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SECTION 26.
I move amendment No. 106:
In page 30, subsection (1), lines 14 and 15, to delete "as soon as may be after the commencement of this section" and substitute "not later than the date prescribed".
This seems to a fairly small subject in the context of the overall Bill. It requires that a date be fixed rather than when the local authorities get around to it. Is that acceptable to the Minister or do I need to elaborate further?
I will table an amendment on Report Stage to allow a date be prescribed by ministerial regulation if the Deputy withdraws this amendment.
I move amendment No. 107:
In page 30, between lines 21 and 22, to insert the following subsection:
"(2) The provisions of this section dealing with the national hazardous waste management plan to be drawn up by the Agency shall be subject to the same criteria of consultation and accountability as provided in the case of local authorities in section 26 (2), (3) and (4).".
I gather this is covered so the amendment is unnecessary.
I move amendment No. 108:
In page 30, subsection (2), lines 33 to 38, to delete paragraph (b) and substitute the following:
"(b) specify objectives and targets in relation to the recovery and disposal of hazardous waste and ensure that the BATNEEC principle is enforced and that proper environmental management systems are in place;".
This amendment changes the wording in paragraph (b) to make it more explicit and to incorporate the BATNEEC principle. Has the Minister any views on this?
I argue the paragraph the Deputy proposes to delete is better and stronger than that he proposes to insert, and I expect I have an ally in Deputy Sargent. One clause the Deputy proposes to delete from my paragraph contains specific mention of waste prevention or minimisation, which I do not think is his intent. I am advised the principles he wishes to involve, such as BATNEEC and environmental management systems, have not been sufficiently progressed in European terms to have a legal meaning. I can go through the current position of environmental management systems at European and national levels in some detail but I am advised it will be well into next year at the earliest before any such standard is acceptable, understood or has legal meaning.
I move amendment No. 109:
In page 30, subsection (2) (c), lines 40 and 41, to delete "principally" and substitute "to a significant extent".
Section 26 (2) (c) is intended to provide that a hazardous waste plan shall provide, among other things, for the identification and assessment of sites at which waste disposal activities involving hazardous wastes have been carried out. This provision as drafted relates to activities that "principally" involve hazardous waste. My legal advice is that "principally" means the majority of the dumping has been hazardous and since that is too limiting, I want to remove the limitation and extend the scope of the section by replacing that word with "to a significant extent".
I welcome the change because it makes the provision and the safeguards stronger.
I move amendment No. 110:
In page 30, subsection (2) (c), line 44, after "sites", to insert "the measures that have been, and will be put in place to prevent environmental pollution in the interim until final ameliorative measures are achieved,".
This amendment has already been discussed with amendment No. 88.
The Minister indicated he was favourable to including ameliorative measures of some type. How does that stand?
He said he would come back on Report Stage.
Yes, that is what I said on amendment No. 88.
I move amendment No. 111:
In page 30, subsection (2) (b), lines 48 and 49, to delete ", in so far as it is practicable,".
This amendment was already discussed with amendment No. 74, which was accepted.
I also accept this amendment as I indicated earlier.
Amendments Nos. 111a and 112a are related and may be taken together. Is that agreed? Agreed.
I move amendment No. 111a:
In page 30, subsection (2) (d), line 49, after "principle" to insert "and also having regard to the principle of due precaution".
We all accept the precautionary principle. Section 26 (2) (d) refers to the polluter pays principle in the context of hazardous waste management plans but no reference is made to the precautionary principle which is the cornerstone of EU environmental policy, as the Minister knows. It is mentioned under the Environmental Protection Agency Act, 1992, as a principle to which the Environmental Protection Agency must have regard. I suggest that it also be incorporated here.
I am advised that it is not necessary but to put it beyond doubt I am willing to accept amendment No. 112a. It seems preferable to amendment No. 111a, which I ask the Deputy to withdraw.
