Protection of the Environment Bill 2003 [Seanad]: Committee Stage (Resumed).

SECTION 12.

Amendment No. 115 is an alternative to amendment No. 113 and they may be discussed together by agreement.

I move amendment No. 113:

In page 46, line 2, to delete "operation." and substitute the following:

"operation, and

(c) the public notice requirements were not properly complied with when the application for the licence was made.”.

I referred to this amendment at our last meeting. There was much discussion at the last meeting about placing obligations on the Environmental Protection Agency to notify people who wished to make observations on licence applications and so forth. The purpose of this amendment is to place the onus on the licence applicant and to give the agency the power, which it can exercise at its discretion, to revoke or suspend the operation of a licence in cases where the public notice requirements were not properly fulfilled when the application for the licence was made. This type of provision would concentrate the minds of applicants and ensure that the necessary notices are given.

This amendment is informed by the experience of members of the public as well as Members of the Oireachtas over a number of years regarding environmental criteria set down by the EPA and local authorities in general. It simply puts applicants on notice that there are requirements which must be complied with and cannot be glossed over and that there is a sanction available to deal with those who do not come up to standard. It gives the Minister the discretion to ensure that all requirements are met.

We had a debate earlier in which this issue arose. The EPA pays particular attention to this issue and occasionally visits sites to check notices. It sometimes requires applicants to put up new notices and to publish new notices in the newspaper. The question of compliance with public notice requirements is a matter that can be dealt with by the agency in the context of the licence application process. Clearly, it should be dealt with at the start of the process, not sometime later. That is how the EPA deals with it. It is not necessary to put this in the legislation. I do not propose to accept the amendment.

That has not always been the experience of people on the ground. They believe the EPA and the planning authorities have overlooked areas where notices were not properly displayed. The amendment was put down to deal with that. The Minister regards this as the dawn of a new age and expects improvements in the way things are done. We will live in hope.

We had a useful discussion on the last occasion. It reinforces what is now practice. The EPA does all this at the start of the process. There is an issue of public confidence that such matters are dealt with properly. The EPA regularly visits the sites to confirm that the notices are there. It requires applicants to put up new notices and to publish the notices again in the newspapers as well. This is a micro management issue and does not need to be included in the legislation. It is a matter that must be dealt with by the agency.

It can only deal with it when the application is being made. If it comes to the agency's attention after the application has been decided and the licence has been granted that the notice requirements were not complied with, the agency can do nothing about it.

The other point is that the EPA is obligated to deal with this at the start of the process. It must deal with these issues and satisfy itself with regard to them. This is a fixed and certain part of the process and the EPA knows this. It cannot take any of these issues for granted but must satisfy itself as to the veracity of compliance. There is no question about that. The Deputy is correct to speak about the situation after the horse has bolted but that is not the issue. This must be dealt with in the first instance.

It is placing an undue burden on the agency to require it to behave infallibly when the application is made and to leave no redress for situations where information subsequently comes to its attention. If somebody gets a licence based on false information or a false notice, it is not just the agency that is stuck with the licence but everybody else. It is unwise not to provide for the possibility that the agency could revisit a licence it had issued in circumstances where notices had not been correctly made. The Minister is prepared to take responsibility for that but I believe he should reconsider it between now and Report Stage. This will only become an issue when a case arises and people discover the notice was not accurate or was not provided. The agency can only respond that there is nothing it can do. It will be stuck with the licence.

There is a provision in page 40 under which it can be reviewed if new evidence becomes available. As with any application for anything, there are a range of issues that must be tackled. This fits into that process. The EPA is well aware of this issue. Rather than the Oireachtas legislating at every step for the rules and regulations of how these applications are processed, it should be part of the micro management of the EPA's business. This is an important issue and the EPA is well aware of it.

Amendment, by leave, withdrawn.

I move amendment No. 114:

In page 46, between lines 2 and 3, to insert the following:

"(c) the criteria set out in section 83(5) are not being met or no longer apply.”.

This allows the agency to set out in advance, so that applicants are aware, that the criteria in section 83(5) are in question when it comes to the agency's assessment. Section 83(5) is lengthy but it means that applicants must be mindful of the various requirements upon them.

Failure to continue to meet the criteria set out in section 83(5) will inevitably lead to breaches of licence conditions. In turn, this may lead to prosecutions through which the licensee may fail to satisfy the fit and proper person test. In these circumstances, I do not propose to accept this amendment. It is more than adequately dealt with in the legislation.

The Minister is trusting with regard to the operation of the EPA and I have no reason to doubt him. However, it is important to give the EPA as much assistance as possible in making its case. By referring to the legislation, the agency can make it clear to the applicant that this is not a matter of interpretation or discretion. This amendment is put forward as an aid to the EPA.

It is black and white, as far as I am concerned, if somebody is convicted of an offence. We have significantly strengthened this legislation. These provisions do not exist in any of the previous Acts, particularly the fit and proper person test, which is onerous. It is a black and white situation in terms of conviction of an offence.

I will withdraw the amendment with a view to having the matter reconsidered for Report Stage.

Amendment, by leave, withdrawn.

I move amendment No. 115:

In page 46, between lines 2 and 3, to insert the following:

"(c) the public notice requirements were not properly complied with when the application for the licence was made.”.

I will withdraw the amendment with a view to having the matter reconsidered for Report Stage.

Amendment, by leave, withdrawn.

I move amendment No. 116:

In page 46, between lines 29 and 30, to insert the following:

"(6) The Minister may by regulations make such incidental, consequential or supplementary provision as may appear to him to be necessary to give full effect to any of the provisions of this section.".

Section 97 of the 1992 Act relates to the revocation or suspension of licences. The drafting of the new section 97 would benefit from the Minister having powers to make regulations making incidental, consequential or supplementary provision, as is necessary, to give full effect to the section. Such provisions could, for example, include a requirement for written notice of revocation or suspension to be given. This kind of provision was not included in the section as passed by the Seanad and it should now be accommodated. It goes some way to meeting the concerns expressed by Deputies.

Amendment agreed to.

Amendment Nos. 117 and 120 are related and may be considered together by agreement.

I move amendment No. 117:

In page 48, line 34, to delete "with the consent of" and substitute "in consultation with".

In the legislation the Minister proposes that he may, in accordance with regulations, seek the consent of the Minister for Finance and the Minister for Enterprise, Trade and Employment. Does he agree that providing the Minister may act "in consultation with", rather than "with the consent of", puts him on a par with the Minister for Finance and the Minister for Enterprise, Trade and Employment?

I appreciate the intention of the amendments, which seek to enhance the position of the Minister for the Environment, Heritage and Local Governmentvis-à-vis other Ministers with regard to the making of charges or fees as proposed. However, I cannot accept them. The proposed wording, which relies on consultation, would remove the rights of other Ministers in key decisions. The Deputy is aware that in a number of areas, such as industry, I would need the agreement of my ministerial colleagues on questions such as charges.

I will withdraw the amendment.

Amendment, by leave, withdrawn.

I move amendment No. 118:

In page 49, between lines 28 and 29, to insert the following:

"(e) an objection made to the Agency under section 87(5),”.

The Environmental Protection Agency Act 1992 and the associated licensing fees regulations, which were last made in 1996, provided for the making of objections to proposed EPA determinations on the payment of a fee, amounting to €253 in the case of applicants or licensees and €126 in all other cases. These fees have been in operation at this level since 1994. The treatment of fees for particular matters was rather general in the 1992 Act and did not, in the relevant section of the Act, specifically list all the matters in respect of which a fee may be charged. However, in accordance with current practice, the drafting of section 99A of the new Part IV of the 1992 Act, referred to in page 15 of the Bill, which corresponds to the old section 94, now contains a detailed listing of items in respect of which fees may be charged. It does not, as drafted, include a fee for an objection in respect of a proposed determination under the proposed new section 87(5), referred to in page 34 of the Bill, even though such a charge has been in operation for almost a decade.

Amendment agreed to.

I move amendment No. 119:

In page 50, to delete lines 1 to 3.

This amendment will be of interest to those following the debate on genetically modified organisms. The Bill refers to the Minister making regulations providing for the payment to the agency, or such other bodies as may be specified, of fees with regard to the operation of a system of control over genetically modified organisms under section 111 of the 1992 Act. This will pre-empt Government decisions in this area as the country does not deal in genetically modified organisms. The provision may anticipate a policy that has yet to be announced, on which the Green Party will have much to say.

To delete the proposed lines would remove the current ability of the EPA to charge fees regarding applications in respect of proposals for the contained use of GMOs or deliberate release of such organisms into the environment. This would be inconsistent with the fact that the agency may charge fees for its other licensing operations. I do not propose to accept the amendment. While the Green Party does not intend it, it might be construed that the party is a supporter of GMO technology, which is not the case. The provisions in the Bill are consistent with the European Union directive and are a recognition of current practice. There is a long way to go on the GMO debate. The Deputy will be aware of my position and that of the country, irrespective of the views expressed in another jurisdiction. It is consistent with the view of the country on a range of issues, but it differs from the views held at European level.

I am sure the Minister does not need me to reiterate the Green Party's views on GMOs. An official in President Bush's Administration may construe these provisions as a preparation for accepting GMOs, rather like the role of John the Baptist.

What was the position of John the Baptist on GMOs?

He probably did not have much time to think about the issue before his beheading.

The Bush Administration is closely following the proceedings of the committee.

If the amendment is not accepted it will send a signal that the EPA is ready and waiting for the GMO era to begin.

The irony is that if these lines were deleted, it would be immediately construed that Ireland is the only country that will not charge for GMOs, if and when it happens. The provisions are in line with the EU directive. It would be ludicrous to signal that Ireland would not impose any charges should it be introduced. The provisions are strongly drafted and it is better for us to be in this position and to comply with EU legislation rather than being left open to the opposite charge.

The Minister can vote down the amendment, so I will not press it.

I understand the Deputy's point. I am not trying to be unfair to him.

The provisions should be modified to indicate that this is hypothetical and that it is not, therefore, a welcoming of GMOs.

It is not hypothetical in the context of the laboratory use of GMOs.

Our concern is with the political aspect. I do not have a difficulty in terms of health applications. Nevertheless, the Government should send a clear message on this issue.

It is clear.

Amendment, by leave, withdrawn.
Amendment No. 120 not moved.

Amendments Nos. 121 and 122 are related and both may be considered together by agreement.

I move amendment No. 121:

In page 51, line 38, to delete "may" and substitute "shall".

The amendment is concerned with the release of information. I want to check whether the Minister has thought through the fact that, under freedom of information legislation, this information may be required to be released. If it is stated in legislation that the Minister may release it, then why not state, "The Minister shall", so that it is clearly available.

I understand what the Deputy is driving at but he may misunderstand it. It is not only customary but a sensible practice to provide for discretion to make regulations rather than making regulations mandatory. Obviously I do not intend to depart from established practice, but I must point out that any regulations I make must be laid before the Houses of the Oireachtas. I cannot go off making regulations and I must come back to both Houses with the regulations.

The way at present is that I may from time to time make regulations but making regulations is not mandatory. If I do make regulations, however, they must be laid before the Houses of the Oireachtas. This is not done due to freedom of information legislation. The Deputy has a direct role, as a Member of the Dáil, in dealing with this when it would happen.

I accept the Minister's explanation.

Amendment, by leave, withdrawn.
Amendment No. 122 not moved.

I move amendment No. 123:

In page 53, line 41, after "by" to insert "way of reserved function of".

This subsection from the 1992 Act enables a sanitary authority to recover costs necessarily incurred in providing water services to individual companies. Being IPPC licensable activities, they are inevitably activities of significance which often result in substantial costs being incurred by the sanitary authority, both as regards capital investment and ongoing operational costs.

The costs arising are particular to each activity and it is not the case that this provision involves setting a standard charge in a manner akin to agreeing the commercial rate. Rather each activity is judged by its own merits having regard, for example, to the nature of the treatment processes involved in managing the waste water. It would not be practicable to make each individual arrangement with each activity the subject of decision by the elected councils.

In practice, the arrangements now being put in place to give effect to the general Government policy on water pricing involve sanitary authorities negotiating individual agreements with significant users. Typically they would be IPPC licensable activities under which the sanitary authority provides an agreed level of treatment capacity in return for the payment by the company of the marginal capital and average operational costs associated with this capacity. This again reinforces the need to implement this provision and this policy framework on an executive basis. Accordingly I am not in a position to accept the amendment.

We are returning here to the argument about the reserve function versus the executive function. Is it not possible at Estimates time that it would be reserved to the members to lay out guidelines of what the charges might be, rather than having an executive function? It is further denuding members of their responsibilities and duties as elected members. Could it not be overcome by having it as a reserve function that the guidelines on those charges would be fixed at Estimates time?

I support this amendment. We have heard several statements from the Minister and his predecessor about the issue of giving power to local government. If power is given to local government, what are local members given the power to do? Is it to twiddle their thumbs, to sit looking up at a manager who will implement all the levies and so forth?

This is a creative and realistic amendment. It is a reasonable amendment. If the Minister gives a hoot about local government, then this is one of the amendments he will accept to give the men and women councillors and representatives around the State an opportunity to set these levies. Not withstanding the Minister's stock reply, it is about providing for fair play for members.

Perhaps I am wrong but I think there is a misunderstanding between us on this one. This has been the position for years. As a former member of a council, I could not see a councillor sitting at any meeting of a council in any capacity being in a position to go into all the technical details on an individual company and how it should or should not be charged for its water, and making it a reserve function. I would not have the capacity to do so.

It is like what happens in my work when there are certain letters I must issue. I do not have the capacity myself. I must take legal advice and the letters would be largely put together on a legal basis, and that is how it is done.

This is the position as it stands. The council members would never be in a position, on individual contracts with individual companies, to set a standard across the system. It has never operated that way.

It is a bit different.

No, it is not different. We were led to believe the Minister when he told us. I did anyway, but I suppose I was a bit of an eejit at the time. It was the local government centenary year and we were told by his predecessor, and by the Minister when he came into office, that they were going to increase the power of local authority and to give members more authority.

If the officials are going to lay out their charges on a sheet anyhow, as I assume will be the case, why not put it before the members? They have to. How will they assess the costs? I assume they will have to do that. When they lay out their costs, why not distribute them to the members and why not let the members keep an eye on the officials so they are not running riot and supplementing all these other charges for the lack of funding coming from central government?

I can think of one instance straight off. I would have no doubt in my mind that there could be potentially very sensitive commercial information available around some of these issues as to the systems that some companies are using. These are negotiated, as I understand it, with individual companies and part of that is forcing them to use best practice. One could not have a blanket system. It has never been the way the amendment suggests, that the members themselves would be involved, and I do not know any members who would want to do this. I do not know any member who would have the competence.

I served as a councillor - I am not talking with tongue in cheek - and I would never have dealt with an issue like this, nor would I have the competence to get into each individual company's arrangements and to go through that in great detail.

There must be a level of trust in the system. It is like my position with my own officials. I cannot do all of their jobs for them. I must trust in, and rely on, the advice and the evidence and trust that the assistance I am getting is good, and then I must make my mind up about it. However, the minutiae and the micro end of it is something for which I do not have the time nor, perhaps in some respects, all the competencies necessary. When I get an overall position, obviously I must deal with that.

This is not a change at local level and I want to make that clear to the Deputies. This is the current position.

I appreciate that it is not a change. There have been enough changes in the direction of taking away the reserve function of members. There have been enough changes proposed in this Bill, like the amendment or alteration of adopted waste management plans. That is a direct change - the power has been taken away from members. The right to fix services charges has also been changed and that is another change involving taking power away from members.

Deputy Allen, who tabled this amendment, is a long-serving member of a local authority. He must not have foreseen any difficulty in providing that this matter be a reserve function. I must accept what the Minister stated. Notwithstanding the fact that it was never the case previously, there was no harm in asking for it to be the case in future. As members are so relieved of their other duties, they might have more time to fulfil this type of duty. I reluctantly withdraw the amendment.

Amendment, by leave, withdrawn.
Amendment No. 124 not moved.

I move amendment No. 125:

In page 54, line 34, to delete "may" and substitute "shall".

This is the same argument we had previously about trying to make the Bill firmer by substituting "shall" for "may". I understand the argument various Ministers make continuously about the difference between "may" and "shall", but certainly "shall" ensures it will happen while "may" leaves it open so that it may not happen. The purpose of tabling this amendment is to ensure it happens.

Section 90 of the new Part 4 as inserted by section 12 deals comprehensively with the circumstances from Article 13 of the directive in which it is mandatory that a licence should be reviewed. These circumstances in section 90(4)(a) as inserted by section 12 are as follows: if emissions from the activity are deemed to be of such significance that existing emission limit values, parameters or technical measures need to be reviewed; if substantial changes in best available techniques make it possible to reduce emissions significantly without imposing excessive costs; if the operational safety of the activity requires techniques other than those in use; and if a review is required due to any Act adopted by an institution of the European Communities, any agreement entered into by the State or any enactment passed since the licence was granted or reviewed.

