of 1994, articles 27 and 28 require the EPA to give reasons for its decisions.
That will apply to any new licensing measures?
Yes, that regulation is still there.
Amendments Nos. 89 and 90 are related and will be taken together. Is that agreed? Agreed.
I move amendment No. 89:
In page 36, line 20, to delete "may" and substitute "shall".
This amendment proposes that the Minister shall make regulations with regard to the oral hearing rather than may. On the basis of what the Minister has said, this is something we want to be open as possible. I cannot see any situation in which it would be appropriate not to issue regulations. I hope the Minister concedes that "shall" is more appropriate in that case.
It is important that any such regulations be brought before Dáil Éireann. There will be public and political interest in this matter. Following the abolition of the dual mandate, where Members will not be involved so much at a local level, it is appropriate that information is brought to the Dáil where the appropriate Deputies can see the regulations and what is set out. Otherwise we are relying on Deputies who are busy, trying to get access to information as to when oral hearings are to be held. It is appropriate that in the spirit of openness the Minister has endorsed, Dáil Éireann is kept fully informed about the regulations as soon as they come into force.
Amending the word "may" to "shall" in this section will be overly prescriptive. It is not only customary but sensible practice to provide for discretion to make regulations rather than making it mandatory. I do not intend to depart from the established practice. Regulations made under this Bill, except where otherwise stated, will be laid in the normal way before the Houses of the Oireachtas. The EPA Licensing Regulations, 1994, already prescribe matters with regard to oral hearings. Under section 41 of the Bill these are obviously covered. I have made all the regulations. They are already a matter of law and I am keeping them all in force.
The Minister said in response to his first question, that it is "parliamentary drafting". I may be paraphrasing him incorrectly.
I do not want to be overly prescriptive. I have already made all the regulations.
In terms of Deputy Allen's earlier amendment, where the Minister was looking to have the agency take into account business considerations, he made it prescriptive in that instance.
It depends on the context. I started out by saying that in this section it does not need to be overly prescriptive. In other sections it needs to be prescriptive. I have made the regulations and any further regulations will be laid before both Houses of the Oireachtas. Deputies and Senators will be directly involved.
The Minister referred to existing regulations. We are dealing here with regulations regarding oral hearings. Is the Minister saying that there already exists, in relation to those oral hearings, a framework by which the Dáil is informed?
Yes. Those regulations already exist.
Under the same EPA licensing or under the legislation referred to earlier?
Under the Environmental Protection Agency Act 1992.
Amendments No. 92 and 95 are related and may be taken together by agreement.
I move amendment No. 92:
In page 36, line 29, to delete "licences." and substitute the following:
(d) the public consultation procedures that will accompany the process of application for, or review of, licences or revised licences.”.
The regulations already cover the public consultation procedures. The amendments seek to cover something which is already provided for.
Again referring to previous legislation.
Yes. I will send the Deputy a copy of the legislation. I have no problem with these regulations being available.
The Minister will appreciate that it can be difficult when we are dealing with legislation which——
We are not being smart or tabling amendments for the sake of it.
No. I have been a Member of the House for a long time, since the 1980s, and I have experienced all such difficulties. Regarding committees, I have at times found it very difficult when Ministers sit across from me and refer back to legislation. I am happy to confirm to the Deputy the stage at which the legislation is and I have no difficulty with the question asked.
I am happy too, if a previous Minister had seen the wisdom of what we now seek to do, to accept that. On the basis of the assurance by the Minister that the provisions we are looking for exist in the current legislation, I am happy to withdraw both amendments.
Because the legislation is complicated - we are referring back to the Environmental Protection Agency Act 1992 and other Acts with provisions relating to the EPA - would it be possible, where we have amendments such as these, for officials to provide us with a brief comment in regard to such amendments, perhaps that the matter has been "already catered for" under a particular Act and perhaps supplying the reference to that Act so that we could cross-reference and to a certain extent eliminate some amendments on Report Stage? From our viewpoint it would then be very easy to see that particular matters had been catered for.
In a perfect scenario we would be happy to do that.
Yes. It is simply a question of getting through such things from an official's point of view. In a relatively short space of time that is hard to do. Is the Deputy taking over the environment brief?
That is not to be decided yet.
I was about to congratulate the Deputy.
I was lying on my back for the past week or two and I have missed things.
I have not yet been promoted.
We will facilitate the Deputy in any way we can.
That would be appreciated, particularly where there is a block of amendments.
We can give the Deputy my speech.
Amendments Nos. 94 and 124 are related and may be discussed together by agreement.