I move amendment No. 112:
In page 30, subsection (2) (d), after line 49, to insert the following:
"(e) having regard to section 22 (10), and in making or reviewing a hazardous waste plan, the Agency shall have regard to the proper planning and development of the nation and each planning authority's functional area, and shall for this purpose have regard to the provisions of the planning authority's development plan, the local authority's waste management plan and any special amenity order made under the Act of 1963;".
This is to bring the hazardous waste plan into line with other such plans. Section 22 (10) provides that a waste plan would take into account other aspects of the local authority function, such as the development of the area. Can the Minister say if this can be explicitly stated in the case of hazardous waste plans or is it already the case by implication? I put down the amendment because it was not clear to me that the hazardous waste plan would have regard to proper general planning and development whether nationally or within the local authority's functional area, which one hopes it will be possible to establish now. Special amenity orders are also mentioned. I wanted to be sure that the Minister was clearly giving the message that the hazardous waste plan would be considered in the context of other matters associated with planning.
As has already been said at this committee, a difficulty experienced with the Environmental Protection Agency is that a hazardous waste facility is dealt with at different levels. Planning covers the structure and physical aspect of the development while, at a separate forum the Environmental Protection Agency, the possible negative ongoing effects are considered. This has been an unfortunate separation of aspects of developing a facility and I hope the Minister will reflect on this. This amendment is one way to ensure we do not look at hazardous waste plan development without taking into account the various aspects of planning and development in an area.
This concerns the hobbyhorse of division or responsibility nationally and locally. There is confusion in the text the Deputy wishes to add but I will address the principle of what he wishes to do, which I think can best be done locally — it would be impossible to do nationally. I do not think the agency, in a national plan, can have regard to the specifications or requirements of a local development plan which is what is at issue.
I suggest that already each local authority is required under section 22 (10), in making its local waste management plan, to have regard to the proper planning and development of its area, the local development plan and any relevant special amenity area order. The agency is required to carry out its function to keep itself informed of the objectives and functions of public authorities which have a bearing on matters with which the agency is concerned — that is, under section 52 of the Environmental Protection Agency Act, 1992, under which it was established.
It would be difficult for the agency even to interpret what the Deputy wants it to do here. The amendment says:
. . . in making or reviewing a hazardous waste plan, the Agency shall have regard to the proper planning and development of the nation . . .
This is too vague to make it a statutory requirement. I think the objective is covered at local level where it is meaningful and on that basis I ask him not to press the amendment.
I agree there is not a national development plan in the same way as there is a local authority development plan but is it possible, with a little drafting skill, to take into account the worry at local authority level that the development plan in the area can somehow be superseded or set aside in the national interest. This was encountered in the Loran C appeal case. One of the reasons put forward that it should be built was the national interest, although Clare County Council decided it was not a good reason. Can the Minister give an assurance that a hazardous waste plan will not supersede a local authority plan for its functional area?
A similar situation arose in Derry with regard to a proposed incinerator. It gets away from the sense of local responsibility we should try to enhance regarding waste. I appreciate a question of balance arises and a lowest effective level is hopefully the way to describe it. However, some assurance should be included. The Minister said it is covered but I am not clear whether that is the case.
The Deputy is making too much of the national hazardous waste plan. It is a framework in the form of a set of regulations — guidelines almost. It is not a specific model. The local hazardous waste plan, which will arise subsequently, will have a guide for all the issues mentioned by the Deputy. It would place an impossible burden on the framers of the national hazardous waste plan, that is, the agency, to have regard to, as the Deputy states in his amendment, the provisions of the planning authority's development plan. This would involve every planning authority in the country. It would be impossible, in addition to the more esoteric notion of the proper planning of the nation. The structure and balances required by the Deputy are explicit in the provisions already included. The amendment would cause utter confusion. It would be impossible for the agency to interpret or act on this requirement.
The Minister said the matter was already explicit. Could he give more information in that regard?
It is up to individual local authorities to have regard to their local areas. How can a national hazardous waste plan have regard to the planning requirements of a county except as far as that county is concerned? It is meaningless because that county will be covered by its local hazardous waste plan in due course anyway. Does the Deputy want an extraordinarily elaborate national plan which is a collection of subsets of local plans or does he want a general framework, as I am suggesting, with a specific tailor made plan to be drawn up locally?