Section 90 as inserted by section 12 also restates generally the discretionary power of the agency contained in the 1992 Act to review a licence where there is a proposal for a substantial change to the emissions. The point is that the Environmental Protection Agency needs to retain discretion. It is a function of the EPA and not of a local authority in this regard. The EPA has sole discretion.

The Bill states that the agency shall consider but may comply. It might be better if the words were reversed.

The reason is that it will be a matter for the agency. It will consider representations from a local authority and it will then be a matter for the agency to decide how to act. There cannot be a cross-over in responsibility. There must be clear lines of designation so that industry and everyone involved knows with whom to deal. The EPA is responsible for this area, not local authorities. We do not want to deal with two bodies. We are dealing with one and that is it.

All the amendment requires is that, where "further information has become available since the date on which the licence or revised licence was granted relating to polluting matter present in the discharge concerned or relating to the effects of such matter", the agency would have regard to any submissions. That is a reasonable request.

The Bill states that the agency shall consider and may comply. The Deputy wants to change that to shall consider and shall comply. That cannot be done. The EPA must have independence. The lines of demarcation cannot be crossed. The Deputy is trying to give a superior role to local authorities.

Amendment, by leave, withdrawn.

Amendment No. 127 is an alternative to amendment No. 126 and both may be discussed together by agreement.

I move amendment No. 126:

In page 54, to delete lines 37 to 50 and in page 55, to delete lines 1 to 3.

I will be brief. The lines proposed to be deleted are not essential to the good working of the Bill. I am interested to know the Minister's view.

I do not agree. We discussed this previously. To accept amendment No. 126 would introduce legal uncertainty and generate confusion as to how the interface that exists between the planning code and the IPPC code should operate. The existing arrangements as inserted in the Environmental Protection Agency Act 1992 by section 256 of the Planning and Development Act 2000 achieve clarity on this issue, with planners dealing with proper planning and sustainable development and the agency taking responsibility for the highly technical areas of emissions control which fall under the IPPC licence code.

This subsection simply restates the law as enacted in 2000, and attempting to unpick it in this way would be extremely unwise. Legal clarity and certainty already exist in this regard. I therefore do not intend to accept the amendment. This was discussed previously. The Deputy's colleague was present for it. Certainty and responsibility are required and we have those.

Amendment, by leave, withdrawn.

I move amendment No. 127:

In page 54, line 40, after "granted" to insert "or has been applied for".

The Minister did not reply to this amendment.

I dealt with the two amendments together.

Amendment, by leave, withdrawn.

I move amendment No. 128:

In page 57, lines 53 and 54, to delete "to the High Court or the Circuit Court, that" and substitute ", who can demonstrate to the satisfaction of the court their material interest in the operations and environmental impacts of the activity, to the High Court that the".

The intention is to try to strengthen the section. It is a reasonable amendment.

This is interesting. The suggestion to limit access to the courts to persons who can prove a material interest in the operations and environmental impact of an activity is one with which I obviously do not agree. Section 57 of the Waste Management Act 1996 contains a provision similar to what is proposed in the Bill. No apparent problems have emerged with the Waste Management Act provision, and it is desirable that consistency be maintained between the two codes.

A telling remark was made by Senator Bannon on Report Stage of the Bill in the Seanad when I proposed widening the original provision in the Bill to provide access not only to the higher courts but to the Circuit Court as well. The Senator said: "It is important that members of the general public, organisations and other bodies are given access to the courts and that this provision is included in the legislation." I accepted that and widened the provision. Deputy McCormack proposes to narrow it substantially and I do not accept that. The provision is substantive. The Deputy's colleague was responsible for widening it.

I accept the Minister's clarification.

Amendment, by leave, withdrawn.

I move amendment No. 129:

In page 58, line 7, to delete "appropriate." and substitute the following:

"appropriate,

(c) the High Court may order the seizure of assets of the person responsible for the activity in order to recover money made, or saved, as a result of breaches of the conditions of a licence, or operating without a licence.”.

Adding subsection (c) to section 99H(1)(a) and (b) as inserted by section 12 is to make clear the necessary message that the High Court is not just about including provision for payment of costs as the court considers appropriate, which historically has been seen as an affordable amount for a polluter to pay. Even though it may be annoying to them, it is still not enough to dissuade some companies and applicants from taking a risk and proceeding with illegal activity on the basis that they reckon it is worthwhile and a calculated cost in their operation if they get caught. The High Court should be clearly enabled to seize assets of those responsible for an activity to recover money made or saved as a result of breaches of the conditions of a licence or operating without a licence.

This is repeatedly the cause of huge frustration for people concerned about the environment. If toxic material is discharged into a watercourse or groundwater if illegal dumping takes place, the costs imposed by the High Court do not deal with the matter because it is still unresolved and the taxpayer ends up having to cope or pay - usually cope, because the problem persists. The High Court needs to be able to take action in this regard. Although it may be rarely used and, it is to be hoped, may never be used, it is reasonable to provide for it.

An amendment was agreed previously to make remediation part of the process. My colleague was present when that was being discussed. The imposition of penalties of the nature proposed would be more appropriately dealt with on foot of a formal prosecution. Section 99H(3) as inserted by section 12 makes clear that taking proceedings under this section will not prejudice the initiation of a prosecution relating to the offence attracting penalties on indictment of up to €15 million. It is well covered.

Account is taken in the section of other matters as well. Section 99H(1)(b) as inserted by section 12 states “make such other provision, including provision in relation to the payment of costs, as the Court considers appropriate”. It covers all matters. Remediation was specifically introduced by an amendment.

Remediation is part of the problem but is not the whole problem. If a large enterprise feels it is worthwhile to withstand the costs, a cynical calculation may well be made that it is worthwhile to do so. That is the point made in this amendment. There needs to be provision for the seizure of assets.

There is. There is a whole body of law dealing with the matter. The courts deal with it every day of the week. The other provisions——

We can send a message from this committee today that the seizure of assets is already provided for in legislation, and that that is the reason the Minister is not accepting the amendment.

The answer is yes. There are formal prosecutions for various reasons when these issues come into play. The courts have the power to deal with them better without us pinning them down. The legislation in place deals with the matter more than adequately. We brought forward an amendment in order that there would be no ambiguity relating to remediation.

I accept the Minister's point in that the message has been clearly sent that seizure of assets is provided for in other legislation but the history of such cases shows that the provisions for seizure are not invoked and that sometimes fines are so derisory that it amounts to a calculated risk on the part of operators.

We have provided for fines of up to €15 million, which is serious.

They have never been invoked.

As the Deputy knows, the courts are taking a much stronger view. I hope they will engage seriously on the issues of waste and litter, as there are measures in place but which have not been implemented. I have encouraged the courts to do so as these are serious issues.

We have gone as far as we can with this amendment.

Amendment, by leave, withdrawn.

Amendment No. 130 has been ruled out of order.

It involves a potential charge on the Exchequer.

Which only the Government can provide for. Perhaps it will introduce this amendment on Report Stage.

Perhaps.

Amendments Nos. 130 to 132, inclusive, not moved.
Section 12, as amended, agreed to.
Section 13 agreed to.
NEW SECTION.

As amendment No. 134 is an alternative to amendment No. 133, they may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 133:

In page 60, before section 14, but in Chapter 4, to insert the following new section:

14.-Section 111 of the Act of 1992 is amended-

(a) by substituting the following subsection for subsection (1):

'(1) The Minister, after consultation with the Minister for Enterprise, Trade and Employment and any other Minister of the Government who in the opinion of the Minister is concerned, may-

(a) for the purposes of——

(i) environmental protection,

(ii) the prevention of danger to health or damage to property, or

(iii) the preservation of amenities,

and

(b) without prejudice to the generality of the foregoing, for the purposes of giving full effect to any act adopted by an institution of the European Communities that relates to any of the matters mentioned in this section,

make regulations for the control, management, regulation or prohibition of any process or action or class of processes or actions, involving a genetically modified organism.',

and

(b) by deleting subsection (4).”.

This amendment amends the Bill by adding paragraph (b), which deletes section 111(4) of the 1992 Act. Paragraph (a) was included in the Bill as originally published and provides for wider regulatory power regarding genetically modified organisms. It is proposed to delete a subsection in section 111 of the 1992 Act which relates to the control of genetically modified organisms, GMOs, and which, in the light of developments, is now redundant. The original section 111(4) requires the person in charge of a relevant process to use BATNEEC to prevent adverse effects on health or the environment.

The amendment is proposed for two reasons. First, with the new Bill the concept of BATNEEC has been replaced by BAT, or best available techniques. Second, the regulation of GMOs, as it has evolved since the 1992 Act at EU and consequently national level, involves specific measures included in dedicated directives and regulations such as the 1998 contained use directive, the 2001 deliberative release directive and the impending labelling and traceability directive rather than regulation through the IPPC and its associated BAT regimes. These measures are generally very demanding and have been or will be implemented through specific separate regulations under section 111 of the 1992 Act which, in effect, is redundant. I am, therefore, tidying it up. The other amendment also relates to section 111(4) of the 1992 Act, which it is proposed to delete in the interests of legal clarity, as it is now redundant.

Amendment No. 134 was also proposed in the Seanad, where it was pointed out that it was difficult to see a GMO posing a specific threat to pavements or streets - the issue involved. The section is robust enough to cover eventualities that may emerge and it is not necessary or relevant to elaborate in this way on the purpose for which GMO regulations may be made.

I have reservations about this amendment and, unless the Minister can convince me to the contrary, I am inclined to oppose it. It gives the Minister the power, by regulation, to provide for what is called the controlled management, regulation and so on of GMOs. It is being introduced ostensibly for the purpose of making regulations which will provide for environmental protection and the prevention of danger to health or damage to property and the preservation of amenities. However, paragraph (b) tells us that without prejudice to everything stated about health and the environment, the amendment is introduced for the purpose of giving full effect to any Act adopted by an institution of the European Communities relating to any of the issues mentioned in the section.

If the European Union decides on a particular regime regarding GMOs, that regime may be put in place by regulation by the Minister. As we know, there is considerable debate between the European Union and the United States, in particular, on the future of GMOs. Broadly, most of us would sign up to the EU approach to the matter. However, down the line we may find the European Union taking an approach that would not find favour in this country generally or the House. What the Minister is proposing is that that regime can be given effect by regulation.

This proposal is being dressed up and while I am sure the Minister is committed to environmental protection and the protection of health and so on, the net point is that whatever the European Union concludes on GMOs and the development of GM crops, that regime will not be brought forward in the House in primary legislation but will be put in place by the Minister by regulation. We should not agree that this issue can be dealt with by way of ministerial regulation. If there is a new EU position on GM crops, it should be the subject of primary legislation.

This is included in the 1992 Act and we have been doing it for ten years by regulation. I am bringing this forward because the system has changed. While there is IPPC licensing, there is now a separate regulatory regime for GMOs on the basis of the directives I mentioned. We do this all the time and it is based on the 1992 Act. There is Oireachtas scrutiny of European legislation - something for which I asked ten years ago.

The Deputy is right in stating we have been doing this all along. I am now doing it properly by putting it where it belongs. The new directives mean the matter is now being dealt with by way of a new system of licensing. IPPC licensing does not come under this. I am being consistent in relation to what we have been doing for ten years.

Why is it necessary?

The Minister stated the position and understanding in relation to GMOs had changed considerably since 1992. I doubt if the issue featured very large at the time the 1992 legislation was being put in place. Even in the United States technology and the development of GM crops were at an early stage at the time. There has been a sea change in relation to GM crop production since the early 1990s and a wider understanding among the public. I am sure the Minister will recall that when the issue was being debated publicly, the debate centred on whether approval should be given by his Department, and regulations drawn up, or whether there should be a moratorium on further GM crop production.

The opportunity has now presented itself in the amendment to revisit the issue. The Minister is proposing to the committee that we continue the regime whereby the issue can be dealt with by way of regulation. The counter argument is that GM crops and foods are under consideration by the European Union. Our existing legislative framework which the Minister is seeking to reconfirm by way of the amendment means that in future, whatever is decided by the European Union, the Minister can deal with the matter by way of regulation. I am challenging this.

I am saying that, given the level of understanding in this country of GM crops and the level of concern among the public, both about the environmental and longer-term agricultural implications and so on of GM crop production, the future of such production in this country should not be decided by ministerial regulation but should become the subject of primary legislation. If there is a new set of directives from the European Union relating to GM crop production, they should be framed in primary legislation, brought before the House and debated in full public view. It is not appropriate for the issue to be decided by way of regulation because the principle of whether this country goes down the road of GM crop production has not been decided publicly. In so far as there is a policy on the matter, it is opposed to this. In so far as I understand Government policy, unless it has been communicated in a way I have not understood, it is at the very least cautious in relation to the issue.

The only reason one would deal with the matter by way of regulation is that the principles have already been decided. They have not been decided and were not decided in 1992 when the original protection of the environment legislation was being enacted. I am saying to the Minister that this provision for dealing with GM crop production by way of regulations should be omitted from the Bill. If the situation changes, a new set of EU directives, controls and regulatory framework will be put in place. Therefore, the issue should be brought forward in the House by way of primary legislation in order that the principles can be decided by the Legislature before giving the Minister the power to make regulations on the detail.

The amendment also rings alarm bells for me. The Minister referred to the old rules as no longer being relevant. I would like to hear what he means by this.

I did not say they were no longer relevant under this Bill but that the issue was dealt with in separate legislation. This requirement has been in place since 1992. I am now removing it and placing it where it should be included.

I heard the Minister say that afterwards. I am referring to his original explanation about the reason he wants to go ahead with the amendment. He referred to an updating of the situation. I thought he used the words "no longer relevant" but perhaps he said something different. I want an explanation as to the reason we need this amendment.

The Minister also referred to something which may not be vitally important in itself but which indicates a mindset, that is, we do not have to worry about GMOs in relation to streets and paths. Fair enough, we will not be growing food on streets and paths. However, recent reports in the New Scientist have cited that what are called super weeds tend to be a knock-on effect of applying particular agri-chemicals which build up a resistance and are then germinated. Gaps in streets and paths could well be a breeding ground in this regard. While I do not wish to dwell on the issue now, we should not be prescriptive about where the problems may need to be tackled.

I hope the amendment is not being brought forward from a position which accepts that, even with the best available technology, co-existence is possible in a problem free environment for GM and non-GM crops. Senator Cregan will be aware of the organic centre in Dromcollogher which has clearly stated co-existence is not a feasible option for GM and organically grown foods. Certification for organically grown foods is lost if there is GM contamination, even without touching the issue of liability which an organic farmer has to pay a GM company if crops are self-seeded on organic land. This is a perverse interpretation but it is what is happening in legal terms.

This should herald a proper decisive debate on the issue. If the Minister has not read the seeds of doubt report from the Soil Association, he should at least take a look at it. It clearly states the spin by the GM lobby which President Bush reiterated this morning about lower levels of pesticide use, higher yields and great markets has not been shown to be true from the GM farmers' point of view. They are finding they need higher levels of pesticide, have lower yields and are losing markets. Canada lost a market worth €300 million with the European Union for rape seed it grew using GMO seeds which the European market will not take. That is the pressure we will face as a country and a member of the European Union because of vested interests trying to push this issue for no reason other than to make profits and control the food market.

I hope the amendment is wide awake to the real pressures being exerted on this country. We should not be bounced into thinking we can have the best of both worlds because GM and organic crops cannot co-exist. I travelled at my own expense to a conference in Brussels organised by the European Commission on the issue. The bio-technology industry told us that we should modernise and become GM farmers, while farmers were saying, "Thanks very much but we can see a much better future for ourselves without GM crops." The evidence does not point to any panacea in the GM lobby. This must be taken into account. I am afraid that by simply providing for regulations we think co-existence is possible. From the evidence available, this is not the case.

The Minister stated the amendment represented the current position. Why is it necessary to allow decisions to be made in future by way of ministerial regulations? We do not know what developments will take place in the next two, three or four years as regards genetically modified products and research in that area. It would be much safer for our successors in the Oireachtas if legislation was required. Will the Minister explain the necessity of the amendment, for which I suspect there is an ulterior motive? If the amendment represents current practice, there should be no need for it.

On Thursday the Minister of State at the Department of the Environment, Heritage and Local Government, Deputy Gallagher, would not hear of including in the Bill an amendment which referred to genetically modified organisms being released into the environment. Since this is a protection of the environment Bill, which is also, admittedly, a Trojan horse for other issues unrelated to the environment and essentially related to local taxation to which we will come later, why did the Minister not take the opportunity to address comprehensively the issues raised by Opposition Deputies in regard to the question of the environment and the genetic manipulation of life?