I move amendment No. 94:
In page 38, line 33, to delete "3" and substitute "2".
This relates to the review of the licence, after three years, by agencies or the agency relating to the licence. It is in the interests of environmental protection and safety that I urge that the period be reduced to two years. I thought that the agency should have the right to carry out a review at any time if it found that the licensee is not behaving himself or herself.
It has that right in certain serious circumstances. I am trying to find the balance for industry. Changing the relevant period from three to two years would put an even heavier burden on industry. Industry might want the period to be five years while one of your colleagues might prefer a period shorter than two years, and I am trying to find a balance.
Under what circumstances would the agency have the right referred to?
If there were a big change in the technology applied, if the emissions were obviously having a bad effect on the environment or if something overt was happening, the agency could move in very quickly. That is as it should be. I would not like, nor would the Deputy, if something disastrous were going on and the agency could not interfere for two or three years. There was such a case recently where certain practices came to light and the EPA came in immediately.
Amendments Nos. 97 and 98 are consequential on amendment No. 96. Amendments No. 96, 97 and 98 may be taken together by agreement.
I move amendment No. 96:
In page 38, to delete lines 42 to 46 and substitute the following:
"(a) in the case of a licence or revised licence-
(i) refuse to grant a revised licence, or
(ii) amend the licence by altering any or all of the conditions thereto (and a licence that is so amended is referred to in this Act as a 'revised licence'), or".
These amendments provide the agency with a clear power to refuse to grant a revised IPPC licence. At present, the 1992 Act is silent in relation to the refusal of a revised licence by the agency. Where such is applied for, it does not expressly give the EPA power to refuse a revised licence when sought by a licensee. Section 83(1) refers only to refusals of applications for licences. It is desirable that the EPA has the power to refuse an application for a revised licence, for example to deal with a case where a licensee applies for a revised process which will have an unacceptable effect on the environment. The proposed amendments provide accordingly.
I move amendment No. 97:
In page 39, line 20, after "(a)” to insert “(ii)”.
I move amendment No. 98:
In page 39, lines 23 and 24, to delete "that subparagraph (ii)" and substitute "subparagraph (ii) of subsection (2)(b)”.
I move amendment No. 99:
In page 39, line 40, to delete "substantial" and substitute "up-to-date".
The term "up-to-date" adds greater meaning in terms of keeping up to date with the best available technology. The terms are effectively the same. I ask the Minister to accept my common-sense amendment.
I do not know where the Deputy is coming from. Any time there is a review, it would need to be a substantial review. Otherwise there would be a review every week or two. We are promoting the idea of a substantial review, otherwise every small issue would come up for consideration. The present wording is fine.
I move amendment No. 100:
In page 39, lines 43 and 44, to delete "without imposing excessive costs".
Why should we be concerned about costs when we are trying to protect the environment?
In a perfect world one could ignore costs but there are certain instances where one must balance the environment against the economic impact on jobs and the effect on a whole group of employees where they are clearly moving in the direction in question. The wording "without imposing excessive costs" gives us that necessary balance. Industry is working that way. The fundamental approach I wish to take with all such matters is that we make good progress, moving forward in partnership - particularly with the EPA working with industry - understanding where we are going and whether technology is leading it, and giving industry time to feed that technology in. We cannot expect to force industry to do something overnight before we shut it down - provided it is not doing something that seriously degrades or destroys the environment. It is a matter of balance. In fairness to Irish industry, in comparison with many competitors internationally, it is doing quite well.
I would like to raise the Minister's earlier point when he said that some of the amendments were already understood in the Bill and asking why we should write them in and tie matters down unnecessarily. I suggest that "without imposing excessive costs" in this instance is doing just that. If that turns out to be the case, we assume there is an element of discretion, but when one writes it in as part of the Bill like that, the promoters would be able to claim that virtually anything would impose excessive costs. I am very dubious about it.
That has not been the experience. This mirrors what is in the directive exactly. It was fought for hard at a European level and discussed for some time in the directive. It mirrors the directive's exact words, bringing realism, fairness and reality into it. I take the Deputy's concern on board. If it were obvious that those directives were not being taken seriously, we might need another discussion, but it is clear that they are, for both Europe and Ireland. There is a recognition, however, that one cannot change the world overnight or do it wrongly without taking account of some of the economic balances that have to be in place. However, driving the standard ever higher is at the forefront. The directives and we have been doing that, and Ireland has been very good at it. There is no question that as we move forward standards will continue to rise.