I move amendment No. 112a:
In page 31, subsection (2), before line 1, to insert the following:
"(e) have regard to the need for precaution in relation to the potentially harmful effect of emissions, where there are, in the opinion of the Agency, reasonable grounds for believing that such emissions could cause significant environmental pollution;”.
Amendment No. 114 is an alternative to amendment No. 113 and both may be discussed together. Is that agreed? Agreed.
I move amendment No. 113:
In page 31, subsection (3), lines 12 and 13, to delete "from time to time as it thinks appropriate review" and substitute "review from time to time but at least every three years".
I have a difficulty with such phrases as "where appropriate", "in the opinion of the agency", "where practicable or desirable". The parliamentary draftsman does not have such a difficulty because these terms are used all the time. Although, apparently, they are strictly defined in legal terms, I find them vague and woolly and we must be more specific in this case.
There are references later in the Bill to reviews of the plan, etc. I am not sure if this is already covered but we must set some standard. A statement regarding how often we want a review must be included. If this was done, it would have a number of effects. For example, we are discussing hazardous waste and it would help public confidence if the public knew the operations will be reviewed — they will be constantly monitored — at least every three years.
If the operations were reviewed every three years, it could be reasonably argued that changes in technology which might arise and which render the process safer could be introduced or be required to be introduced. A specific timescale under which these matters must be reviewed would lead to greater public confidence and would probably lessen opposition to such facilities.
The Minister has two choices. He can accept the amendments or reject both of them.
I have not said anything.
Depending on the Minister's reply, I thought the Deputy's views might be superfluous. I will call you next if you wish.
Thank you.
The amendment would ensure the hazardous waste management plan — we are being economic with waste today — is reviewed every three or five years, depending on the amendment. I am prepared to accept the principle of review. If both Deputies withdraw their amendments, I will deal with the matter on Report Stage, probably along the lines of Deputy Sargent's amendment involving a five year review period.
Is that agreed?
Minimisation in waste need not necessarily involve minimisation of Deputies' participation.
We have a time problem. The Deputy is looking a gift horse in the mouth.
I am accepting the Deputy's amendment.
I am delighted to hear that but I would like an opportunity to express my exhilaration.
Amendment No. 115 was already discussed with amendment No. 93.
Amendment No. 116 was discussed with amendment No. 93. I presume it is also withdrawn.
No. It is not exactly the same. We are discussing a hazardous waste plan versus a waste plan which it is claimed is not hazardous. I ask the Minister to reflect on it on that basis——
What amendment are we discussing?
I think I have been shunted on to amendment No. 116.
We dealt with amendment No. 115. This amendment was already discussed.
We discussed it in the context of a waste plan which is not considered hazardous.
It is normal procedure to allow no further discussion and to put the question.
I appreciate that but I would argue that the normal procedure does not cover the detail.
It does.
I move amendment No. 116:
In page 31, subsection (4) (a), line 18, to delete "newspaper" and substitute "newspapers in a manner prescribed according to regulations stating where to publish, how often, layout and size of notice."
There is a difference between a hazardous waste plan and a waste plan. The Chairman may argue the point but legally there is a difference. Is it not fair to allow people to know the position, particularly in relation to a hazardous waste plan which will be of significant interest to people? Is this matter already covered by regulations?
I will allow a brief reply but this amendment was already discussed.
We discussed this matter earlier. Amendment No. 115 would require that at least two newspapers are used to give public notice. I outlined my views earlier and I again reject the amendment. Adequate notice is implicit.
Is the Minister also rejecting amendment No. 116?
Yes, I oppose the amendment.
I move amendment No. 117:
In page 31, subsection (5), lines 45 to 47, to delete "and in so far as it is considered by that Minister of the Government, local authority or other public authority to be appropriate to do so".