We have recently experienced the traumatic invasion of Iraq by the United States military. Just as clinically and ruthlessly, the United States Government is planning another invasion, namely, the invasion of Europe and the world by the biotechnology developed by its multinationals, particularly in the area of seeds and crops. This is a sinister and dangerous development for the future of crucial forms of life on earth. In the space of ten years, the United States has interfered with the very source of life. On the basis of ten or 15 years research it presumes to release into our ecosystems, the wild, virtually new mutants of rice, corn and so forth which will have unforeseen consequences years down the line, for example, in terms of how they will react in the Third World where the United States wants to colonise the rice market. Biotechnology firms are buying up seed companies throughout the world. The very food security of the people is at stake because we do not know how these mutants will perform under severe climatic conditions and so on. Ten or 15 years research in a laboratory is not sufficient preparation for taking such a risk.

The Minister has introduced a lengthy protection of the environment Bill. Since he is making this provision, by virtue of his amendment, why does he not go further and take into account new circumstances or knowledge which may develop and the clear feelings of the population of Ireland and the European Union generally on genetically modified organisms?

Opposition to GMOs is considerable in Ireland, Britain and other European countries. Yesterday an armed force arrived at the home of Jose Bove in France to take him to prison because, as a representative of small farmers, he pulled up some genetically modified crops which were on trial. He has significant support among the farming community and ordinary people in France. This is, therefore, an important issue. Rather than producing this proposal, the reason for which is unclear to Deputies, why does the Minister not take advantage of this Bill and introduce a comprehensive update of the position and provide for legislation and Dáil supervision of this controversial area?

Will the Minister indicate his stance on genetically modified products? Will he give an undertaking that they will not be introduced to this State without the public debate such a decision would warrant given the critical change it would effect on the Irish food production cycle? If this is not the intention of the amendment, what is it about? Why is it dressed up in rosy language, almost like a First Communion suit? Is it to try to dupe? Why is it needed? I agree with previous speakers that it is unnecessary and look forward to hearing the reason for it.

I return to a question asked on the first day of Committee Stage when the Minister was not available. We were told by the Minister of State at the Department of the Environment, Heritage and Local Government, Deputy Gallagher, that the Bill, if adopted, would be signed into law later this year. Is it also the Minister's position that the Bill, if passed, will be signed into law in September or October? If not, when will it be signed into law?

The signing of the Bill into law is a function of the President.

When will the legislation enter into force? I would settle for an answer to that question.

I appreciate Deputies' comments. Genetically modified organisms are a serious issue which demand a serious debate. I would welcome a debate on the matter as I have strong views on it, akin to those already expressed. I could leave the section as it is, which would make it irrelevant as we have moved on from the position of previous legislation. In case anybody has forgotten, we were well ahead of other European countries in addressing the issue in 1992. The Environmental Protection Agency Act contains four pages which deal exclusively with it. We were to the fore then and are equally so now.

There is a choice. I am trying to strengthen substantially my hand in paragraph (a). If I do nothing, I will have no powers and the GMO companies could do what they like, which nobody wants. I have to have some control and must ensure I have strong powers. If Deputies want me to allow companies to do as they like, that is fine. The amendment introduces a substantial increase in powers. In paragraph (b) I am proposing nothing more than to delete BATNEEC, an outdated concept, and replace it with BAT. The reason the GMO debate is not taking place in the context of this Bill is that IPPC licensing, the subject of the legislation, is unrelated to GMOs.

Deputy Gilmore made a number of important points. The issue of products will be addressed at European level, not by individual Governments.

Subsequent to Government approval.

No, it will be dealt with at European level and Ireland will participate in the deliberations on it. The question of products is a European issue and if decisions are taken at that level, we will have strong regulatory positions to manage the process. That is what I am attempting to do. I have no doubt we will need a serious public debate on the issue. My sense of the position at European level is that there are mixed views on it and an absence of consensus. When and how a consensus on the issue will emerge is questionable and I have no sense of what may happen. The Irish position, as laid out, is positive but precautionary. It lies heavily on the precautionary side which is where I stand on the issue. Those who have spoken would be happy with the views I expressed at meetings.

We cannot resolve the product issue in legislation. It will be decided at European level. I must ensure I can regulate immediately if such a decision is ever taken. I presume Deputies know that it will be by QMV. I want to make this legislation as up to date as possible in terms of the regulation and powers it gives, through recognising what has happened under the other directives and the change from BATNEEC to BAT. That is all I am doing. I am taking the opportunity to strengthen our hand as much as I can. However, my sentiments lie with the Deputies who spoke on the issue, on which there are many different views and on which there is no consensus in Europe or in Ireland. I wish there was.

It would strengthen the Minister's hand if, instead of having to regulate with the EU directives, he immediately had to introduce legislation. That is what Deputies——

I could not introduce it. Legislation for products will be decided at European level. That is where the real issue will be dealt with.

There has to be a debate at this level about it.

I agree, and there will be.

We might have every confidence in the Minister in regulating bushels of corn the way the debate is now going but we are legislating for future Ministers. That is the danger in having regulations rather than legislation.

It would cause serious damage to the economy if we had to wait for legislation on everything. We would have to wait while the damage was being done. If such a decision is taken at European level, the Minister, whoever it might be, must be in a position to act immediately by regulations. There is no question about this. That is how we have been doing it up to now.

It is not satisfactory that the regulatory framework for genetically modified foods is the subject of secondary legislation made by regulations by the Minister. The area is appropriate to primary legislation and the kind of——

There will be primary legislation from Ministers. I am dealing with one specific aspect and would not like it to be thought - I do not think the Deputy sees it this way - that it might not deal with foodstuffs and right across the whole area. That is another issue.

Crop regulation up to now has been a matter for the Minister for the Environment, Heritage and Local Government. I know there is access to Government and approaches are made. The Minister is right, there are different views on this issue. Biotechnology is developing and there is no doubt it has a lot of potential but a cautionary approach must be taken to it. It is all very well to say this was anticipated in the 1992 legislation - hurrah for those who anticipated how the GM situation would develop - but that does not justify the current position where essentially we have inherited a regulatory framework which can be exercised by ministerial regulation.

Let me ask a short question. We already have a number of directives in this area which I implement by regulations. Is the Deputy seriously suggesting that for every directive - a rake of them are coming on stream this year - I should have to bring forward primary legislation? He knows what would happen as well as I do. It would take ages to get the legislation drafted.

No, I am not saying that. Because of the huge implications in terms of the environment, the future of agriculture and food production on this island, the whole area——

The future of the biotechnology sector.

Yes, the future of biotechnology. Incidentally, it is interesting in the way in which this section is phrased that pride of place goes to the office of the Minister for Enterprise, Trade and Employment, the door through which the biotechnology industry will enter. This is an interesting give-away as to where the emphasis lies. The area is appropriate to primary legislation. We should revisit the issue at some stage.

Having the future of GM foods and crops decided by way of regulations is not appropriate. We should have primary legislation on GM crops and biotechnology. This would enable the country to address the issue in an informed way and set down an appropriate regulatory framework. We could define the first principles and let the regulations follow from them. What is happening is that in the absence of primary legislation the regulations will effectively be made for us. What this legislation provides for is the putting into effect by regulations of whatever is decided in Europe.

As the Minister said, we were ahead of the posse in 1992. To be fair, we have probably taken a more cautionary approach than some other member states of the European Union, which is to be commended. We might want to maintain this or have a tighter regime than applies generally in the European Union. Therefore, we need to have primary legislation in this area. It is an issue to which we should return.

I do not disagree with the Deputy. It is my intention to return to this issue when we reach the substantive point. All I want to do is to strengthen our hands rather than leave the situation as weak as it is because matters have changed. In the broad sense I agree that we need a more substantive debate on the issue.

If the Minister pushes this amendment, he will provide another argument to be thrown at me in the next debate I have with a representative from Monsanto. I will be told there is no need to worry about GM foods because the Minister has seen to it that the area will be highly regulated. Therefore, it will be full steam ahead without any problems. That argument is made any time one talks about any of the issues that arise. I will be told that what I say might well be true if the area was not regulated but because it is, there is no problem. I do not accept this. Unfortunately, my concerns may not just be a case of human error but also a case of unforeseen biological issues.

We should tell him we are strengthening the law.

The Minister knows how such matters are spun. I predict that in the next radio interview in which I participate it will be thrown at me that the biotechnology industry is tightly regulated and that nobody need have any concerns.

I can leave it wide open to meet the Deputy's——

I do not want to engage in barracking now. All I am saying is that it is important that the Government comes up with something stronger than that they will be precautionary. I do not want to make an analogy with sexual behaviour but how careful can a person be when it comes to trying to avoid problems? This is an area where the precautionary approach needs to be a little more hard and fast. We need to talk on an island-wide basis about where our competitive advantages will lie in the future.

Africa, which is already weak and depends on aid, has found itself completely compromised in this area. If it wants aid, the United States says it can have it but it must be related to GM foods. When it comes to making inroads for the biotechnology industry, the approach is as brutal as that. We need to be prepared for that type of ruthless blackmail, effectively from those pushing biotechnology GMO food production. If the Minister is inserting this amendment, the Government's position needs to be far clearer than just saying, "We are being very careful." For the biotechnology industry, this translates into, "Full steam ahead; we just have to watch ourselves." In other words, this is just a prompt for the debate. If this is inserted, there needs to be a Government response indicating that this is about resisting GM foods, not giving the industry an open door policy.

It is about strength; it is not just a prompt.

This matter is urgent because the conference of the biotechnology multinationals in California called by the US Government in the past two days shows what is coming down the line. Can the Minister say there is sufficient legislation to meet what will be a new and sustained barrage from the US Government on the European Union? The Minister has said there is no consensus within the European Union. I would say a big majority of the citizens of the European Union are opposed. It is true that the big corporations, which are organised in their lobby groups in the European Union and already have access to the European Commission, have a different approach, as do some members of the Commission. However, there is a majority view among ordinary people.

This is a critical area for the Minister for the Environment, Heritage and Local Government and has been since I first entered the Dáil. One of the first debates in which I participated centred on this issue because of the development of biotechnology and the pressure exerted by the United States for the acceptance of this technology and its release into the wild in Europe. It is of critical importance for the environment. After all, the EPA gave permission for the initial field trials in County Wexford and a few other areas. It should remain the primary responsibility of the Department of the Environment, Heritage and Local Government before trade and industry.

I share the concerns expressed. To use Deputy Sargent's analogy, the prompt is that I am strengthening the legislation. If a decision is taken in the European Union on a product or a number of products, I will have strong powers to act immediately by way of regulations, which is crucial. If the Green Party held this Ministry, this is exactly what it would need to be able to act immediately to regulate and control what could happen. That is what the amendment is doing. It uses much stronger language than heretofore. The second part deletes what is outdated and incorporates the move from BATNEEC to BAT - best available technology. This removes all of the economic and other considerations. We are moving to strengthen the legislation.

I take what Deputy Higgins is saying. There are hugely diverse views on this issue, including many in Ireland. The former Minister, Deputy Noel Dempsey, completed a paper in 1999 stating the Irish position was to be precautionary, from which I see no need to change. The issue will have to come to the fore. Interestingly, every time it comes up, nobody is prepared to run with it because there are serious concerns in many countries about how the matter should be dealt with. This keeps us strongly in the frame. There will have to be serious debate and further discussion.

We are not discussing health issues, which are the responsibility of the Minister for Health and Children and the Food Safety Authority. They must come into the frame. There are many elements. While we will have a substantial debate, I am using this opportunity to strengthen our hand and send out a direct signal that what we had formerly was not strong enough and that we will strengthen it.

Regardless of the health issues that will be addressed elsewhere, the marketing point of view is indicative. Some 76% of the respondents to a survey said that if they knew food was genetically modified, they would not eat it. This forms a clear marketing issue for this country, given our dependency on food exports. This should be a warning that we should not go down that road. If I was sitting in the Minister's seat, I would state clearly that Ireland should have a policy of maintaining a GMO-free food status. The Government should send out this message.

Given that Deputy Sargent has already taken Deputy Gilmore's seat, I warn the Minister that it is only a matter of time.

My focus is all wrong today, because I usually look at where Deputy Gilmore sits in that leadership position.

Amendment agreed to.
Amendment No. 134 not moved.
Section 14 deleted.
SECTION 15.
Question proposed: "That section 15 stand part of the Bill."

I plan to propose the insertion of an additional section between sections 15 and 16. That is where it would best rest, as it would deal with section 22 of the 1996 Act which deals with the issue of incineration. I want to give the Minister the opportunity to take an amendment that would effectively dump incineration off the island of Ireland, or at least this part, which we administer. I will be proposing an amendment in that respect.

We need some guidance. The Deputy is referring to an amendment on Report Stage when any Member can propose an amendment provided that it has been dealt with and arises from proceedings on Committee Stage. However, you will need to clarify whether what the Deputy has said is sufficient to guarantee his amendment will be in order on Report Stage. Perhaps he needs to elaborate on it somewhat more now.

He does not have to elaborate on it. Once it is referred to it will be included in the Official Report. As he has referred to it, there will no be difficulty.

I have referred to it in very general terms throughout the course of the debate and will do so again.

That is very much appreciated.

I have no doubt that you will be present in case there is any attempt to axe it by other agencies.

I am sure Deputy Morgan is reassured to have such support.

Deputy Joe Higgins always supports me.

Question put and agreed to.
Section 16 agreed to.
SECTION 17.

I move amendment No. 135:

In page 61, lines 5 to 11, to delete subsection (1) and substitute the following:

"17.-(1) Section 5(1) of the Act of 1996 is amended-

(a) by inserting the following definition after the definition of ’emission into the atmosphere’:

' "emission limit value" means the mass, expressed in terms of a specific parameter, concentration or level of an emission, or both a specific concentration and level of an emission, which may not be exceeded during one or more periods of time;',

and

(b) by inserting the following definition after the definition of ’waste licence’:

' "waste service" means any service, facility, approval or other thing which a local authority may or is required to render, supply, grant, issue or otherwise provide in the performance of any of its functions under this Act to any person or in respect of any premises;'.

(2) Section 5 of the Act of 1996 is amended by inserting the following subsection after subsection (1):

'(1A) In this Act, a reference to-

(a) the date on which a waste licence is granted is a reference to the date on which the licence is sealed with the seal of the Agency, and

(b) the date on which a decision by the Agency to refuse a waste licence is made is a reference to the date on which that decision, as reduced to writing, is so sealed.’.”.

This amendment proposes to insert new subsections (1) and (2) into the Bill. The purpose is to introduce a number of changes to the main interpretations section, that is, section 5 of the Waste Management Act 1996. Section 17(1)(a) provides for the introduction of a new definition of the term “emission limit value”. This definition is required as the term is used in the section 5(2) to be inserted into the 1996 Act elsewhere in the Bill. The definition is the same as that which section 5 inserts into the corresponding definitions section of the IPC licensing code.

Section 17(1)(b) is simply a restatement of the terms of the existing section 17(1) of the Bill, as published, and inserts a definition of the term “waste service” into the 1996 Act. Such a definition is necessary because of the use of that term in section 35 of the Bill which inserts a new provision into the 1996 Act in relation to charges for waste services.

Subsection (2) is a new provision. It is, essentially, a technical amendment designed to clarify the dates on which decisions to grant or refuse a waste licence are deemed to be taken. In the case of the grant of a licence, it is the day on which the licence is sealed with the seal of the agency. In the case of a refusal, the effective date is that on which the written decision to refuse the licence is sealed by the agency.

I did not see the additional list of amendments until today. I refer to the fourth line of paragraph (b) of the amendment: “. . . thing which a local authority may or is required to render”. I wish to raise a question in relation to the use of the word “may”. Would it not be stronger to provide that “a local authority is required”?

Local authorities have a qualified obligation to collect waste but, rather than doing it directly, it may be done by the private sector. However, a local authority cannot neglect to provide any waste service. That is the meaning of the provision.

On a first reading, it appears to allow a local authority to abdicate from one of its core public responsibilities to provide a service for people in its area.

This is in place already. I am simply reiterating what is already in place. There is no change involved.

In the light of other changes proposed, I am concerned with regard to the inclusion of the words "may or".

In case the Deputy thinks there is anything of a conspiratorial nature involved, I can assure him that is not the case.

After many years watching the carry-on which takes place, I may have developed a conspiratorial nature, which I do not deny. Many others are also concerned.

I understand what the Minister is doing in relation to paragraph (a), which is to include a new definition of the term “emission limit value”. In relation to the second definition, do I understand correctly that there is no definition of the term “waste service” in the 1996 Act?

No, it is a restatement of the existing terms of section 17 (1) of the Bill, as published. Sorry - I misunderstood the Deputy's question - his understanding is correct.

There is no definition of the term "waste service" in the 1996 Act.

No, there is not.

This is a substantial amendment, is it not? Is this not the amendment which is converting waste management by public authorities, as a public service, into what is, essentially, a commercial operation? Is that not the effect of the definition in this amendment?