Why not examine it in the same context as earlier amendments, where there was no need to state matters explicitly since they might have been too heavy, perhaps strengthening the Bill more than people might like? There was an element of discretion.
I am keeping it consistent with European law. I have transposed the directive. I do not want a different set of circumstances applying to Ireland than apply elsewhere. We should be playing on the same pitch.
This offers an escape hatch to offenders. I accept the Minister's argument that it is in European law, which we should try to mirror without variation. However, who defines "excessive costs"? Who makes the judgment on that? It is an escape hatch out of which offenders can get quite easily by arguing that they cannot meet the costs.
I do not want to discuss specific companies but I am sure the Deputy would agree with me that there are large segments, for example, in this country's energy sector, where one could march in tomorrow morning and demand the meeting of a certain standard. One could shut them down and undermine the whole economy since there would be no energy to meet our needs. We do not want that. We must manage the process and encourage them to invest. Some levels of investment are unachievable and in that case we must make the companies change their ways. If they cannot rectify what we feel is the unacceptable operation of a plant, for instance, we must give them time. It cannot be done overnight. I can envisage those difficulties and while I do not want to get into a completely different area of discussion, that is why we are going to have emissions trading, for instance. The world has decided under the Kyoto agreements that there will be emissions trading. That is necessary because some things are simply not possible. That is why there is a balance there.
The Minister has made his argument.
I cannot avoid making the point that the emissions trading system the European Union is setting up is effectively giving the quota free to industry. As a nation, we still have to pay. Roughly one third of our emissions comes from the industrial base, one third from agriculture and one third from domestic and other uses, including transport. In our emissions trading system, we are effectively saying that the industrial sector will not have to pay. However, we will still have to pay as a country. Those who will end up paying are the one third of agriculture and one third of consumers, for we are giving the emissions trading certificate free to industry. It depends what level we set it at and how much we give it.
I am bringing in carbon taxes.
I think we should bring them in too. I am all for carbon taxes as the Minister knows. It relates to the general argument of how we set a balance. That which we are setting in our emissions trading system is totally in favour of the large industrial user, probably because it was set by countries such as Germany, France and England, which have large industrial concerns. However, if we are talking about balance in this Bill and looking after industry, there is no doubt that the balance is heavily weighted in its favour when it comes to the new emissions trading system.
Perhaps it was wrong of me to raise the issue. I did so only as an example for I feel it made the point I was trying to put across at the time. There is no doubt that we will have a major discussion. The issue of emissions trading has had several of my ministerial colleagues and me intensively engaged for the last few months. It poses a tremendous challenge to Ireland given what has happened to our baseline figures since 1990. It is an enormous challenge for us to meet and it will not be free or simple for anyone in the system to achieve. However, that discussion is for another day.
This relates to what we are discussing in this Bill when we talk about balance in what we decide. It seems that we have a strong, consistent desire to go forward into the next ten years but that the balance will be set in favour of industry when it comes to emissions.
I do not agree.
I move amendment No. 101:
In page 40, between lines 3 and 4, to insert the following:
"(v) where the Agency becomes aware that the public notice requirements were not fully complied with when the licence was applied for, or
(vi) where the Ombudsman has found that there were flaws in the process whereby the licence was originally granted,".
The agency should be able to review the licence or licence application if it has found that the public notice requirements were not fully complied with or if the Ombudsman has found flaws in the process. That brings us back to the point that we must reinforce matters to ensure proper public notice is given in all licence applications and due process followed. This amendment would further secure that desire.
The Environmental Protection Agency (Licensing) Regulations 1994, make quite clear the necessity of giving public notice in the prescribed manner and that failure to do so will be dealt with by the agency in its consideration of the licence application. I have already said that the EPA pays particular attention to that issue and visits sites to check notices. On occasion it requires applicants to put up new notices and publish fresh newspaper advertisements. I have seen that happen. The matter is checked and action taken before the EPA considers applications. It is of course open to the Ombudsman to consider the process followed in cases taken before him and to make appropriate recommendations.
The Minister is understandably saying that existing regulations require the EPA to ensure proper public notice requirements. Our concern is that its ability to review a licence should take account of any failure of the public notice system and what the Ombudsman says about whether the process has worked. That is different from the EPA being required to ensure public notice requirements are followed at the time of the application. Sometimes things do not go as planned.
There are fine phrases here which I am sure lawyers like to see in legislation, for example, the word "flaws". What exactly does that mean, and how is it to be defined? I am well aware through practical experience of what the EPA does regarding such matters. It checks before the companies start the process to ensure that the licensing notices and so on are in place. It regularly insists on new notices and fresh newspaper advertisements. That is one of the first things it does when a licensee comes through the door. If there is certainty in the system and it is working well, we should move on.