This part of the Bill is confusing. It could be used as an opt out clause and I do not understand why it is included. If it stands up, I do not understand why it states the Minister, the local authority or the public authority can get around it. Why is it included? Its deletion would strengthen the section and it could not be abused at a later stage.
I cannot accept the amendment. Its effect would be to transform the recommendations of the agency into obligations to be met by other public authorities.
I understand the underlying intent of the amendment and I appreciate Deputy Ryan's comments. I would expect public authorities, which obviously have a function in relation to environmental protection, to take great pains to comply as far as possible with the recommendations contained in the agency's hazardous waste management plan. This is very much in sync with the debate we just had. It would not be appropriate for the agency to set in stone recommendations that were binding on the local authority. The local authorities, by their democratic nature, are drafting their own local plans. While they will be mindful of it and it will lay heavy on their deliberation, ultimately they should not be bound by the national plan. There should be some degree of local flexibility for the elected members to make a decision.
Amendments Nos. 119 and 120 are related and will be taken together by agreement.
I move amendment No. 119:
In page 32, subsection (9) (a), line 26, after “public” to insert “at a cost not exceeding the reasonable cost of making a copy”.
Many people have concerns in this area. Information can be theoretically available but be published in a very up market format and carry a prohibitive charge. This has the effect of denying information that might otherwise be available. It is arguable that people can go to public libraries or elsewhere but a number of people interested in a plan which may have a significant effect live in rural areas would not have access to a copy. It is important to include this safeguard so there would not be, perhaps unwittingly, a large expense associated with acquiring the information needed to engage in the appropriate public consultation envisaged. A plan of that scale is likely to be quite detailed and it is not as simple as looking at a planning permission. This could be a reasonably large document and there should be some recognition of the concept of minimising the cost.
On a point of order, I do not see much connection between amendments Nos. 119 and 120.
I am going by the running order but I was just reading the amendments and I think the Deputy is correct. We will take them separately.
Amendment No. 119 represents a very reasonable proposal and I will accept it.
I move amendment No. 120:
In page 32, before section 27, but in Part II, to insert the following new section:
"27.—(1) Where the Agency proposes to make under section 26 (1) of this Act a hazardous waste management plan or to vary an existing plan under section 26 (3) the Agency shall cause to be published in all national newspapers a notice of the proposal to make, vary or replace, as the case may be, the plan and shall submit a copy of the proposed plan or, as the case may be, the proposed variation of the plan to the Minister. Copies of the proposal shall also be made available to the general public at the offices of the Agency or the relevant local authority or local authorities.
(2) A notice under subsection (1) shall state that
(a) a copy of the proposed plan or, as the case may be, the proposed variation of the plan may—
(i) be inspected at a specified place and at specified times during a specified period, being a period of not less than 2 months from the time when the proposed plan or variation is deposited for inspection (and the proposed plan or variation shall be so deposited and made available for such inspection accordingly), and
(ii) be purchased from the Agency (and the proposed plan or variation shall be made available for such purchase accordingly (at a cost not exceeding the reasonable cost of making a copy)),
(b) written representations in relation to the proposed plan or to the proposed variation of the plan made to the Agency within the period aforesaid will be taken into consideration by the Agency before the making of the plan or, as the case may be, the variation of the plan (and any such representations shall be taken into consideration accordingly).
(3) The Agency having considered any representations duly made to it as the case may be, within the relevant period under subsection (2), may make, vary or replace the plan (whether in the terms as originally proposed or with such amendments as it or they thinks or think fit).
(4) (a) The Agency which has made a plan under subsection (2) or (3) of section 26 shall furnish to a person on request and, if the Agency so requires, payment to it by the person of such reasonable fee as it may charge, a copy of, or extract from, the plan.
(b) A document purporting to be a copy of a plan or to be an extract from a plan and to be certified by an officer of the Agency as a true copy shall be prima facie evidence of the plan or extract, as the case may be, and it shall not be necessary to prove the signature of such officer or that he or she was in fact such an officer.
(c) Evidence of a plan or of an extract from such plan may be given by production of a copy thereof certified pursuant to to this subsection and it shall not be necessary to produce the plan itself.".