Because it is a new situation, the definition is necessary. That is what this provision does.

Why is it necessary?

Because we did not have a waste charging regime previously.

That is the reason I am opposed to the definition which is, essentially, commercialising and, in many cases, privatising what was previously a public service.

This section is not doing that - we will come to other sections. However, we have already moved far beyond the situation to which the Deputy referred - half the local authorities in the country are no longer operating a direct waste collection service but there is no definition.

If there is no definition of the term "waste service" in the 1996 Act, how have services which were previously operated by local authorities been privatised? How have local authorities been in a position to charge for services if there was no definition of the word "service" in the 1996 Act? If a definition is necessary in this Bill, is the Minister stating the absence of a definition in the 1996 Act means that local authorities have been making illegal charges for services? In the case of local authorities which privatised services, was this illegal when the service was not defined?

No. Special legislation was introduced in 2000 to ensure local authorities always had the right to charge. That issue is behind us. What had not been done was to define the term "waste service". That is what I am now doing.

The 2000 Act simply gave retrospective effect.

It copperfastened the situation.

No. It simply gave retrospective effect. At the time there was a doubt about the legality of the action of local authorities in charging for a service. However, notwithstanding the 2000 legislation, if it is necessary to introduce a definition of "waste service" in this Bill in order to underpin the charging regime, does it not follow that the absence of such a definition in the 1996 Act renders illegal such acts as were undertaken by local authorities, either in charging for a service which was not defined in the first instance or in privatising such a service?

No, that is definitely not the case. It is our job, as legislators, to define the term "waste service", rather than leave it to the courts to define. That is what we are doing.

Does that mean that this definition of "waste service" could include, for example, bring centre facilities? Are they included in the definition?

I am making a presumption that they are included. Local authorities actually apply a charge at certain places where such facilities currently operate. However, the Deputy has raised a good question, to which I will return on Report Stage if I find that further clarification is needed. I have made a presumption, without specifying it, that such facilities are included.

One can envisage a situation in which, at some future stage, this legislation could be used to charge members of the public for access to recycling facilities which, in theory, one would want to encourage.

Some local authorities already do.

Yes, but that defeats the purpose.

It does not, in the sense that it is substantially cheaper than other options. Nobody has ever suggested that recycling does not involve a cost factor.

It is very expensive.

There are costs involved. However, an approach based on recycling will be far more attractive, in cost terms, than other alternatives such as landfill sites.

Amendment agreed to.

Amendment No. 136 in the name of Deputy Cuffe and amendments Nos. 137 to 140, inclusive, are related and may be discussed together, by agreement. Is that agreed? Agreed.

I move amendment No. 136:

In page 61, line 17, after "operation" to insert "equal to, or exceeding the best standards in force in any EU Member State".

The thrust of the amendment is to ensure we have the best available technology and standards in the European Union. I await the Minister's response.

The Minister has referred to the objective in the licensing and waste provisions of the Bill to shift from the somewhat outdated concept of BATNEEC - best available technology not entailing excessive costs - to that of best available technology. We agree with this shift but the problem is that the definition of the term "best available technology" means that we do not get the best available technology. The old BATNEEC principle is restated in a different way instead. The definition of the term "best available techniques" in the Bill refers to "where that is not practicable, generally to reduce an emission and its impact on the environment as a whole". The definition of the term "available techniques" refers to "economically and technically viable conditions" and to "taking into consideration the costs and advantages". One can debate the use of language but there is no point in misleading ourselves by believing we are talking about the best available technology. We are talking about the best available technology that is practical to use and economically and technically viable. There is no point in the Minister dressing himself up as the angel of best available techniques or best available technology.

Or as Batman.

We should not accept whatever version of himself the Minister is trying to give us.

I am not trying to tell the committee anything. What it sees is what it gets.

We are being given the old BATNEEC approach - the best available technology as long as it does not cost too much, it is technically viable and practical. That is what was involved in the BATNEEC approach, which is being restated in different terms. It is clever use of language but it is not changing anything.

I would not go that far, although I understand some of the sentiments the Deputy has expressed. It was difficult to bring 15 countries together. Therefore, I wonder what it will be like when we try to bring 25 countries together at meetings. I wonder what sort of language we will come up with. Everybody feels they have the right interpretation but we will see as we go along. There is no question that the Commission has made a very determined effort. The Commissioner, whom I know well, very much knows what is meant by the term "best available technology" and the reason we moved in that direction. It is welcome.

The definition to be introduced under section 17(2) of the Bill is necessary to give effect to Articles 2, 3 and 9 of the IPPC directive. It is taken from the directive and mirrors the corresponding definition being included in the IPPC licensing code, from which it is obvious that I do not intend to depart. This has been agreed at EU level and I am transposing it.

The effect of amendment No. 137 would be to render the definition of the term "best available techniques" impractical, as it suggests that in licensing activities subject to the BAT requirements, all emissions from every activity could be eliminated. The proposal would, in effect, undermine the definition of the term "best available techniques" in the directive and force applicants and licence holders to apply such techniques, irrespective of the practicalities of totally reducing emissions. A more appropriate approach is for the EPA to determine "best available techniques", either generally or in particular applications. Such a system could work extremely well.

Amendments Nos. 139 and 140 would also have an impractical effect, as the "best available techniques" approach provides the basis for minimising emissions from a licensable activity with costs and advantages arising. In other words, the concept of cost benefit must be taken into account as well as considerations of economic and technical viability. The definitions in the directive recognise that it would be impractical and unreasonable to do otherwise, as suggested in the amendments. There is a compromise in the language because it is not absolutely possible at all times to achieve the ultimate goal, which might not necessarily give one what one wants. The EPA can make the decision in this regard.

Amendments Nos. 136 and 138 would have the effect of altering the definition of the term "best available techniques" taken from the IPPC directive. This would be problematic for the same reasons I outlined in relation to other amendments. We have taken what was agreed at EU level and in the directive and transposed it into the Bill. I do not have a choice in that regard. It would not stand up to have a different regime here and elsewhere.

We will not disturb the European consensus for the moment.

Amendment, by leave, withdrawn.
Amendments Nos. 137 to 140, inclusive, not moved.
Section 17, as amended, agreed to.
Section 18 agreed to.
NEW SECTIONS.

I move amendment No. 141:

In page 62, before section 19, to insert the following new section:

"20.-Section 10 of the Act of 1996 is amended-

(a) in subsection (1)(a), by substituting ’€3,000’ for ’£1,500’,

(b) in subsection (1)(b), by substituting ’€15,000,000’ for ’£10,000,000’,

(c) in subsection (2), by substituting ’€3,000’ for ’£1,500’,

(d) in subsection (3), by substituting ’€1,000’ for ’£200’, and ’€130,000’ for ’£100,000’, and

(e) in subsection (4), by inserting after ’extent of environmental pollution’, ’, and any remediation required,’.”.

This amendment seeks to insert a new section 19 into the Bill, introducing a number of changes to the terms of section 10 of the 1996 Act which sets out the penalties which apply to offences under various provisions of the Act. The changes are primarily designed to update the fines provided for in that section, setting them out at a similar level to those which apply to offences under the IPPC licensing code. I will outline the changes to be introduced under the terms of section 19. The maximum fine applicable to summary conviction will be increased from just over €1,900 to €3,000. The maximum fine applicable to convictions on indictment will be increased from the euro equivalent of £10 million to €15 million. The maximum daily fines applicable to offences which are continued following an initial conviction will also be increased, to €1,000 in the case of summary conviction. The corresponding new maximum daily fine in the case of indictable offences will be increased to €130,000.

The final change to be effected by the new section 19 is an amendment of section 10(4) of the Waste Management Act 1996. Under that section, when a court is deciding on a penalty to be imposed on a person found guilty of an offence, it is required to have regard to the risk or extent of environmental pollution arising from the circumstances which have given rise to the offence. When the courts are deciding on penalties for offences, they should also be required to have regard to the cost of remediation associated with the environmental pollution that has arisen, a point made by Deputies. The amendment provided for in paragraph (e), therefore, seeks to change section 10(4) of the 1996 Act to add this consideration to the factors to which the court must have regard. Amendment No. 25, discussed earlier on Committee Stage, involved a similar change to the IPPC licensing code and was welcomed by Deputies. This amendment is a mirror version.

The existing waste management legislation includes a stiff set of penalties for breaches of it. The fine of £10 million provided for in law has now been increased to €15 million. Other fines and penalties, including the daily penalty, have been increased correspondingly. The problem is that prosecutions are not brought in the Circuit Court, as most cases are dealt with on a summary basis in the District Court where the maximum fine will remain at €3,000 - a pathetic fine for illegal dumping, for example. I remember once seeing a list of the number of prosecutions brought and details of where they were brought. If prosecutions are not brought for offences as indictable offences, the fact that the Bill allows for a fine of €15 million, penalties on a daily basis and prison sentences for those in breach of this legislation, such as the operators of illegal facilities, will not cut any ice. I would like the Minister to tell us what, if anything, is being done to ensure prosecutions will be brought in a suitable court on a basis that will give rise to the imposition of heavy penalties. Having a regime for indictable offences with heavy penalties - no one doubts we already have one - will be of no use if, in practice, local authorities and the Environmental Protection Agency take breaches, including serious ones, before the District Court where the maximum fine is €3,000.

Again, I raise an issue which is as closely related to the amendment as I can find. The term "executive function" on line 18, page 62, in relation to the making, approving and reviewing of waste management plans, should read "a reserved function".

The Deputy is ahead of himself. We will come to that issue soon.

I am working from the amended version of the text which I have just received.

On Deputy Gilmore's point, there is clear evidence that higher courts are being involved. District Court judges are refusing to hear these kinds of cases and are referring them to higher courts. The County Wicklow case, for example, went straight to the High Court where a conviction was secured and substantial penalties were imposed on the director of the company in question. That was a significant development. Members of the committee should also note that files are being prepared for the Director of Public Prosecutions on many other cases. We are beginning to see change.

Obviously, the Deputy is not suggesting we reduce the maximum fine. I agree with him. Fines, while necessary, must also be implemented. Clear evidence is emerging that this is happening. The County Wicklow case which was - correctly - referred straight to the High Court led the way and there are others in the pipeline.

The fines, when imposed, are and should be a serious deterrent as well as a punishment. Does the Department not face the difficulty, addressed to good advantage in the plastic bag levy, that fines will not necessarily be used to deal with the problem created by the offence? Remediation, which we will consider later——

That issue is addressed in paragraph (e).

I ask the Minister to reconsider the previous amendment to ensure the freezing of assets becomes part and parcel of remediation. We need a clear requirement that the freezing of assets will be maintained until such a time as remediation has taken place. Notwithstanding the fines, which stand alone as a deterrent and are required for good reason, is it possible to place greater or equal emphasis on remediation by linking it to the freezing of assets, thereby ensuring it is carried out in a satisfactory rather than cursory fashion?

While I do not wish to discuss individual cases, it is interesting that in the County Wicklow case the judge found the two directors of the company in question personally liable. In the event that the company or landowner cannot pay for remediation, the directors will have to pay the costs. I presume these will be decided by the courts and, if necessary, their assets will be seized. The court has been clear on this matter.

The County Wicklow case was a defining one in terms of the issue of waste management. I welcome this. As I said, files are before the Director of Public Prosecutions on a number of other cases. Deputy Gilmore was aware of the case before it was brought before the High Court, which was the correct approach to take in a case of this magnitude. The finding by the judge that the individual directors were personally liable was interesting and highly significant. If it transpires that the landowners cannot pay the cost of remediation, the courts will decide how it is to be met.

Amendment agreed to.

I move amendment No. 142:

In page 62, before section 19, to insert the following new section:

19.-he following section is inserted after section 11 of the Act of 1996:

11A.-In a prosecution for an offence under section 32(6) or 39(9) relating to the recovery or disposal of waste on any land where it is proved that, by reason of-

(a) the nature of the particular recovery or disposal activity that was carried on,

(b) the period of time over which it appears that activity was carried on,

(c) the characteristics of the land and the degree of use or control it appears the owner of the land made of, or exercised in relation to, the land at the relevant time or times, or

(d) any other relevant circumstances,

it is a reasonable inference that the recovery or disposal of waste on the land was carried on with the consent of the owner of the land then, it shall be presumed, until the contrary is shown, that that recovery or disposal was carried on with that owner's consent.'.".

In enforcing the provisions of the waste management Acts difficulties can sometimes arise in proceedings against the owners of the land on which the alleged illegal activity has taken place. These difficulties centre on proving the extent to which the landowner was complicit in the alleged illegal activities involved. I am, therefore, proposing to introduce a new provision under this amendment, the purpose of which is to provide that, in certain circumstances, it will be assumed that the owner consented to the illegal activity unless the contrary can be shown. The provision sets out a number of specific factors which are to be taken into account in arriving at this presumption. These include the nature of the activity concerned, its duration, the characteristics of the land involved and the extent of use or control which the owner made of the land at the times involved. I am satisfied this provision will provide an additional, forceful deterrent against landowners making their lands available for illegal waste activities and, where such cases arise, facilitate more successful enforcement action. It constitutes a significant shift in the burden of proof.

I will put a scenario to the Minister. I was taken by a landowner to the edge of my constituency to view a continuing problem he had been experiencing in a particular strip of land bordering the boundary of a rather remote section of road. One of his difficulties was that people systematically dumped material on his land in the middle of the night. He had no control over this illegal dumping and did not want it to happen. He was not a particularly wealthy individual and wanted somebody to deal with the matter. In such circumstances, will a landowner find that under the new provision, it will be presumed that such dumping on his or her land was illegal and that he or she will be liable for it? While we all want to stop illegal dumping and its facilitation by landowners, we also want the legislation to be fair. We do not want landowners who are victims of illegal dumping to find themselves on the wrong side of the law.

I accept the Deputy's point, which is the reason the section has been constructed in its current form. If a portion of a person's land, which may be isolated but accessible, is being used for illegal dumping which he or she does not want to occur, it would be fair to assume that once he or she has discovered it and notified the local authority, it will be clear that he or she is not involved in the practice. There is no question that the veracity of the person's position would be accepted in such circumstances, as he or she would clearly not be involved in illegal dumping. The section has been constructed to ensure the presumption of guilt on the part of the landowner will not be automatic in all cases.

We need to strengthen our approach to this activity. Once a landowner has alerted the authorities that illegal dumping is taking place, his or her position will be accepted. The section strikes a balance. While the Deputy's concern is fair, it will be overcome in the section.

I welcome the new section because this issue needs to be addressed. However, actions will speak louder than words in terms of the legislation. As we all know, illegal dumping, with which I am familiar in north Dublin, is a daily and nightly occurrence. Landowners have called me in the dead of night to witness the latest episode. It is a sophisticated operation nowadays. There is a system called fly-tipping in place, under which a lorry backs into a field, accelerates quickly and deposits the contents on the ground. A can of petrol is then produced and the contents are set alight to try to destroy as much of the evidence as possible. Debris and metal are left in the field which will either wreck machinery or, more seriously, injure somebody. Far more is required than this provision that a landowner may not be the person who is guilty. The follow-up of illegal dumping is very slow. It happens night after night, very often on the same land.

Does the Minister have any advice to give, be it to the Garda or anybody else, as to how matters can be speeded up? It may require additional resources but this growing problem is not being addressed. It is continuing, mainly because people are getting away with it, a point I hope we can address in the legislation.

Has the Minister considered any provisions in respect of local authority responsibility in this regard? It seemed incredible to some of us that the local authority could not have been aware of what was going on in regard to some of the discoveries of illegal dumping sites in the past 12 or 18 months. In many cases those involved were not fly-tippers dumping a load now and then. Some of the finds indicated sustained activity over a period of years with a huge volume of material. It beggars belief that the local authority, at some level, was unaware of what was going on. I will not refer to specific cases. Surely, there must be an onus on the responsible officers in the local authority to investigate if they have any suspicion in regard to consistent and wide-scale illegal dumping activity?

I accept the points made by the Deputies. I am glad there is general support for the provision and the balance struck in this regard.

I am as incredulous as Deputy Higgins as to what was going on and who knew about it. I am not in a position to point the finger but last Friday, in the context of this legislation, I aimed to introduce a greater understanding among local authorities and the EPA of their responsibilities under the legislation in respect of supervision and so on, a matter to which I might return on Report Stage.

In regard to a point made by Deputy Gilmore, in the context of authorised persons, it might be helpful if the Garda was also included. This might provide valuable additional strength. It strikes me that this may be what the Deputy had in mind.

I am sure the Garda will be delighted.

There were untold individuals involved in the situation in County Wicklow.

I thank the Minister. It will probably help the situation. Does the reference to disposing "on land" include, for example, a quarry or disused mine?

The definition in the 1996 Act specifies that "land" includes any subsoil thereunder and structure thereon and land covered with water, whether inland or coastal.

Does it include quarried land? Would it be possible, for example, for the owner of——

I presume that would include subsoil.