So the Minister does not believe that failure to provide public notice should be cause for a review where a licence has been issued.
It is all well covered by the EPA itself, and it is at its discretion to deal with such matters. I believe that it does so and that it is serious.
It can decide to review licences.
The powers of the EPA are quite substantial, and it is up to it to ensure compliance. I will not do its job for it. It is up to it to work within the legislation passed by us.
So it would not be precluded from reviewing a licence if, for example, the Ombudsman came back and said that the process was flawed or incorrect? I do not know the correct legal word, but I am sure that we could get lawyers to tell us.
It has powers to ensure at the start of the process that everything is done properly.
Can it review a licence if that is not done?
Not on the basis of a notice. I doubt that, to be perfectly honest.
Can it do so on the basis of the Ombudsman coming back and saying that there were difficulties?
That is open to question.
Is this not therefore a wise amendment to put that beyond question?
I am speaking on the basis of legal advice that I have received. I do not know what the word "flaws" covers. If the Deputy wishes, I can come back to him.
Perhaps the Minister might accept the general intent of the amendment and come back with wording to meet the legal requirements.
I can come back to the Deputy on the legal definition that I obviously require on this.
We come to amendment No. 102 in the name of Deputy Cuffe. Amendments Nos. 107 and 110 are related. We can discuss them together, by agreement. Is that agreed? Agreed.
I move amendment No. 102:
In page 41, between lines 23 and 24, to insert the following:
"(8) The Agency shall give notice of its intention to carry out a review under this section to all parties who objected to the licence before it was granted and to all parties who had made a written complaint to the Agency in relation to the licensed activity.".
We seek to put across a principle which we feel should be enshrined in the legislation, namely, that if a review is carried out and those involved at an early stage in an appeal or who had contacted the agency regarding a licence are consulted, they will be referred back on the basis of the notice of any application. It is part of our general intent that there be full openness and that anyone who has expressed an interest be updated on the latest stage of an application.
We have gone through some of this. We should not forget that the Bill before us is extending the scope of scheduled activities to be regulated by the EPA, including in section 85 new transboundary consultation arrangements, giving new powers under section 99(h) for any person to seek a High Court or Circuit Court order about unauthorised activities in a whole range of areas. However, I do not want the Bill to become so tightly written that bureaucracy becomes its driving engine. In this Bill, regarding the other legislation and the regulations which I highlighted and our knowledge of how the system is operating, there is a good solid basis for us to retain what we have where necessary. I understand from where the Deputy is coming, but such amendments pose the danger of our becoming over-bureaucratic, and it is not necessary.
I take the Minister's point that he does not want to have an agency such as the EPA spending its time stamping and posting letters, possibly neglecting some of the scientific and other investigative work that it should be doing. I consider this keeping those who have lodged an objection to an application informed of any revised application or amendments to it. It is not a huge bureaucratic requirement but a matter of keeping people informed, which, as the Minister has said, probably leads to better acceptance of decisions in the end. We are all well aware of people who claim that they were never told, and there is nothing worse than that.
I have been working hard on all this all day. I have no difficulty with amendment No. 110, and we will come back with an amendment on Report Stage which reflects it.
I appreciate the Minister's decision. I can go back upstairs and hold my head up high when I hit the sixth floor.
I move amendment No. 103:
In page 42, between lines 7 and 8, to insert the following:
"(7) The Agency shall maintain a website with the register and as much of the relevant files available on it as practicable.".
We are on a roll. Even if one is arguing about bureaucratic structures getting in the way of the business of the EPA, no one could argue that the maintenance of a website and a register of applications, and putting as many of the relevant files onto that as possible, would involve bureaucracy. It would probably lead to a reduction in bureaucracy.
It is already there. The agency is already doing that.
Regarding applications under this new Act for EPA licences?
All that is on the website, which is very good.
Is there any harm in our making it a statutory requirement that it keep a register of applications?
It already has a register. The website is not the sort of thing to put into legislation, but I can confirm to the Deputy that what he seeks, and more, is already happening.
I take the Minister's earlier point about not wishing to cover management issues in legislation.
I am happy to say to the Deputy that it is all happening.
There is a fine line between not getting into a company's management details while at the same time setting certain targets or requirements so that is not jettisoned or allowed to lapse.