I spoke at length on section 23 which dealt with waste management plans generally. The Minister was not able to facilitate my amendment. I proposed this amendment because I believe very strongly in the right of the public to participate in the drawing up of plans or to at least submit to plans. I am aware that we are talking about a national plan and that the rules and regulations probably will not allow the same in-depth participation. However, local communities should have some say and the public should have some knowledge of what is going on and a chance to make an input. The Bill does not provide an effective means of making such an input. Most of the points I made about consultation and involvement in local democracy in the context of section 23 are relevant here. I ask the Minister to consider this amendment or a suitable process by which the public would have some input into the development of a waste management plan, even on a consultative basis prior to it being drawn up.
I have looked very carefully at this new section and I want to meet the Deputy as far down the road as I can. The placement of a draft hazardous waste management plan in local authority offices may be a useful way of doing it but I believe the rest of the amendment is unnecessary. If the Deputy will withdraw the amendment, I will find a mechanism to achieve that objective. I might be slightly out of order because the amendment would probably be to section 26 rather than section 27. I want to give notice that I might introduce an amendment to section 26 on Report Stage to incorporate the thrust of what Deputy Dempsey requires.
We can always recommit the section.
That is agreed as long as there is a public notification procedure and people know it is there. There is no point sending the plan to the local authority if nobody knows it is there.
I do not envisage an elaborate amendment requiring a newspaper notice to state that the draft plan is available for inspection. We will look at it and come back.
There is no point sending it down if nobody knows about it.
I will look at a mechanism and we will debate it fully on Report Stage when we have a model in front of us.
I move amendment No. 120a:
In page 32, before section 27, but in Part II, to insert the following new section:
"27.—A local authority shall not effect any development or establish any waste management facilities which contravene materially any waste management plan under section 22, whether in its functional area or in the functional area of any other authority.".
There should be some statement in the Bill that local authorities are bound by the same regime as private waste operators and have to be bound by their own waste disposal plan. There are provisions in the planning code which make local authorities subject to their own development plan. A similar provision in this Bill would give private individuals some leverage to ensure that the objectives of the plan are complied with by the local authorities themselves.
The alternative scenario where local authorities are unanswerable and could potentially ignore their own plan would lead to accusations that this is tokenism. It could also lead to many other people riding rough shod over the provisions of the legislation. Most local authorities — probably all of them — would not have that in mind but nevertheless this amendment is necessary to convey a message to private operators that everybody is treated equally. It is important to convey that message because there will be onerous responsibilities on the private sector and we should not give them the opportunity to point fingers and say that local or public authorities are exempt. I ask the Minister to accept this amendment.
I support this amendment. As Deputy Dempsey said it is important that the private sector can see that there is equal treatment. We all have many examples of local authorities not having the same standards for themselves as for others. That message should go out loud and clear.
Deputy Dempsey has crossed that line again. Rather than trying to have equal treatment between a local authority and a commercial operator, the amendment would achieve a uniquely rigid constraint on the local authority that would not apply to a commercial operator. The position after the enactment of this legislation is that if somebody wants to operate a landfill they will be required to apply for planning permission and get a licence from the Environmental Protection Agency. An Bord Pleanála could give them planning permission and the Environmental Protection Agency could give them a licence, irrespective of the constraints of the waste management plan. That is the law. However, the local authority would have uniquely an even more rigid requirement to comply with the waste management plan. It would be unreasonable to impose that particular constraint uniquely on local authorities. It would introduce a section that affects only local authorities and any development they want for waste management facilities, and they could not contravene materially the plan under section 22.
The agency itself is required under section 40 in considering an application for a waste licence to have regard to a waste management plan — that would apply to everybody, local authorities and commercial concerns. For the first time we are taking the licensing regime away from a local authority and giving it to an independent agency, the Environmental Protection Agency, but on a level playing field as between local authority and commercial operator. The local authority is required under section 22 (11) to take such steps as are considered appropriate and necessary to attain the objectives of a waste management plan made by it. Already there is a heavy burden on the local authorities to comply under section 22 (11) and it would not be fair and reasonable to uniquely single them out for a mandatory compliance with the plan that does not apply to others.