Would it?

I presume it would.

Subsided.

Subsoil.

It might be worth checking out before Report Stage.

It is worth looking at.

One never knows. A smart lawyer might find that the owner of a quarry was exempt.

Yes. I take the point.

Would it be possible in that context to also examine disused mine shafts?

We will return to this issue after my pre-emptive strike on the matter of reserved functions versus executive functions. There might not be much interest in the matter on the part of backbenchers because it looks as if the dual mandate is going but if Deputy Ring's case succeeds, perhaps this will become a serious issue for them once again. They may wish to seek some authority in their local authorities. If that is the case, I am sure the Minister will agree with my amendment that the making, reviewing and amending of waste management plans should not be an executive function but an issue for elected members.

We are dealing with amendment No. 142.

Amendment agreed to.

I move amendment No. 143:

In page 62, before section 19, to insert the following new section:

21.-(1) Section 14(1) of the Act of 1996 is amended by substituting the following paragraph for paragraph (b):

'(b) at any time halt (if necessary) and board any vehicle and have it taken, or require the driver of the vehicle to take it, to a place designated by the authorised person, and such a vehicle may be detained at that place by the authorised person for such period as he or she may consider necessary for the purpose.’.

(2) Section 14(4) of the Act of 1996 is amended-

(a) by inserting in paragraph (a), after ’photographs’, ’, record such information on data loggers, make such tape, electrical, video or other recordings’,

(b) by substituting in paragraph (b), ’make such copies of documents and records (including records in electronic form) found therein and take such samples’ for ’and take such samples’, and

(c) by inserting in paragraph (f), after ’such records and documents’, ’, including records held in electronic form’.”.

My amendment, with which I think Deputies will agree, strengthens the powers of authorised persons.

Amendment agreed to.

I move amendment No. 144:

In page 62, before section 19, to insert the following new section:

22.-Section 16(1) of the Act of 1996 is amended-

(a) by substituting in paragraph (d) ’that address,’ for ’that address, or’,

(b) by substituting in paragraph (e) ’near the premises, or’ for ’near the premises.’, and

(c) by inserting the following paragraph after paragraph (e):

'(f) by such other means as may be prescribed.’.”.

The amendment inserts a new section, section 22, in the Bill, making a number of changes to section 16 which deals with matters relating to the serving of formal notices under the various provisions of the legislation. In particular, it deals with changes in technology which can open up new possibilities in relation to ways in which notices under the Waste Management Act can be served. Against this background the amendment proposes to include a provision under which additional mechanisms for the serving of notices can be prescribed in regulations. I am trying to keep pace with modern technology.

Amendment agreed to.
SECTION 19.

Amendment No. 145 is in the name of Deputy Cuffe. Amendments Nos. 146 to 148, inclusive, are alternatives while amendmentNo. 203 is consequential. They may be discussed together.

I move amendment No. 145:

In page 62, line 18, to delete "be an executive function" and substitute "remain a reserved function, but the elected members shall have due regard to the advice of the executive concerning all aspects of the plan".

We have reached the amendment for which many of us have been waiting. The executive function being introduced by the Minister is being resisted. The amendment suggests that the executive function aspect should be deleted and that the functions relating to waste, in particular, should remain with elected members, having due regard to the advice of the executive concerning all aspects of the plan.

The body of legislation has a series of layers of mistaken measures extending back to the Waste Management Act 1996 which started the rot when it failed to require local authorities to have waste management plans for their functional areas. Instead, it forced them to throw their lot in with a number of other local authorities, all of which had to be satisfied with just one large regional plan. At the time I did not have a problem with a regional plan but I did have one with the fact that local authorities did not have plans for their functional areas. This allowed a vague situation to arise in which waste from throughout the region could be said to have come from any local authority area in the region, yet there were no clear guidelines regarding what was to happen to it within the local authority area from which it had originated. This led to the estrangement of local authority members who then had to take the advice of consultants on the best course of action. They became very much secondary players in the making of decisions. This has been exacerbated in that they are being presented by the manager, in co-operation with the consultants in question, with a plan that amounts to afait accompli.

We need to roll back on the set of rotten measures that have left us with a logjam in terms of waste management. This legislation marks an attempt to put a stick of gelignite in the logjam, take responsibility away from local authority members altogether and let county managers do whatever they wish, thus storing up huge problems, rather than engaging in consultation and allowing elected councillors take back some of the power and use it by way of reserved functions in their areas. It is making matters worse.

I regret that this problem has arisen. It may satisfy some companies which hover like vultures while waiting to build the odd incinerator here and there and profit therefrom but it will not assist in putting in place the measures required to address the waste crisis by reducing the generation of waste and setting targets. I know the Minister will ask me to prove this can be done before talking to me about it but a zero waste strategy needs to be articulated and taken, stage by stage, towards its logical conclusion. This legislation will not help in that regard because the plans are far from espousing a zero waste strategy. They will change one form of waste into another. If we build incinerators, we will have to deal with the ash produced, which will be another day's work.

The Minister's plans are not solving the waste crisis but trying to distract by giving the power to the country manager. This will lead to major local verbal battles, for want of a better phrase. The reserved function should be implemented within local authority areas, not within a wider region. This is because local authority members are not elected to be responsible for a region but for a local authority area. They should have a waste plan for the area they are elected to represent. A regional response could be part of such a plan. The mistake we made originally was that we did not require each local authority to have a plan for its functional area. We should address this mistake.

David Begg, in his capacity as chairman of the new Democracy Commission, has written a very interesting article in today's edition of theThe Irish Times questioning the reason there has been a decline in the number who vote. The amendments we are discussing are very relevant to this question because the issue under discussion is that of democracy. It is an issue of whether public policy decisions - decisions on waste management in this case - will be made democratically by elected representatives who are accountable to the people who elected them or whether they will appear out of the ether of the administrative side of government and end up being imposed.

The legislation implies that waste management plans will not be made democratically hereafter, either at local government or national government level. If the Minister is unhappy with the way in which local authorities are exercising their functions in respect of the making of waste management plans, he has an alternative, namely, to introduce legislation that would empower him, perhaps by reference to this committee or the Dáil, to make a national waste management plan. At least, that would ensure it would be done in a democratic way.

The 1996 Act gave responsibility to local authorities that was to be exercised as a reserved function by their elected members, and most did exercise it. The Minister's predecessor concluded that it should be done on a regional basis, which seemed to prejudge what local authorities might decide and the question of whether regions seemed to be tailormade, either for incinerators, large landfill sites or a combination of both. The grouping of local authorities seemed to prejudge what would emerge from the plan. When the process began to become unstuck in some local authorities, the Minister's predecessor introduced a milder version of what the Minister is now proposing, namely, that responsibility would default, in certain circumstances, to county managers if local authorities failed to all agree to the regional plan put before them.

The Minister is now going a step further and saying waste management plans will be made by county managers. In practice, this means that the plans for local authorities and regional areas will, in effect, be made in the Minister's Department and handed down to county managers. A grand plan for dealing with waste is being pursued through his Department, of which the Minister is an enthusiastic champion and advocate. It will be the responsibility of county managers to implement it. I do not agree with that approach. It is acknowledged there is a big problem with the present waste management system, but nobody has a monopoly of wisdom as to how to deal with it. There will always be differences of priorities in the direction of investment. However, at the very least, the decision should be made democratically. The nett effect of the provisions of this Bill is that the real decisions on waste management will not be made by elected representatives but in the administrative world - I have the highest regard for those who work there - which is populated by officers of local authorities, the Department and the EPA.

The only interface with the democratic side of the decision making process will, in all probability, be through the Minister who does not actually have an official function in relation to the making of waste management plans. We will have the worst of all worlds in the absence of a national waste management plan for which the Minister takes responsibility and is accountable to the Oireachtas, or local waste management plans made by elected members of local authorities, for which they are accountable to those who elected them. What we will have will be somewhere in the middle, for which authority is being given in this Bill and for the initiation of which responsibility will rest with county managers as an executive function.

County managers will not formulate their own individual waste management plans. They will dance to a tune written and orchestrated in the Department, but for which nobody is politically accountable. Irrespective of arguments in relation to recycling, incineration and landfill - those are policy issues on which we may differ - the decision which is finally made should be by elected representatives who are accountable to the public. The effect of the Minister's proposals is that critical decisions on waste management - in terms of how it is to be handled; whether it is to be collected and, if so, by whom; where it is to be brought; whether it is to be landfilled or incinerated; what proportions are to be recycled and in what way; what charges are to be applied - will be made in future by people who are not directly accountable to the public and cannot be given a direction by public representatives.

If, in the local elections next year, a voter's immediate concern is in relation to an issue concerning waste management, why should that person vote? None of the candidates in those elections will have any say in waste management, handling arrangements or the application of charges. Electors might choose to exercise their vote as a protest or as a signal of support or disapproval of the policies of one party or another. However, that is not greatly different from filling out a form in an opinion poll, because the local authority members elected next June will have no say in the waste management system. The formulation and amendment of waste management plans and every aspect of waste policy will be decided by county managers on the basis of some national grand plan, for which the Minister is the chief advocate. We can expect to have about five incinerators and a number of landfill dumps.

If that is the direction we are proceeding, it would be more honest on the part of the Minister to state openly that decision making on waste management plans at local authority level is not working; that there is to be a new approach through a national waste management plan and that he, as the Minister with responsibility for the environment, will propose, formulate, stand over and be accountable for the plan. At least on that basis the public can see where the political responsibility lies and who is accountable. The provision in this regard in the Bill cannot even be described as a transfer of function from local government to a democratically elected central Government. On that basis, I would still argue against it as being contrary to local democracy but it is even worse than that: it is transferring what is properly an area of policy and decision making, which should be conducted democratically by local or national politicians, into the administrative ether, for which there will no longer be any political accountability. Quite apart from it being a bad approach to waste management, it is bad legislation in purely democratic terms. I suggest that the Minister should withdraw the Bill.

I strongly support Deputy Gilmore's comments. This Bill represents a death sentence for democratically elected local authorities and treats the local electorate with contempt. The current Minister and his immediate predecessor were sold on the idea of regional waste management plans. The same consultants were appointed in most, if not all, regions to draw up plans. They brought forward the same conclusions for each region, involving an incinerator in the highest population centre and a landfill site at some other location. That is completely contrary to any democratic basis.

In Galway city and county areas, local councillors from various parties had met and there was great co-operation between the city and county councils at the level of elected members. Fine Gael councillors, with some support from others, had made substantial progress towards agreement in principle on a waste management plan for Galway city and county areas. The intention was that Galway City Council would cater for collection, separation, recycling and composting facilities while the county council would accept a landfill operation at a selected site. However, that approach was not accepted. Eventually, under the previous Act, which is now being copperfastened by this Bill, county managers are given authority to adopt regional waste management plans. That is wrong from every aspect.

On the basis of a Connacht region including Sligo, Leitrim, Mayo, Roscommon and Galway, the local authority members in Mayo, Roscommon, Sligo and Leitrim would, of course, vote for a waste management plan which would include the location of an incinerator in the largest centre of population - Galway city - a large landfill site in County Galway and another elsewhere in mid-Connacht. That approach simply amounted to passing the buck. If the people of Galway city and county were responsible for decision making on disposal of their waste, there would be a more concerted effort.

The Deputy's approach would ensure that there would be no waste collection service whatsoever. The recent county development plan for Galway proves my point in that regard.

Why does the Minister not strike it down, if that is the case - he is in Government?

In the Galway city area, we put forward a very ambitious plan for waste separation into 11 or 12 different categories, which I do not propose to list at this stage. There was great enthusiasm for this in the city area, where we have reduced our dependence on landfill by 50%. That is a real achievement. Quite suddenly last year, Galway City Council abandoned that scheme. We had four bags in our garage and were separating paper, cardboard, plastic and washed milk cartons - now we must put all of those into one green bin and I do not know where they are going. The people have lost the desire that was there because they know, according to the legislation that is there now, and the Connacht waste management plan, which was subsequently adopted by all the managers, that incineration, which is part of that plan, will be facing them down the road. Why bother to separate one's waste if it is to be burned anyway? It is ridiculous; it does not make sense. Whatever responsibility rests with councillors, the people can deal with them at the next election - they can no longer be fooled. But there is no opportunity of dealing with the manager. People will have no interest whatsoever in the waste management plan and, as Deputy Gilmore has said, they will quickly lose any interest in the elected members of the local authority because elected members will have no say in the matter.

Furthermore, when the elected members are not the people responsible for making the decision and fixing the charges thereof - we will be dealing with them later - they will not have to defend it any more. This is a backward step. The people making the decisions should have to defend them on the doorsteps. If waste charges go up, the members who decided on the waste charges should have to defend the decision. I have done that; I have defended the decision from the point of view that it is necessary if we are to dispose of our waste. No longer will I have to defend the decision if the manager has the full authority vested in him by the Minister to fix charges. Why should I go out and defend the actions of the manager? It is the most backward step I have seen in my 27 years on local authorities, both as a city councillor and a county councillor. It kills democracy at local level. I appeal to the Minister to have another look at this section or withdraw it altogether because it is certainly not going in the right direction. It will kill any incentive for local representatives to represent their areas in a responsible manner. Many local authorities act responsibly in this matter. I could not be more strongly against this proposal.

This is a reactionary measure and is beyond anti-democratic. It is unfortunate that the Bill has been polluted by a number of these proposals - otherwise the Bill has a lot of support because of its intent to strengthen environmental protection. I am afraid that this and a number of subsequent measures will not in fact have this result, but the opposite. This Bill and its positive and progressive measures are devalued by this provision, among others. The Minister is dictating that all aspects of the waste management plan will be in the ownership of professional consultants, linked to private waste management companies, disposal companies and so on. The county managers will now simply call in the consultants, probably related to multinational corporations specialising in incineration and various waste disposal techniques, and these will essentially write the plan. That is what is being dictated by this provision. Their conclusions will be utterly self-serving: the plan will be to provide plenty of waste to keep the incinerators going in the interest of profit for the companies - probably conglomerates with the way the EU is going - who own them. It is a fundamental attack on local democracy.

The Minister will probably say in his defence that he is proposing this because of the opposition that arises to certain proposals for the siting of landfills or incinerators, or the very concept of incineration. The Minister's answer to that, instead of looking at alternatives, is to cancel out the opposition at a stroke. The poet and playwright Brecht spoke in a different context about abolishing the people and electing a new one and that is what the Minister is doing. This Government and previous ones have not grasped the nettle on this matter. Measures could have been introduced long ago - there are some now, but not enough - to reduce significantly the need for landfill and obviate the need for incineration, but the Government has never challenged the fact that vested interests create the bulk of the waste.

The 1998 EPA national audit found——

I have been savaged by just about every organisation because of the regulations I am bringing in. Deputy McCormack thinks it is his local council that has reduced landfill in Galway by 50% but he should wake up to the fact that it was all the measures that I have brought in recently that changed all that - packaging regulations, waste regulations, construction industry regulations. I have been responsible for all this reduction.

It is certainly going in the right direction but it is very late in the day.

That is another argument.

The 1998 audit pointed out that big agriculture, big construction and big business was producing most of the waste - we will get to the householders later. This provision, however, is there to answer opposition in communities to huge landfills, which one can understand - one only has to talk to the communities who have endured landfills, particularly the old ones. What the Minister is proposing here is a measure that arises out of the failure of Governments, until recently, to reduce significantly the need for landfill or incineration. If the Minister is now saying that he has a plethora of regulations that are biting in——

They are biting hard.

The Minister needs to go much further, but I will come to that later when I discuss householders. If these regulations are reducing waste considerably - for example, if recycling is being insisted on in the construction industry - the need for landfill and other means of disposal should be significantly reduced, so why does the Minister need to put in here a measure to bludgeon communities into submission, which is essentially what he is doing by giving the county manager this power?

I will answer that shortly.

That is what it will come down to. The Minister's previous Government made a big deal of providing a constitutional basis for local government while simultaneously undermining it with measures such as this, which slices off a larger area reserved to the elected members. The point posed by other Deputies is correct: when the local elections come around, people will ask what is the point of having elected representatives. Will any powers be left to locally elected people by the time of the next local election or the one after that if this——

I do not think people ever thought local councillors were doing anything about waste management in their area; they certainly have not come to that conclusion.

I have been on a local authority for 12 years; I resigned just last week. This has been constantly on the agenda and, as far as householders are concerned, there are quite good and effective measures in place. However, there was not sufficient back-up. For example, a huge amount of construction waste was going into the landfills run by our local authority for a considerable period because the powers were not there to prevent that. If the councils had been able to rely on stronger action from the Government they could have been much more proactive.

Simply taking away another function of elected local representatives is anti-democratic and will give rise to far more controversy in the future because the county managers will not have the sensitivity or local knowledge required or be armed with the feelings of the population in the same way as those who have to answer to the people directly. Some county managers will not even live in their functional area.