One of my policy views on the EPA, as with many others, is that the more information it makes available in the public domain, the better for everyone. I subscribe absolutely to that point of view. If one is going to bring people with one and win the argument, more information, as one of the Deputies said, has a big plus side. The opposite always has a terribly negative effect. People feel that they are not getting something, and then there are suspicion, concern and worry straight away. On the other hand, if one is pumping out the information for all to see, at least people can make a reasoned judgment on that. It is on the website, and I can confirm to the Deputy that there is a register.
The Minister argues that mentioning that is not appropriate in legislation.
It is a management function. There is always a difference between trying to micro manage and setting out in legislation the clear policy and law on a subject. I do not want to get into micro management.
Access to public information is important. They will all be very contentious public issues. We are talking about issues about which people will feel very strongly. They will feel so about their right to have access to information. As the Minister said, the more information we make accessible, the better it is for our society across the board.
There is no disagreement.
Inserting a legislative requirement that we keep a website with an up-to-date register is not merely a management issue but one of rights. It is appropriate beyond issues of management.
I am sorry to cut across the Deputy, but the agency acted ahead of us. It did not need legislation to tell it what to do. Why should we now come back with legislation when it has already done the right thing? We should encourage it to act without always having to wait for us legislators to tell it. It has done so, and it is very successful. It would be a kick in the teeth for me to come back to the agency and say that I was writing the requirement into legislation when it is already fulfilling it. Next it will say that it will not bother doing anything individual any more, for management will be doing nothing apart from transposing legislation. That is not the right approach. One must get good management and encourage it. The agency is already doing everything that the Deputy mentions in the amendment. Legislation was not needed for it to do that. It was good management practice. I have said to Deputies on both sides of the argument that there is always a danger that one can make all the law one likes - we have experience of this - but it does not necessarily deliver at the other end. Good people acting on the basis of what they are operating under can deliver good results. The EPA is a typical example - it is way ahead of me or anybody else who may try to dictate to it on legislation. There is no point trying to include in legislation something the EPA is already more than doing. That is my approach.
As amendments Nos. 105 and 132 are alternatives, they may be discussed together, by agreement.
I move amendment No. 105:
In page 42, between lines 46 and 47, to insert the following:
"(5) Where a planning authority or An Bord Pleanála by condition require it, a waste management licence shall be necessary for the remediation of a contaminated site.".
My colleague, Deputy Gilmore, may wish to discuss these amendments first.
We know that the waste management applications process has two stages, the first of which is the planning application for the facility. The second stage is the licensing application if the planning authority makes it a condition of the planning permission. My amendment No. 132 proposes that a waste management licence be necessary for the remediation of a contaminated site. The Bill does not make it clear that such a licensing requirement will be necessary. I wish to bring the planning conditions into line with the licensing regime and to make it clear to the planning authorities that they are entitled to make it a condition of planning permission that a licence be obtained for the remediation of a contaminated site.
I understand from where the Deputy is coming. This issue relates to a point that was made earlier. This does not have anything to do with planning per se as the planning authorities and the EPA have their own codes of discipline. The EPA and not the planning authority is responsible for the licensing system under the Waste Management Act. A planning authority cannot suddenly decide to amend the law in this area as it goes along as it is a function of the EPA. The EPA will make such decisions as necessary when it receives applications. Deputy Gilmore has spoken about the remediation of a site, which is absolutely a matter for the EPA which is in a strong position to do so.
Is a planning authority entitled to make it a condition of planning permission that the applicant has to apply for a licence?
No, it is not.
That is the point.
One would cross over into planning law in such circumstances and end up with the planning authority interpreting the Waste Management Acts and other legislation. Under the system we have adopted, these issues are within the competence of a single independent organisation, the EPA, on a national basis. They are not being dealt with through the planning authorities.
I understand that, but there is a cross-over here. If a site is contaminated——
We have one at the moment in the case of Irish Steel.
One can refer to a number of sites; a gas installation was mentioned recently. I am interested in what will happen if an application is sent to a planning authority for the remediation of a site, perhaps in advance of its redevelopment as in the case of the gas site. When the planning authority examines the planning application it may decide that waste issues rather than purely planning issues have arisen and the remediation might require the removal of waste from the site, for example. In such circumstances, it seems reasonable that the planning authority should be able to say that it is a waste issue. The planning authority should be able to make it a condition of the planning permission that the applicant has to apply for a waste licence so that the issue will be addressed. It could mean, for example, that waste has to be removed from one part of a site to another, depending on what form of waste is on the site. A waste licence would be required if the material was going inab initio or it might involve the removal of waste from the site altogether to another place where many of the issues that would normally arise in the course of a waste licence application would arise.