I suggest we amend the amendment to cover local authorities and private operators so that everybody would be equal. It is pointless directing people to have waste management plans which can be ignored. An Bord Pleanála can ignore the provisions — as is the case with the planning laws — democratically decided by local public representatives. It is totally wrong; it makes an ass of the law. It means there are non-elected, bureaucratic bodies that have decision making powers that overrule locally, democratically elected public authorities and representatives.
I accept the Minister's argument in that I do not want a more rigid regime for local authorities than for others but my case can be met by amending the amendment to include private operators also. I want equal treatment for all. I want the provisions of a waste management plan to mean something. There will be two bodies in a position to overrule the waste management plan of a local authority which was democratically decided — An Bord Pleanála and the Environmental Protection Agency will be able to ignore or contravene it. That is outrageous. I ask the Minister to accept the amendment, even if amended.
I cannot. There have to be checks and balances. No plan is as rigidly enforced as the Deputy might wish the waste plan to be enforced. The plan is a set of objectives to which people must have regard and which have a strong argument of force. Ultimately, there has to be an individual consideration of each application. It might be unconstitutional to have any other mechanism of dealing with it. Everybody must have the right to have their own application considered in the context of the law and its objectives but on their own merits and with the right of appeal to another authority. That is clearly enshrined in all aspects of planning and environmental protection law. We are doing no more than reflecting the same provisions in the Waste Bill as are reflected in other environmental measures. The notion of drafting a plan that is immutable thereafter and that everybody has to comply with the letter of it would be to take a step that would throw up totally unacceptable results.
We are approaching this from two different directions. The planning law is wrong and what we will be doing with this provision is wrong. A non-elected body can overrule the democratic wishes of local public representatives expressed in the development plan. We talk about rezoning and other problems in Dublin. A paid official of An Bord Pleanála can decide to rezone land or ignore the wishes of a million people if he decides it is a good idea and the local authority and public representatives are wrong.
I accept the Minister's point that each case should be treated individually and there should be an appeal mechanism, but what I suggest here would not exclude that. The decision and the appeal should have to be made in the context of a set of objectives and priorities democratically laid down by the elected members of the local authority. The Minister appears to say that the waste management plan can be drawn up by the local authority, it can specify objectives and then it can be ignored.
That is not what I am saying. They cannot ignore it. The agency itself in determining any application for a licence is bounded by section 40 (2) (b) (i) to have regard to the waste management plan.
That means nothing.
The local authority is required under section 22 (11) to take such steps as are considered appropriate and necessary to obtain the objectives of its waste management plan. Right through the Bill there is a status for the plan. The Deputy wishes to give it a rigid and binding status in a way no other plan would be; no other plan I can think of has the binding nature the Deputy wishes to give the waste management plan. A plan which might be in existence for five years can be reviewed through a specific process. It is overstating the importance of the plan in terms of the specifics to give it the legal binding nature the Deputy requires. If it was to be enacted in that way it would throw up a consequence the Deputy would not support. The Deputy's objective would be best achieved by replicating what is best environmental law already in other areas. I urge the Deputy to withdraw his amendment.
We are not going to reach agreement on this. The only point that might prevent me from calling a vote is that we would not then be able to discuss it again on Report Stage when the Minister has had time to reflect. However, I do not think he will change his position so I will press the amendment.
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Tá |
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Ahern, Noel. Dempsey, Noel. Hyland, Liam. Lawlor, Liam. |
Quill,Máirín. Ryan, Eoin. Sargent, Trevor. |
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Níl |
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Broughan, Tommy. Connaughton, Paul. Creed, Michael. Howlin, Brendan. Kenny, Seán. |
McCormack, Pádraic. Mitchell, Jim. Nealon, Ted. Penrose, William. Ryan, John. Walsh, Eamon. |