Most of what I wanted to say has been said. Normally that would not be enough to stop somebody in this position saying it again anyway, but it is on this occasion.

Then I can move on.

No, I said most of it. I have just two questions for the Minister, the first of which has been posed. What will local authority members do after this is adopted? What function have they? I ask the Minister to define their role and tell me what it is. Second, as I asked earlier, when will this come into play? Will this kick in before the local elections in 2004? When does the Minister propose to actually implement this legislation and get it up and running?

I have listened with great interest to all the points made. I understand how people feel but I ask myself one simple question: why then have we an incredible waste crisis? It is probably the worst waste crisis in the European Union or in the developed western world. I wonder why we have that if local authorities were doing all these wonderful things over the last number of years.

Local authorities could have stopped this going on for years. They could have stopped builders dumping rubble into landfill. They had all the powers in the world. They could have stopped local shops from dumping packaging waste but no councillor ever did so. That could have all been done. They did not have to wait for me to come along with regulations to stop it. They could have done that over the years and stopped anything at all going into landfill if they wanted to but that did not happen.

What we have, after a long and very difficult process, is regional waste management plans in place. I see no merit now, by backdoor or any other means, of trying to tear asunder those plans completely. I have lots of choices. On the day the Taoiseach appointed me to my ministerial office, I could have gone down to the Custom House and said it was wonderful, met my very experienced staff and said they were all lovely people, got into my lovely car - not that I am impressed by cars, which do not bother me one way or the other - and decided for the next five years to have plenty of photo opportunities, travel the world, enjoy myself and not bother with any of this. I did not have to take this on.

I could have done nothing but I decided I was not going to do that. In answer to DeputyGilmore, I have clearly, in the public domain, decided to take political ownership of and leadership on this issue. One of the first issues on my desk when I came into the Department was to set up the Waste Council. We can have another three year debate, another body, as I said before, to have another load of appeals and another load of discussion. I can commission more reports, studies and investigations while the crisis gets worse and worse - and we have a crisis.

I point out to Deputy McCormack that it was not I who engaged the consultants but the local authorities of which he was part. Do not lay the blame for that one at my door. Then it was decided at regional level, and rightly so——

The Minister——

Just a moment, I did not interrupt anybody. I strikes me in my own region - I will not speak for any other region - that economies of scale can be achieved by not having to produce landfill sites in every county and so on. If we looked at things on a regional level and looked at the totality of the problem and the issues, we could maximise recycling and prevent, minimise to the smallest level the amount of landfill that we need and yet minimise to the lowest level what we need on the incineration side as well. As well as incineration we could get thermal treatment and move from waste energy to power.

These all seem reasonable proposals. We have looked at all of these matters internationally and put this hierarchy together. Deputy Gilmore is right on one issue. I have tried to pull this national picture together and hope to have it completed very shortly. I am a bit impatient, as my colleagues beside me know, to present to the Deputy and everybody else the national picture, what it will actually mean and what it will look like for everybody in this country.

I have been around this country since I started making these decisions, and not one person has come near me about this section of the Bill. In fact I have got the opposite response. People have said I am right. They are fed up with waste and people all over the country have said to me that they may not like some of the issues I will have to deal with but that, in fairness, it is tough, somebody has to do it and I should just get on with it.

The Minister is meeting the wrong people. People are not saying that.

I have been to the Deputy's constituency and that of every other Deputy here. There are issues that need to be discussed in a more rational matter, particularly surrounding thermal treatment. There is no question about that, and we will have to do that as we go forward. I served on a local authority so it is not that I do not understand and appreciate the issues that were dealt with. I hold up my hand as I was as guilty as everybody else. I look at my own city where a wetland in the middle of the city turned into a dump that is miles high. Where is the other landfill site? On the beach in Tramore, County Waterford. No wonder we cannot get a blue flag.

How was this allowed to happen for years? Nobody wanted to deal with these issues. Nobody wanted to look at alternatives. I do not want to get into discussing Galway but it is a typical example of attempts by local authorities to undermine the plans that are now in place, of trying to tear them to shreds to make sure nothing happens. Under the proposals of the development plan in Galway there would be no landfill within a kilometre of any house in the whole constituency, which means of course that that there will be no landfill. Since we are not going to have a landfill or incineration in Galway, what are they going to do with all the waste?

They might want to transport it over to Deputy Joe Higgins in Dublin or somewhere else. If that is the proposed solution, then people should be honest enough to get up and say it, but I am not going down that road. There is a solution on the table. What is required is the best international waste hierarchy that I can see. If the size of thermal treatment plants is limited, which they will, to the known waste capacity and known waste that is being generated, it can clearly only generate X amount per annum. It is known that the totality of the waste in the area is X plus Y plus whatever, so it is clearly not possible to incinerate everything because the capacities will not exist to do it.

We know how much we are going to get out of recycling, know what we can do on the prevention side and know what residues will be going to landfill. We know all these figures from the Dutch, the Danes, the Germans, the Austrians and the other great environmentalists that the Americans had to see showing up at international meetings. It drives them cracked when these countries start off on all these issues, but these are the best in the world. They are world leaders on all these issues. All I am trying to say is that we should learn from their mistakes. They have told me that Ireland's waste position is unfortunate but that, fortunately, at least we are probably coming into this when technology has developed so much even in the last few years that we can have the best of all worlds in terms of technology.

After years of nothing happening, or very little, and no tough decisions or choices being taken around the country, we have got the plans in place. They have been there only for the last couple of years. I congratulate councils around the country where a lot of progress is now being made on these plans. I congratulate and salute those involved in the local authorities which are doing that. However, we have no choice but to move this agenda forward. I am not prepared to take the chance because the evidence is there that all of these plans could and would be sundered and torn to shreds in the very near future; already there have been attempts to do it. I am not going to accept that. I am going to implement the regional waste management plans and take political responsibility for it. I will release it soon as one national picture so that the people can understand what is going to happen.

I do not want to waste the committee's time in a general sense although I do appreciate the notes in front of me and going through all of these things. There is a real threat of legal action against Ireland by the EU Commission if we fail to adopt these plans. We are beyond all this pretence with the public who are not stupid. The people know that we are going to have some element of incineration, some landfill, that we are going to try to do more about prevention and that we are all going to recycle.

I want to make one or two observations on what the Minister has said, and I want to put a number of questions to him on what is proposed in the Bill. To respond to his rhetorical question about why we have ended up with a waste crisis, it is because we did not act in time. There is no point looking at local authorities and asking why they did not stop people bringing certain material, and builders bringing rubble, into landfill. Until Deputy Howlin brought in the Waste Management Act 1996 we did not have waste management legislation. There has been a waste management act in most of the European Union countries since the early 1970s. I remember asking Mr. Haughey on the Order of Business, when he was Taoiseach, about the necessity for bringing in waste management legislation. The perplexity with which he looked at me did not convey the impression that it was a Government priority in the late 1980s.

Looks counted in those days.

Looks were very definite and clear in that case. The do-nothing option was never an option for the Minister because, as he acknowledged at the end of his contribution, the EU is squeezing him because we are not complying with waste plans or what is going into landfill and so on.

He is proposing here to make the drawing up of waste management plans an executive function. If I table a question in the Dáil about a regional waste management plan will the Minister answer it? The making of waste plans is being taken away from elected members at local level. If it is being taken away from elected people at local level will those of us who are elected at national level be enabled to raise it? Where are waste plans going to be made democratically accountable? If they cannot be democratically accountable in the council chamber, are they going to be democratically accountable in the Dáil Chamber? If I ask a question about the Dublin waste management plan will the Minister answer that question?

Second, the making of a waste management plan is being made an executive function. How is that going to work? At the moment it is a reserved function and the manager presents a draft, which in practice is the consultant's report on the regional waste management plan, which goes on public display and there is a period for submissions. It is debated publicly and members of the local authorities hear what the public is saying and they bring it to the council chamber debates. What is the process going to be when it is an executive function? Is there going to be public consultation?

What is the point of it? The person proposing the plan is going to be the person deciding it. That is make believe public consultation.

It is not.

Most executive functions of county managers are now appeallable. An executive decision, for example, on a planning matter can be appealed to An Bord Pleanála. A manager is being given an executive decision making power here which is appeallable nowhere.

Third, what provision is being made to avoid abuse? Deputy Joe Higgins made reference to this being a very lucrative business. I have a very high regard for the trade union managers. In my career as a trade union official I represented them. However, we have had one celebrated case in recent times where the bad apple theory is at work. If one gives county managers exclusively the right to make waste management plans with all that entails in terms of the possible advantages of commercial interests connected with the waste service in a local authority, what protection has the Minister built into this to protect against abuse? The executive function, as I read it here, is not conditioned by reserve powers by the local authority. It is not appellable as a planning decision is; there is no court of appeal here for this executive decision. What is the Minister building into the legislation to prevent abuse or to avoid the advantaging, let us say for example, of particular commercial interests?

The legislation as it stands anticipates that waste management plans are regional and the existing legislation provides that where all of the local authorities in a region do not agree to a waste management plan it can be sorted out. Effectively, the issue can be forced. What would happen in a region where there was an independent county manager who decided not to sign up for a landfill or incinerator and did not agree to it? What happens when the county manager decides not to go along with the regional plan that is proposed and he wants to make his own plan or where, for example, a county manager who is a democrat and decided to consult his council——

They will agree.

They will, yes. Let us say that a county manager agrees to go along with the proposal made by his county and one manager in a region of five or six local authorities decides to go it alone. What can the Minister do then? He now has the power but if it is an executive function the Minister cannot go back to him. The county council, the regional authority cannot come back to him.

We will already have done that. We have agreed on that.

Executive functions are exercisable subject to the Local Government Act 2002. Under section 140 of the Local Government Act 2002, the elected members of a local authority can give a specific direction to a county manager about the exercise of the executive function. For example, if the county manager decides to have a landfilll or is extending the life of the landfill the members of that local authority could give the county manager a direction to close it as they would be entitled to do under section 140. Let us say the members of Fingal County Council decided in the morning to give a direction to the county manager to close Ballealy? Where does that leave the executive function? This is not resolving anything other than removing democratic rights. The Minister is not necessarily going to get the kind of easy streamlined waste management plan he has formed in his head——

We will not get it easily, whatever else happens,

I do not know why the Minister has asked his officials to draw up a national waste management plan when it is as clear as daylight to all of us where he is going and what he is doing——

The Deputy criticised me earlier for not having one. I am going to make it crystal clear.

The Minister does not have one that is debatable and accountable but we know where he stands. I do not know why the Minister is asking his officials to draw up a national waste management plan. It is clear as daylight to all of us what he is doing and where he is going.

The Deputy accused me earlier of not having one.

No, the Minister does not have one that we can debate and is accountable. We know where the Minister stands and fair dues to him. I acknowledge that it is at least better to know where we stand on this issue. With regard to this legislation, I do not believe it has been thought through. If that is the road the Minister is determined to take, then at least we should hear what the implications are and his answers to the questions I have raised.

The committee will suspend until 8.30 p.m. Is that agreed? Agreed.

Sitting suspended at 7.35 p.m. and resumed at 8.30 p.m.

The part of section 140 about which the Deputy asked me, relating to the ability to direct, is already dealt with in the 2001 Act wherein the members cannot direct in a way that would frustrate the plans that would be in place. This is already covered in an Act passed two years ago relating to undermining or frustrating or destroying something that would be deemed necessary to proceed with.

It cannot be used.

No, it cannot. Regarding the role of managers, the fact that we have gone to a regional basis with all of this means that there is a collegiate approach among the managers in the region. That is a good thing. There is no manager acting in his or her own right with regard to this. I know for instance that in the south-eastern authority area, and I presume it is the same in the others, one authority has been nominated as the lead authority. I understand that south Tipperary is the lead authority in that area, collating all of this and leading the process on behalf of the other managers. They then get together and work on things. That provides for a fairly good mechanism. They might not necessarily agree on everything, but they will reach a conclusion. The chances of somebody usurping his or her power in a criminal way seem unlikely. We have, of course, many changes in the law with regard to ethics in public office, which apply to civil servants as much as to politicians. There have been many changes in that area following on the case in the past to which the Deputy alluded.

Regarding the democratic deficits of which the Deputy has spoken, I would prefer if I did not have to take action. I am doing so in an effort to copperfasten what is there so that we can move it on. I do not want us to end up before the European Commission again. We are already hanging on by our fingernails on this issue. We have already seen efforts to undermine this whole process, and I am sure that could happen, and we would have cherry-picking, with a bit of this and a bit of that. No hard choices would be made and the whole thing would fall apart. The business comes together in its totality and has a real prospect of working as such. That is what councillors should look for.

The councillors in all the regional areas know the totality of the waste created and how it can be broken down. In the thermal treatment or incineration process, the plants are now much smaller, with ability to disperse only certain amounts of waste, which we know will not come near disposing of the total volume of waste being created. We have to get up to a figure of 45% or 50% on the recycling side. If we do not, we will still have big problems.

In fairness to most local authorities, that agenda is being driven. As I said recently in response to parliamentary questions, more than one in three houses is now recycling properly - a huge leap in the last two years, and the indications are that a multiplier effect is being achieved, with the move to segregated waste systems into which the public is buying in a big way. Although we have reached the European average in this area, which is a good thing, we are a long way shy of achieving levels further up the scale, the sort being achieved by the leading countries.

There is the question of how it will all work. It will work in the way it does at the moment. Anyone who suggests, for instance, that the local managers will ride roughshod over everybody is wrong. That will not happen. I have no doubt that there will be serious discussion on these issues at council level. Councils will make proposals and suggestions which will be considered and there will be a lot of public consultation. There is no question about that. I strongly advise all concerned, particularly managers, that we explain in far greater detail what it is we are doing, what are the real impact and effect, what are the causes and what the outcome can be as opposed to a lot of the information which is out there; I will not put it all down to misinformation but certainlly a lot of it is misunderstood on a range of fronts. That is largely the position.

Will the waste management plans be overseen by the House?

These were functions of the local authorities. The Deputy knows that. Personally I do not mind. In terms of overall policy, I will take responsibility as heretofore but I am not going to promote the House as a superior authority to local authorities.

The Deputy knows that I have no difficulty answering these questions. I do not know if we will make a seismic shift in how Ministers answer questions or in what they should or should not be answering. That is another day's work. I have been pretty forthright in the House and everywhere else on these issues.

In the interests of keeping the record straight, the Minister stated before we adjourned that nothing had happened until managers got the authority to adopt the waste management plans. That is not correct in Galway city. A lot had happened in our case before the managers ever got that authority. We had embarked on a major recycling, reuse and composting system. We are now producing almost top grade compost from all the kitchen waste of Galway city. We hope shortly to do the same for the county. To say that nothing happened is therefore a statement I would like to correct.

I presume the Minister intends to ignore the tabled amendment, and I presume it will be put to a vote. However, I doubt it will be pressed. I am sorry that Deputy Grealish is not here because I meant to say the following in his presence rather than his absence. He was a candidate alongside myself in the last general election.

Would the Deputy like to wait until he returns?

No because I do not want to delay matters. I will say it again when he comes back if he wants me to. He is a good friend but he based his entire campaign, just as I did myself, on being anti-incineration. I hope he will support our amendment when it goes to the vote because he is in this House mainly to represent the interests of the anti-incineration people in west Galway, and particularly in Galway city where he lives because that is the proposed site for the incinerator. He cannot have it both ways. He cannot base his election campaign on one view and express a different one here. I intend to be consistent with my stance during the general election. I will support the amendment for all the reasons we have stated.

I want to be careful in what I say now. I am not critical in any way of city and county managers in the action they take but I expressed the opinion on the last day that when city and county managers meet with the Minister and the Minister asks them to jump, they generally ask how high? I do not want this repeated. I was here last Friday morning dealing with Committee Stage of the Bill and I attended a function in the college for Nelson Mandela later in the evening during which my county manager was able to tell me I was very critical of him in the environment committee. He did not read that on the Internet so I do not know where he got the information. That disappointed me very much because I was not critical of my county manager. I told him I would send him the Official Report of the Committee Stage debate so that he would know exactly what I said. I am critical of that authority——

Surely that means he is taking an interest in our work.

No. It means that somebody from here rang him to tell him what I said. I very much resent that, regardless of whether it was a member or somebody else. It came from this committee and I regret that would happen because I am confident in what I say in this committee. I am representing the best interests of democracy, my city and county, and the area I represent. I know we are critical of managers but giving managers the authority to adopt, amend or correct waste management plans is not the right direction in which to go. I will oppose that amendment if it is put to a vote.

I was discussing with Deputy Sargent whether it was worthwhile bothering with this. The Minister reminds me of fellows who were in school years ago. I was not big then either; I am only a wee fellow.

Same as myself. We are about the same size. We had to fight hard to play hard.

A big fellow would come over, lift the ball and walk away. I would run after him and tackle him but it was futile.

Did you get him?