The Minister has confirmed that the planning authorities cannot make it a condition of planning permission that an applicant has to apply for a waste licence. I am arguing that the planning authorities should be enabled to make that call. In such circumstances, the waste licence would become a matter for the agency to determine.
I understand what the Deputy is saying but his plans would change the entire basis of the country's system. It is obvious that a planning authority can take the general question of environmental pollution into consideration in its planning. We cannot change the legislation to the extent suggested by the Deputy. The law in this country is quite clear - waste management functions, duties and responsibilities are vested in the EPA under the Waste Management Acts. They are not functions of the planning authority and it is not for the planning authority to suggest that an applicant needs a licence. The EPA is an independent body which must decide on the basis I have outlined. I am sure local authorities often ask questions to satisfy themselves as to the outcome of any given individual scenario in the course of their duties. This area is absolutely the EPA's remit, however, and not that of the planning authorities. I understand why the Deputy is making this suggestion, but to adopt it would be to change completely the entire legislative approach and its basis and the planning authorities would end up interpreting the Waste Management Acts, which we do not want.
Is a planning authority entitled to ask an applicant to establish from the EPA whether a licence is required? If an application is made, could an additional letter be sent, asking whether the applicant has checked with the EPA whether he or she needs a licence? Could the applicant be required to produce some evidence from the EPA in relation to whether a licence is required?
I answered that question in a different way a moment ago when I said there is nothing to prevent a planning authority from asking the EPA whether a facility will require a licence. I am sure that question would be raised in the discussions of the matter by members of local authorities. There is no difficulty in that. If they come to it cold, I hope the good practice we are trying to establish will mean there will be a parallel effect in relation to these facilities. I hope people will apply for licences and ensure that all the pre-planning procedures are in place. There is nothing to prevent the local authority from asking the EPA, for example, if such a licence is required. That is not to say that local authorities can do something about conditions, terms and attachments because they cannot. I am interested in the general point of asking.
If I was sitting on a planning authority in such circumstances one of the first questions I would ask would be whether the applicant intends to apply for a waste licence or whatever licence is necessary. We can presume that an IPPC licence will be required under one of these Acts. It would be a big step, a fundamental change in the way we conduct our business and a transfer of responsibility to allow local authorities to start to interpret the Waste Management Acts.
I am not sure that will solve the problem. The planning authority could ask the Environmental Protection Agency for its opinion. However, if it receives an opinion after the five week period within which observations on a planning application must be made, it may not take it into account.
The facility in question may never proceed because it may not receive a licence.
If a planning authority raises the issue as to whether a licence is required and does not get an answer either from the EPA or the applicant, can it refuse permission?
While I am not sure of the legal position, I do not believe it could on the basis that it has to complete a licensing procedure with an independent body, the EPA. If circumstances were to arise in which a company sought planning permission from a local authority without first clearing its lines in parallel in terms of its responsibilities, it would be a poor, costly and foolish way to do business. As this would not be in the interest of a company, I do not expect it to occur. I have answered the question as directly as I can.
I accept the Minister's position that the planning authority will not make the call as to whether a licence is required. However, it should be enabled to require the applicant to have the definitive view of the EPA as to whether a licence was required before making an application. The onus should be on the applicant rather than the planning authority.
I do not fundamentally disagree with the Deputy and expect that these circumstances arise regularly. If this is the case, I presume the various bodies have procedures for handling them. As I would like to establish this to the satisfaction of the Deputy, the committee and the general public, we will revisit the matter on Report Stage. I intend to find out what procedures are in place to deal with such an eventuality. I presume some areas will have excellent procedures, although I am not sure what they are. I accept the Deputy's fundamental point on the need to establish a procedure and have co-ordination between the various elements involved in the process in order to ensure there is a general understanding of what is happening.
I move amendment No. 106:
In page 42, line 50, after "licence" where it secondly occurs to insert "and subject to section 94 and the other provisions of this Part".
Section 93 as it currently stands re-enacts section 91(1) of the 1992 Act. However, section 94 gives the EPA a new power to control the transfer of licences. There are other provisions, such as those relating to revocation or suspension of a licence and limits on the duration of a licence, which otherwise qualify the effect of the licences. It is, therefore, necessary to make clear that the provisions in section 93, to the effect that a licence is for the benefit of an activity and of all persons for the time being interested in it, are subject to the overriding right of the EPA to control the transfer of licences and to other provisions of the Bill. The proposed amendment provides accordingly.