Several times, and I got him put off too if there was a referee present but there is no referee here. Because the referees are scattered across the Twenty-six Counties in terms of the electorate, they are not available to hold people to account on single issues like this one. It could be argued that is good for democracy. Perhaps that is what we should be discussing. If I moved an amendment on the issue of democracy, would that allow us to debate whether we should go back to the ancient Greek model in terms of trying to get some accountability and come up with something practical that will work for local areas?

County managers are a rare breed. The overwhelming majority of them are competent, able men and women but they are answerable to nobody. I have raised the issue of lack of accountability several times with the Minister through parliamentary questions and letters. In my own constituency of Louth, the county manager can run riot. I hope somebody tells him that because I will be extremely disappointed if somebody does not. I have told him several times.

A Deputy

It is a "her" now.

Yes, but I used to enjoy holding the former person in that position to account in so far as I could do so.

For the information of the committee, an out of court settlement was made in a case of alleged bullying against the Drogheda borough engineer. Money was brought in, supposedly in the region of €300,000 plus, to settle this case out of court. I want to know from where that money came. The county manager does not need to tell me. I asked the Minister and the Committee of Public Accounts. No matter who I ask I get the same answer - it is not their responsibility.

It could be raised in the estimates process where the Deputy is entitled to——

I am a member of Drogheda Borough Council and he would slip it out there, and it would be the same back-door procedure. Those are some of the gaps in the system. Is it acceptable that an unelected person, who is not accountable to the people every three or five years, is not accountable? How do people feel about that? Does the Minister believe it is a good system when there is a total lack of accountability? I agree with Deputy Gilmore's point about raising that aspect with the Minister. The Minister does not have any responsibility for it. He may say he will answer questions but he has no role. It is a pity there is not an amendment from the Minister dealing with that issue because it would go some towards resolving it.

On the issue of incineration, which is the nub of this part of the Bill, I am amazed that the Minister meets people who tell him he is doing great work and that he should keep it up.

People accept that there is a serious problem.

I have to go into the council chamber in Louth to find them, and they are on the opposite benches. There is none of them on the benches on our side. Where are they?

I walked out of the Dáil today and I was flabbergasted when two reasonably middle aged ladies came over to me and asked me if I was the Minister for the Environment. I thought I was going to get an earful. They wanted to talk to me about the bin charges. I got myself ready for what they had to say but they told me I was right to make sure people paid their bin charges because their neighbours did not. They were complimenting me.

That was not fair. The Minister should have corrected them. He should have told them their neighbours have already paid several times over for their bin collections. The Minister knows the history in that regard. It is a pity he did not clarify that for them.

It is only anecdotal, Deputy.

The other is anecdotal as well but I do not know if that is the case. We know the Minister's view on incineration, which is unfortunate, but if we continue to chip away at him he might experience a Pauline conversion.

I intend to be brief. I resent the Minister talking about pretence if he was trying to smear anybody who is genuinely trying to put forward an alternative solution. The question is whether anybody is listening. The Minister said regions are the way to go. Nobody on this side said regions are not the way to go. What I said was that local authority functional areas should have, within their region, a responsibility for which they are accountable. They are elected for a functional area and that functional area has been let off the hook because of the 1996 Waste Management Act, which states they can have a regional plan in lieu of a local authority functional area regional plan.

Deputy Howlin was right.

The Minister and Deputy Howlin may agree on that but I believe it was a weakness because there is now no accountability in regard to import or export of waste from local authority functional areas.

Of course there is.

I am sorry, but there is no accountability. The Minister can talk about it being on a plan and the plan coming from M.C. O'Sullivan or somebody else——

No. Licences and everything else are required from local authorities.

The actual area is subsumed into a region and in many ways the local authority members are floundering because they are dealing with a region containing areas for which they do not have responsibility, along with their own. That is a weakness. The agenda has been set by the consultants who come in and provide a template, which is similar to the templates in other areas also. There is no doubt that was the start of the rot when it came to local accountability and, unfortunately, we are accelerating the rot here by taking away the remaining democratic accountability that was part of local authority operations to date. The Minister said he had examined best practice in other countries and he mentioned Belgium and Denmark which not surprisingly are countries that are locked into a system of incineration. Therefore, why would they not shout from the rafters that it is the bee's knees. They are locked into a system——

They are trying to get modern technology such as we will have. They want to be as good as us.

I did not barrack the Minister. When he gives examples of countries pursuing incineration, those are the countries he is considering. The Minister and I know well that Indaver in Belgium——

By way of being helpful, I wish to point out that the western industrialised world has incineration.

It depends on what type of incineration the Minister means. In New Zealand there is hospital incineration, but not incineration of municipal waste which the Minister wants to introduce. There is a big difference. We must be clear when generalising on this matter. Belgium has Indaver, which is a state company. Belgium wanted to clean up its problem industries and it now has an incinerator culture based on Indaver, representatives of which are here trying to sell its system as if it was some spontaneous business initiative. It has a history which needs to be fully articulated for people to appreciate from where it is coming. The Minister has not told us where the ash will go nor is that indicated in the waste management plans.

I expect that waste will be a subject of tribunals in the future in a similar manner to which planning is the subject of them today. The Minister said that local authorities could have done all this, but that is pure nonsense because the local authorities operate within a pricing structure the Government sets. Due to the cheapness of certain materials, recycling is more expensive, a point on which we all agree. Recycling costs money under the current pricing system compared to landfill and incineration, which are highly profitable operations for local authorities in the first instance. That is why they succumbed to temptation in Fingal and elsewhere to take in any kind of waste there was in the area. Every time a load of waste went through the gate, they got hard earned revenue, for which they feel the need due to lack of Government subventions since the abolition of rates in 1977.

Landfill was promoted but at least such operations involve public money. However, we are moving on another step to the introduction of incinerators, which will mean private profiteering as opposed to public profiteering which is even less accountable. That is the nub of the issue. A financial arrangement as much as a waste issue is being dealt with here. It will be a subject of questions as to why the Government organises that landfill and incineration are far more profitable than recycling. This comes down to the way the economic system is organised. Ultimately, we are talking about democratic accountability being removed and we are storing up rather than solving problems. The Minister must take account of that.

We are reaching the conclusion of this debate, but there is no meeting of minds on it. As the debate was progressing, I tried to think of any executive functions county managers currently have that come remotely close to the kind of executive function the Minister proposes to give them now. I cannot think of any other executive function local authority managers have which they exercise without reference to a policy made by their local authority, the exercise of which is not strictly defined in legislation or which is not appealable. One can consider the range of executive functions city and county managers have. As I mentioned earlier, the decision to grant or refuse a planning permission is subject to the county development plan and is appealable to An Bord Pleanála. A decision to allocate a local authority dwelling must be based on the scheme of letting priorities and is subject to the housing Act. Decisions in relation to the pay and conditions of staff are subject to national agreements made with trade unions and are appealable to the Labour Court or under the conciliation and arbitration schemes. Decisions relating to financial matters are subject to examination by the local government auditor. There is no function other than the one the Minister proposes to give to county managers here which they will be able to exercise without reference to policy made by their elected members, which is not strictly regulated in law, and which is not appealable. This provision gives county managers an absolute power to decide the waste policy of a particular area and, collectively, for the entire country. What is being done here in terms of the change being made in local government law and the power that is being given to local authority managers, as distinct from the elected members, is unprecedented.

Irrespective of what we may think about the waste issue, and much of our discussion has been based on that, this is a step in terms of giving powers to local authority managers which was never given previously. I do not know of any other managers anywhere in the public service who are being given this kind of power to make policy. There is much talk about the health service. We do not give chief executive officers of health boards or whatever will replace them the equivalent power that is being given to local authority managers here. We do not give to chief executive officers of vocational education committees this kind of power in relation to education policy in their areas. This transfer of an absolute power is unprecedented.

The Minister confirmed earlier that he has no difficulty answering questions, but it is clear that he will not answer questions. There is no line of accountability and no court of appeal for the exercise of this power. If somebody does not like a decision that is made by a county manager, there is nowhere that person can go. He or she cannot even appeal it to the Minister. There was a time when county managers' decisions could at least be appealed to the Minister but there is no power of appeal here. This represents absolute power being given to a layer of public servants which is unprecedented. This should not be granted either on waste issue grounds or on local democracy grounds. We are fundamentally at odds on this question.

In relation to the Deputy's last point, in case anybody thinks they are being given carte blanche, what will be included in these plans is set out in specific terms in the Waste Management Act. County managers cannot decide that. What is to be included is set down in law in the 1996 Act. I intend to adhere to that Act and there is no question but that county managers will also certainly adhere to it. We have come to the end of this discussion which has been a good one. Members of An Bord Pleanála are unelected——

That is an appeal system.

——and they make absolute decisions. There are members on boards throughout the country who were not elected who make absolute decisions and they are not answerable to any Minister.

They are not elected.

Is the amendment being pressed.

Amendment put.
The Committee divided: Tá, 4; Níl, 7.

  • Allen, Bernard.
  • Gilmore, Eamon.
  • McCormack, Padraig.
  • Sargent, Trevor.

Níl

  • Cregan, John.
  • Cullen, Martin.
  • Curran, John.
  • Grealish, Noel.
  • McEllistrim, Tom.
  • Moloney, John.
  • Power, Seán.

I move amendment No. 146:

In page 62, line 18, to delete "an executive" and substitute "a reserved".

Amendment put and declared lost.

I move amendment No. 147:

In page 62, line 18, to delete "function."." and substitute the following:

"function.',

and

(c) by inserting the following subsection after subsection (10C) (inserted by the Act of 2001):

'(10D) (a) In performing their functions under the Planning and Development Acts 2000 to 2002, and, in particular, their functions under Part III and sections 175 and 179 of the Planning and Development Act 2000, planning authorities and An Bord Pleanála shall ensure that such measures as are reasonably necessary are taken to secure appropriate provision for the management of waste (and, in particular, recyclable materials) within developments, including the provision of facilities for the storage, separation and collection of such waste (and, in particular, such materials) and the preparation by the appropriate persons of suitable plans for the operation of such facilities.

(b) The Minister may issue guidelines as to the steps that may be taken to comply with this subsection.’.”.

I hope committee members will be in favour of this amendment. I was conscious of the need to ensure that the implications of modern waste management practices are taken into account when new developments are being proposed. It is especially important that provision is made for the segregation and storage of different waste streams to support the overall national recycling effort. I, therefore, proposed in this amendment that local authorities, both in proposing developments of their own and in considering planning applications for private developments, as well as An Bord Pleanála where relevant, should ensure that appropriate provisions in this regard are made. The amendment also provides for the issuing of guidelines in relation to the steps that may be taken to comply with this.

In some developments, such as apartment blocks, where segregated waste will result in the use of three or four bins, lorries have difficulties with access and egress. In view of this, good practice provisions should apply to housing and apartment developments. The matter was brought to my attention by a couple of local councillors and I considered it to be a good idea.

The amendment is worth supporting. It is reasonable to expect developers to include at planning permission stage measures to ensure that there is provision made in housing developments for access to wheeliebins. This is especially relevant for apartment blocks.

I am not sure if the Minister has had the opportunity to consider the Canadian example at Gwelth, which has reduced the number of bins to two, one wet and one dry. The waste is segregated elsewhere because it is not expected that the business person or resident is able to differentiate between different types of plastic or material. It then becomes a matter of resegregating supposedly segregated waste and, in the process, losing valuable material.

I do not agree with that suggestion. I have no doubt that householders can segregate to the desired levels. They are anxious to become involved, especially as they consider it an incentive in terms of avoiding incineration. For example, in Galway city, there can be as many as 14 strands of segregation. There is no reason three strands cannot be attained, namely, composting, necessary landfill and other recycling. This should be the minimum in terms of household requirements.

Amendment agreed to.
Amendment No. 148 not moved.
Question, "That section 19, as amended, stand part of the Bill", put and agreed to.
Sections 20 and 21 agreed to.
SECTION 22.

Amendments Nos. 149, 150 and 153 are related and may be considered together by agreement.

I move amendment No. 149:

In page 63, to delete lines 15 to 18.

This is a critical provision. The Minister proposes to introduce a legal provision that a local authority may refuse to collect waste from a person who has not paid the charge which is made under section 75. He is seeking to overturn a decision of the courts which I understand in the O'Connell case in Cork found that while the local authority had every right to pursue, as a simple debt, a charge owed to it and to take the defaulter to court in the normal way, it did not have the right to refuse the collection of waste.

The Minister's proposal will give rise to an enormous environmental problem. We will deal in due course with the charge and the level at which it should be set, but from an environmental point of view, this is a disastrous provision. What happens where I pay my charges and my refuse is collected, but my neighbour refuses to pay with the result that his or her refuse is not collected and it mounts up with environmental consequences? The original provisions regarding refuse collection services by urban authorities was introduced in the 19th century as a public health measure to stop the accumulation of uncollected waste in built-up areas with all the consequential hazards, including the attraction of vermin and the danger to public health.

The effect of the Minister's proposal will be to return us to the 19th century, to a situation where there will be uncollected waste accumulating in back gardens and neighbourhoods with all the attendant public health difficulties. Alternatively, it will lead to illegal dumping of waste. During previous industrial disputes where waste was not collected for a number of weeks, collectors charged households to remove accumulated waste which was then dumped on roadsides or such like. Another alternative consequence will be the burning of waste leading, for example, to the burning of plastic material in domestic fireplaces. Many back gardens will use incineration. Indeed, garden waste incinerators are already on sale in garden centres. I have seen advertisements like "Burn your own waste" at the gate of garden centres. You buy one of these barrel-type structures, in goes the waste in the back garden and up it burns. That is what will happen with waste.

I am not arguing this issue from the point of view of the waste charge and I am not arguing it from the point of view of people who have refused to pay their waste charges as a protest or from the point of view of the implications of this and of how they will respond to it. I am arguing this from the point of view of its workability. This is a disastrous provision. In urban areas the refusal to collect waste will result in bigger environmental problems than those to which the whole waste management legislation is designed to attend. It will give rise to uncollected waste which will give rise to health problems. It will give rise to illegal burning of waste in private fireplaces and in back garden burners and to illegal dumping of waste in many areas.

The Minister clearly has a problem with the difficulty, as he sees it, of people who have not paid their waste charges. He talked about the two women he met earlier who were encouraging him to deal with the defaulters. They were probably constituents of Deputy Higgins. If he wants to deal with defaulters, there are other ways of doing so. Teeing up a situation which will add to the waste problem is not advisable and it will give rise to huge problems.

I must hand it to the Minister. If he maintains this provision, he will subvert over a century of municipal provision and function in this country and in these islands. It was a huge step forward for civilisation in urban areas when there was a supply of clean water, there was sanitation provided and there was organised refuse collection. They became some of the fundamentals of local authorities as they came into existence. They were crucial functions for the ordering of urban society funded and paid for by the taxation of working people. The Minister is now proposing to attempt to subvert all that and he is bringing in this proposal because he believes he will be able to intimidate those who are opposed to the local taxation by another name in the form of refuse charges on householders or the bin tax, as it is more accurately called.

He will attempt to claim that it is an environmental measure. The trite argument in favour of charging householders for these services is that it is in the interest of the environment. This is palpably false. According to the last national audit of the Environmental Protection Agency in 1998, householders accounted for 1.5% of what went to landfill. Those are the figures.

The figure was 13% in 1998, not 1.5%. The Deputy can read it. It was 13%, just so that the Deputy does not quote incorrect information.

I will double check my sources. We can agree, in any case, that it was a small minority of what was going to landfill in 1998. Much of what the householder sent to landfill in 1998 need not have gone to landfill; it could have gone to recycling. It need not have gone anywhere by virtue of not having come into people's houses in the first instance if successive Governments had taken stronger action, particularly with regard to retail outlets, on the question of packaging, which continues to be a huge problem for householders.

On the first day of this Committee Stage debate, we spoke of the ongoing phenomenon of having polystyrene trays under a couple of sausages or a doughnut or two wrapped in plastic still featuring on the shelves of supermarkets.

I shall deal with that shortly.

It is happening.

I agree.

It should have been stopped. The householder can certainly avoid buying the doughnuts, and even the few sausages, in polystyrene trays, but there is a lot of other material they bring home which is unnecessary packaging. I will not go through the point which was made adequately on Thursday. I hope the Minister gets a opportunity to read the Official Report. His officials will brief him on it in any case, but Deputies made considerable reference to the fact that householders must get their milk in cartons which cannot be recycled, for example. All of that could have been provided for which would have dramatically increased the amount of material going into households and therefore the amount of material which must go out of households.

Therefore to label a householder as a polluter is just a dishonest slogan of the EU and others in pursuit of their obsession to charge householders and of course they also want to privatise the service. The reality is that householders are waste receivers, not waste creators.

The imposition of a charge is not an environmental provision. It is a provision of local taxation. That really is——

It is in Irish law.

It is a provision of local taxation which is already charged at a rate of €300 or €400 per annum in some local areas. The Minister, working out his own criteria, will bring it up to €500, €600 or €700.

Deputy Gilmore made the argument which he pulled out. Deputy Higgins makes other arguments.

We do know the agenda. The agenda is as follows. The Minister will try to bed down the bin tax, particularly in the capital, and then will add water charges which senior people in his Department and the Department of Finance want to introduce. Before you know it, there will be a regime of local taxation of up to €1,000 per annum on every householder and family before an appreciable amount of time. That is the agenda.

If the householder is involved in a boycott of the charge, this crude measure - which I hope the Minister, on reflection, might still withdraw - of giving the local authorities the power to leave the bins on the side of the street is to try to break the resolve of those compliant taxpayers who are funding the bulk of the taxation in the State but who will not tolerate a parallel tier of local taxation, which is really what is involved here. As a representative of those taxpayers, I can tell the Minister there will be no going back, as far as they are concerned, to the days of the 1970s and 1980s, when they were the fall guys and they paid for everything, and then we had the golden circle stashing their secret funding in off-shore accounts and so forth. They see what is coming down the line. This provision is the first hammer blow to try to put that parallel tier of taxation into effect. It will not wash. The Minister will cause immense problems if he does this. Deputy Gilmore referred to burning. The Minister should be aware of this because the local authority in his area, together with five other local authorities in the south-east, conducted a survey recently and found that 35% of people were burning rubbish in their back gardens.

It did not say that. It was not back gardens. It was farms and everywhere else.

Yes, it could have been anywhere, even fireplaces. There were uncontrolled emissions into the environment carrying many undoubtedly dangerous chemicals and substances which we object to in municipal incineration.

The increase in charges the Minister wants will add to this phenomenon. It is therefore a thoroughly retrograde step. Council management will crow that less refuse is being collected. This will be because it will be burned. Emissions will go into the environment in invisible ways and do more damage. The measure the Minister wants to implement is hugely counterproductive.

Perhaps the Deputy could conclude as a number of others wish to speak to the amendment.

Perhaps the Chairman would allow me two minutes because, on this issue, I bring the feelings of a wide tranche of PAYE workers and contributory pensioners. I would like the Minister to be aware of this because, unfortunately, it appears that the backbenchers of the Government parties are not relaying the feelings of PAYE taxpayers and working class communities on this issue.

That is because they pay their bin charges. The Deputy is speaking for a certain quota of voters.

The Deputy has colleagues in Dublin.

Deputy Joe Higgins has been speaking for ten minutes. Others wish to contribute.

The Deputy does not speak for all PAYE workers.

Perhaps the observers in the gallery would keep quiet for one minute and I will conclude.

The Minister will be resisted in his actions by campaigns in the community of PAYE workers and people power. The measure will become endlessly controversial and will not succeed. Perhaps Deputy Cregan should think again about why this measure will be resisted. In a regime where the Minister's colleague, the Minister for Finance, has made provision this year alone to hand back to the corporate sector just under €1 billion in tax breaks while also putting in place a parallel tier of local taxation, the Minister will reap huge anger. I appeal to the Minister, even at this stage, to consider withdrawing this provision because, even if he forces it through the Houses of the Oireachtas, it will have to be done away with in any event.

I do not share all Deputy Joe Higgins's views but I respect the position he adopts on this issue. There are relevant questions and he has asked one of them.

In the case of our local authority, more than 80% of people pay refuse charges. I do not know if that figure will be maintained if charges rise to the level where the real cost of disposing of refuse must be paid for. It will not affect me because my neighbours on both sides pay their refuse charges and, I presume, will continue to do so and will not pile up their refuse in their back gardens.

What will happen to the 15% to 20% who do not pay their charges in Galway? How will the proposal in this legislation be implemented? If their bins are not collected, they will leave them in their back gardens and may repeat the exercise the following week and, before long, plastic bags of rubbish will appear and dogs will tear them apart. How will this be dealt with?

I wish to say a word for bin men. They have generally built up a good relationship with neighbours. I do not know if their union will allow them to implement the provision in the Bill. How will they be asked to collect, for example, my rubbish and that of my neighbour's but not that of the next house down? Will the bin men be able to do that? Is the Minister placing responsibility on local authority workers who have been diligent in collecting refuse to collect the refuse of A and B and not that of C and Z? It is not practical.

I do not have the same passionate concern on the matter as Deputy Joe Higgins, but this is bad legislation in practical terms. Will the Minister explain how it will be implemented?

This measure is obviously a reaction to the large numbers of people who have determined that they will not pay and the fact that some local authorities had bargained on receiving a higher amount in refuse charges than they did. Does the Minister not think he has gone over the top in his gung-ho attitude? There is no requirement for local authorities to implement a comprehensive polluter pays approach. There is a simple flat rate in most local authorities.

That will be changed to charging by weight.

Does the Minister not agree that this is the equivalent of giving people a kick in the teeth, telling them it was not really meant and that one will be decent afterwards? Would it not be better to put in place the proportionate system which imposes the proportionate burden on those who pollute the most or put out the most waste, if that is the way it is to be measured, and ensures that people do not pay a flat rate, which is the opposite of the Minister's stated position of trying to give an incentive to recycle and reduce waste in the first place? By not addressing this issue, the Minister is generating the type of hostility which means the environment will suffer most because people will make their feelings known

Has the Minister considered the policing of the measure because it sounds like an army of litter wardens would be needed? The increased burden of work that is implied and will be required to implement this is a recipe for anarchy on the streets. It is badly thought out and the Minister is placing the cart before the horse.

Another core function of local authorities is being taken away from them. As that has been dealt with already, I will move on to the consequences of that removal, namely, the public health issue. If these bins are not collected, they will be left. We know the general contents of these bins. After a few weeks, especially coming into this time of the year, what type of threat will that represent to the public health of people not just in the household in question but the entire street?

The Minister has not left it at that and will introduce a policing function which will force these people to pay. What about ability to pay? What about old age pensioners? This is important because the waiver scheme has effectively been abolished through the privatisation of refuse collection. County managers will say: "This has been privatised, so it is not our function. This is a private matter between the customer and the company. I am not paying money over." That is what they will say. There is no waiver scheme in virtually all the local authority areas which have been privatized.

What about the other type of person who is prevalent in local authority homes, single parents with three young children, maybe two still in nappies? If such a person cannot pay will the Minister put them all in jail? What about the public health risk of a bin sitting on the street?

The waiver scheme is gone and these people cannot get to the recycling centres because they do not have cars. They cannot carry two children and two bags of recyclable material across a city or town to a recycling centre and there is probably no public transport to avail of.

Regarding the waiver, section 35 deals with that. The Deputy is asking questions when the answer is there if he wants to read it. We are trying to use our time as efficiently as we can.

I thank the Chair for that enlightenment and I will look at that. For local authorities to deal with waivers they must have funding. How many people will qualify for waivers? We can have all the sections we want but they will not be effective if we do not have the funding to provide waivers. There may be people on reasonable incomes but for a significant number of people this will not apply.

I thank members for their contributions. This is only restoring what everyone believed the position was anyway. This has been the position. Nothing major has changed; this only changed because someone took a court case and, to everyones surprise, won.

The 1996 Act was very clear.

Everybody understood the position to be as is in this. Also, it seems, with all due respect, that people are differentiating in an amazing way between those who live in an area collected by local authorities and those in more than half of the local authority areas down the country where there are private collections. I see no problems. People are paying their way. Waste is not piling up and if one does not pay ones waste is not collected. There are no health problems and that is the situation in more than half the local authority areas.

Going further, many areas have a tag system. If one does not have a tag on one's bin one's waste is not collected. That is working wonderfully.

They cannot do that, I am sorry.

I am telling the Deputy the position. I did not interrupt him.

When the Minister is finished Deputy Higgins can speak again.

The Minister is wrong.

It is common practice in my county. He is not wrong.

He is wrong.

He is not.

For the benefit of the Deputy, it is the system in Waterford city. It is a tag system and I was caught the other day without a tag, so I could not put my bin out.

Is the Minister refusing to pay?

No, I moved house and forgot my tags. I have been listening to accounts of rubbish piling up in the street and other catastrophes and they do not add up. Over half of local authorities have private collections and there are no problems, not a scintilla of a problem. People pay their way and waste is dealt with.

I am trying to drive this in another direction. I should not be surprised by the Green position on this, though if one is an environmentalist this should be right in one's bailiwick.

We have had bank charges and now we have bin charges.

This encourages recycling. I have spoken to people who have said they will not pay €5 or €10 per week and I met one man in Kilkenny who said recycling is great because he is now paying for one bin every three weeks. He recycles the rest and feels it is marvelous as he has cut his waste charges by two-thirds. I did not know him from Adam. I am just recounting what happened.

The Greens should be supporting this.

There should be a flat charge——

No. One council already has a pilot scheme which charges by weight and that is the way to go. I was not going to force something through when I did not have the facilities to do so but this is the way to go.

The overall point is that I am not forcing local authorities to use this power. That is a matter for them.

That is ridiculous.

I have been accused of many things but I am simply making clear that if people do not pay, the local authority is empowered not to collect their waste.

The Minister is like an arms manufacturer who does not want responsibility for what happens down the line.

I am taking responsibility. So that there is no confusion——

The Minister is giving out the weapons.

I stood on platforms in the 1980s when members of other parties were overturning vans and almost killing people——

What party was the Minister in that time?

Which time?

Is the Minister——

Deputy McCormacks question confirms for me his approach to this issue.

The Minister ignored burning.

I will come back to that.

If Deputies want to look at tax charges, one issue I find extraordinary in the charges made against me is that we had one of the highest levels of personal taxation not so long ago, in the 1980s, and phenomenally we have moved to a tax regime of 20% with very high thresholds compared to what we had. When the arguments about double taxation started they began in that context, not the context of the Ireland we live in today. When I stood on platforms I asked people whether, if we got tax down to 20%, we should give that money to local authorities. I got a unanimous yes. Now Deputies want to increase central taxation again and to give more control over our lives to the Department of Finance.

We have got tax down to a very low level, with minimalist charges empowering local authorities to get money in; that was what local government was supposed to be about, though now it seems that is not the case. I am trying to move in that direction and here is an opportunity to do so. If we do not do so, we have a choice. Deputies can put themselves in my position or that of the Minister for Finance and decide to cut money from health or education and make all this free, though one would be breaking the law by doing so. The other option is to increase taxes substantially to do all this. We would be taking money out of the local system and giving it back to the Department of Finance. That is a bizarre position for someone who believes in local government to adopt.

I believe in local government. We have reached a point where the level of taxation is as low as it will ever go - it is incredibly low. Members may disagree with me, but my view is that the next step is to create a system of real empowerment in local government. The argument that has always been made by councillors, and accepted by everyone, is that unless one has control over finance then one has very little control over anything. That is the nub of the difficulty in local government. When the review of what we are at is over in a years time I hope the many issues will have been discussed in a fair, open and honest way. That is my approach.

I want to deal with the specifics of the two sections we are dealing with, sections 22 and 23. Section 23 provides that waste, when presented for collection, shall bear evidence that the charge has been paid. What is the position of someone who has applied for a waiver? What is presented in that case? Does their bin show up as having not been paid or as having been paid?

That is a matter for the council.

I want to know what the legislation means. It states that waste placed for collection shall bear evidence in such manner as provided for in bye-laws of the payment of any charge made under section 75 in respect of the collection of the waste. The county manager sets a charge.

They are the local authority's bye-laws.

I want to know what the legislation means. What is the position of someone who has applied for a waiver? Do they show they are paid or are they are not paid?

It is up to the local authority.

I want to know what it means.

It means that the local authority can draw up bye-laws to deal with the matter.

You are the Minister who is presenting the legislation.

I am being told that in Fingal County Council they give them out pre-tax. That is a good system which works there.

That is for people who have waivers.

Presumably where a waiver has been decided by the local authority it will show up as having been paid. What is the position of someone who has applied for a waiver. The local authority sends out the demand for the charges in March and one applies for a waiver. I know people in my local authority area who are still waiting for a decision on a waiver application they made two years ago.

What have they done in the meantime?

The waste is being collected under the present system. What will happen under this system? If someone who has made an application for a waiver and a decision is still pending, will the bin be collected?

Of course it will.

Last year my local authority got approximately 7,000 or 8,000 applications for waivers. It has only so many staff who can process these applications. If a local authority gets a huge number of waiver applications, are the bins collected until the waivers are processed?

The local authority will have to sort out that matter.

Has the Minister thought out this?

Of course I have.

What is the answer?

The answer is fairly simple. The Deputy is complaining, on the one hand, that I am taking away powers from local authorities and, when I say it is a matter for local authorities, he is giving out to me that I should tell them what to do. He cannot have it both ways.

Clarify the position.

The position is clear. Deputies are basing this on the presumption that the first thing local authorities will do if a waste charge has not been paid is that they will take people to court. That is the last thing they will do. There will be a great deal of communication between local authorities and individual householders if they are applying for a waiver, or if they have not applied for a waiver and they are not paying their waste charges. A long process will be gone through with individual householders regardless of whether they have applied for waivers and so on.

Will their bins be collected?

It will be a matter for the local authorities.

What does the Minister think? What does the legislation mean?

I am very clear on what the legislation means.

Can the Minister share that information with us?

I expect the local authorities will act in a common sense fashion.

That is not the question.

It is the question.

The question is, will the bins be collected?

If people do not pay their charges after lengthy and due correspondence between local authorities and individuals, and the local authority has satisfied itself that the people at the residence should be paying refuse charges, and they continue not to do so, then their bin will not be collected. I do not think I can be more straightforward than that.

That is not what the legislation says. The legislation the Minister is presenting states that the waste placed for collection shall bear evidence in such a manner or form as is provided for in the bye-laws of the payment of any charge that has been made under section 5 in respect of the collection of the waste. There is some signal on the bin - perhaps a micro chip or a tag - which will indicate the charge is paid. There will be householders who have applied for waivers and are waiting for a decision from the local authority on their waiver application. All I want to know is will their bins be collected?

I know where the Deputy is coming from, I know where he is trying to put me and I will not go there. It is a matter for the local authority.

This is the Committee Stage of a Bill.

The job of those of us on this side of the table - the Minister described himself as a scrum half earlier and he is well protected by a fine team of forwards - is to find out in simple terms what the legislation means.

We will be asked at public meetings.

That is correct. The legislation states that when one puts out a bin, there will be something——

Is the Deputy being serious?

I am being serious. It is not a difficult question. When the charge is due in March, a pensioner on a small occupational pension or whatever might have put in my application for a waiver. This person cannot indicate on the bin that the charge is paid because clearly it is not paid, therefore, there is a danger that the bin will not be collected. If someone has made an application for a waiver, will the bin be collected in the period between the submission of the waiver application and the council's decision on whether to grant the waiver?

That is a matter for the local authority.

I want to know what does the legislation mean?

The Deputy is asking for absolute certainty.

I am asking for clarity.

I have given the Deputy clarity.

County councils make their own bye-laws in this regard.

Local authorities have adopted a myriad of different systems to deal with this issue. They are more than capable of dealing with the issue. I interpret the legislation to mean that people cannot be shut out unless they get a decision on such matters.

Suppose everyone in Deputy Higgins's area applies for a waiver, is the whole system not up in a heap?

That is mischievous.

I am just putting the case.

The majority of people in the Deputy's area pay charges.

(Interruptions).

Over 50% of people in the Deputy's area pay charges.

Who told the Minister that?

These are the figures I have been given.

Suppose they all apply for a waiver.

It means half the people are being subsidised by people who want——

(Interruptions).

Half the people have been subsidising the people who have been supporting the Minister's party and bankrolling them for 30 years.

That is sad. If I need convincing that what I am doing in the Bill is not necessary to deal with waste, I am totally convinced when I come before the committee and hear some of the comments made. That kind of comment convinces me absolutely.

I am telling the Minister what taxpayers feel.

(Interruptions).

The Deputy pretends that Ireland operates as some kind of an island outside the European Union. It does not. European law is quite clear, as is Irish law, introduced in 1996 by my former colleague, the Labour Party Minister for the Environment. It is crystal clear on the issue. If the Minister were in a Government some day, sitting around the table with colleagues, he would have a choice. If he goes down the road of not paying charges, this country will be fined millions of euro for not implementing EU law.

There are alternatives. We believe in subsidiarity.

(Interruptions).

The Minister said nothing about the 37% in his area who are burning waste.

We will adjourn as agreed and meet tomorrow at 4.30 p.m.

Would it be possible to continue for 30 minutes to finish the business?

No. Deputy Sargent indicated that he had to leave just before 10 o'clock and I told him we would finish then, as agreed. It would be unfair to do anything else.

Progress reported; Committee to sit again.
The select committee adjourned at 10 p.m. until 4.30 p.m. on Wednesday, 25 June 2003.