I move amendment No. 108:
In page 43, line 47, after "licensee" to insert "provided he has not committed an offence".
The intention of the amendment is to avoid circumstances in which a person who has committed an offence and is due to appear before the courts may decide to hand over his licence to avoid further proceedings or, having done so, denies in court that he is the licence holder, thereby avoiding prosecution. The insertion of the words "provided he has not committed an offence" would eliminate such a possibility.
I strongly sympathise with the motivation behind the proposal. Section 94 is a new provision which introduces controls on the surrender of an IPPC licence. The 1992 Act, as originally enacted, had no such provision. It is important that we have such controls and they are exercised before a licence is surrendered. While I can appreciate the thinking behind the proposed amendment, it would be wrong to include a provision which would effectively mean that someone who has already been in breach of his or her responsibilities to the environment must remain in control of the site in question in perpetuity.
It would be much better, as is done in the section, to give the agency power to carry out the necessary inspection, obtain the necessary information, carry out the necessary monitoring and make a full assessment of the conditions. If, at that stage, the agency is satisfied with the condition of the site, it will accept the surrender of the licence. I propose to charge the agency with this responsibility. One should not force a person who does not intend to take action to remedy matters or has not the necessary resources or means to do so to retain his or her licence.
I mentioned Irish Ispat Limited earlier, a company that appears to have seriously contaminated the land on which its steel mill was located and then walked away from its responsibilities.
As I stated, the Deputy is discussing a matter on which legal proceedings are ongoing. As I am involved in the case, I cannot respond.
I do not propose to ask the next obvious question but, as a matter of interest, who initiated the proceedings?
Amendments Nos. 111 and 112 are related and may be discussed together by agreement.
I move amendment No. 111:
In page 45, line 40, to delete "may" and substitute "shall".
I ask the committee to bear with me for a moment as I was not aware amendments Nos. 111 and 112 would be discussed together.
The amendment is identical to one we discussed earlier.
The Minister accepted a similar proposal earlier which will entail considerable and detailed bureaucratic work on the part of the authority. The amendment in question, which requires local authorities to examine the economic interest in a case, will affect a large number of farmers and, as such, impose an obligation on the authority to undertake a significant increase in bureaucratic work.
The proposal in amendment No. 111 relates to a broader issue, namely, the possibility of revoking a licence. While also a serious matter, it probably relates to large operations. It appears in this case that the balance is tilted towards economic interests as opposed to environmental interests. I accept the Minister's point that we have heard the relevant arguments already and I do not, therefore, propose to press the amendment. However, on reflection, the Minister's decision to allow the word "may" to be substituted by the word "shall" in a previous amendment imposes a more significant change on the agency than the proposal in amendment No. 111 as it will have to take into account detailed economic data in a large number of small cases.
That is the price we pay for seeking to ensure we have the best possible environment for the people. I agree with the Deputy in so far as we sometimes place an onerous responsibility on the agencies and bodies under my aegis in our efforts to strike a balance. Nevertheless, we are trying to work with them. One cannot set the bar so low or so high that it becomes meaningless. One is always trying to strike a balance. The object is to keep moving forward.
In respect of amendment No. 112, persistent non-compliance with licence conditions can lead to prosecutions which, in turn, may lead to the licensee no longer complying with the fit and proper person test, a major innovation in the Bill. The Deputy's intention is already covered.
Given that amendmentNo. 112 is similar to subsequent amendments, I am surprised they were not grouped. The amendment seeks to widen out, as does Deputy Gilmore's amendment, the reasons by which a revocation or suspension of licence might occur. The Minister's first amendment is a broad and sweeping one which includes any other such issues as whether they were not in compliance with the conditions of their licence or they did not——
It is broad and substantial and can cover, for instance, a case where the necessary financial wherewithal does not exist. We have seen that happen in the past in regard to many issues. It also includes technical capacity and the expertise to deliver on any facility. A person may have a criminal conviction——
I am commenting on my personal situation.
The specification in regard to one being a "fit and proper person" is a huge stride forward in terms of environmental legislation.
My comment is in respect of amendment No. 113 which has yet to be discussed. I consider the matter of where the obligation is placed as being paramount to the discussion. We spent a great deal of time today discussing whether additional obligations should be placed on the EPA, or on local authorities for that matter, to do a range of things from communication with somebody who sent in a letter and so on and so forth. In my view, the obligation should be put on the applicant or the operator. We should have a transparent system. The primary obligation for the provision of information and compliance should be placed on either the licence applicant or the holder of a licence. There should be a strict regime to deal with non-compliance and sanctions should be in place. The difficulty is that if we enact legislation which places obligations on the agency, it is questionable if the agency will have the resources and the capacity to meet with them and, therefore, the emphasis should be to provide the agency with the power to oblige the applicants and the operators to comply. For that reason, I suggest in a later amendment that if somebody has produced an inadequate notice for a licence application, for example, that should be a reason for the revocation of a licence. The onus is put on the applicant to provide the information to the public in the first place. The same should be true in regard to the concealment of important information or if it turns out that the technological wherewithal is not in place. There needs to be repercussions for companies in such cases.
When one applies for car insurance there is a clause which states that if one provides false information, a subsequent claim might not be paid. It is a cautionary phrase in the insurance application and the same should hold true in this regard. Instead of putting obligations on the agency and the public authority to carry the can if something goes wrong, we need to shift the emphasis on to the applicant or the operator and give the necessary power to the agency in that regard.
I have done a number of things which we discussed earlier to ensure the responsibility of the applicant. Much of the cost will be borne by the applicant, including the monitoring costs. Everything will not be going the one way. I agree with the Deputy that the legislation certainly tees it up that way. At the start of the process, the onus is put on the agency in terms of scrutiny and it is obliged to check all these things. If it is doing its job properly, problems should not arise at a later stage. The agency is obligated to make sure that the process is properly carried out. It is obliged to make sure that the correct notice is given in the newspapers. It must do this and, whatever about notices in newspapers and so on, it is quite clear from the Bill that if the body that has received a licence is not fulfilling its duty in some way, the EPA has the power to take extreme sanctions, if not completely shut down a company that is not in compliance. It is already possible to do that. It is a question of getting all these things in balance.
We have been talking about this since early this morning and I would not like it to be suggested that all the pressures and costs in this regard are on the agency. That is not the case. I have shifted the balance which was heavily resisted by the industry which wanted the State to carry all the costs. Some of the amendments which came from Deputy Allen, perhaps from an IBEC source, was an attempt to row back on some of this. I did not accept them and I do not see a valid argument in the case put forward. There is a strong onus on industry to play its part, and rightly so. Why should the taxpayer carry all these costs? There are always associated costs for people who want to do business.
Deputy Gilmore used an excellent analogy in terms of the insurance industry. To ensure a similar onus on the applicant in respect of the provision of false or misleading information, would the Minister have to amend the Bill or could he do it by regulation?
No, that is a key element of the Bill. It is extremely important that the EPA makes the assessment that the financial wherewithal is there.
In regard to whether a licence should be revoked or looked at, the focus of section 84(4) is mainly on whether the requisite technical knowledge and financial wherewithal is available for the activity.
That is important.
It is important, but it ignores a range of other problems that may occur. The Minister is right in saying that if the initial licensing requirements were carried out correctly, there would never be a problem down the line. The reality, however, is that things change. It would be difficult for the agency to prove that someone does not have the technical ability or the availability of finance, but there may be other activities that are of concern to the agency and I am somewhat worried that the use of section 84(4)——
There is a range of other enforcement powers as well these, but we are currently dealing with the specific one relating to financial and technical aspects.
The EPA is being given substantive and extraordinary powers to take away a person's livelihood. Redress to the courts is an option for those who might feel wrongly treated in this regard. One can only go so far and I think we have gone an extraordinary distance——
The point I am making is that section 84(4) might limit the agency rather than expand its possibilities of giving an opinion as to why the licence should be revoked. The primary focus of section 84(4) is in regard to technical expertise and financial ability.
It would also be the case if one had been prosecuted for offences. Clearly if one has a bad track record, there is no doubt that this will feature very much in the thinking of the EPA.
Does that mean that a prosecution is required before we can revoke a licence?
There is a range of issues. People or companies can present themselves, support their arguments with glossy brochures that look fantastic and lead one to believe that they can deliver the devil and all. I want the process to be much more substantive and I believe the EPA should examine people's financial wherewithal, whether their plans can really be delivered on and who they are. There are interesting examples from the recent past - I will not mention them because it would open up a new area of discussion - of people presenting themselves who turned out not to have the expertise on certain projects that they claimed. In the course of such projects one might discover that people are not who one thought they were at the beginning, that they are operating on behalf of somebody else and that their expertise is lacking financially, technically and in other ways.
I have a slight fear that the Minister's intentions under section 84(4) will lead to our having to rely primarily on a prosecution as the means by which a licence can be revoked.
It is a good and serious start and the first time that this has been done. To go any further at this stage would border on jeopardising what we have already achieved.