I move amendment No. 172:
In page 53, subsection (1) (a), line 33, after "licence" to insert ", within 60 days,".
We are back to time limits and so on. I will listen to the Minister's observations.
SECTION 40.
We are talking about time frames again which are always difficult. I do not propose to accept this amendment because it would be inappropriate to impose a fixed period of 60 days within which all aspects of a waste licence application must be dealt with by the agency and the licence either granted or refused. Some of these applications will by nature be very technical, difficult and voluminous. It would be impractical to require the agency to fulfil all the necessary procedural and other requirements laid down in Part V of the Bill within the time frame required by the amendment. Under section 42 (12) a month is allowed for the submission of objections from the public. I do not think we should curtail the public involvement in the process. I consider the provision, as it stands, to be more open and practical.
I agree that the provision as it stands is more open; it is completely open ended. I accept that we do not want to curtail the one month period for public objections. We had this experience with An Bord Pleanála and local authorities and we had to revisit regulations relating to planning laws. I accept what the Minister says about 60 days but he should indicate a time frame. It could be 60 days after the one month period which would make it three months in total. It should not be left open ended.
I take on board what the Deputy says and I have a fall back position. If experience shows that once the Bill is enacted and implemented the work of the agency is not as expeditious as we would like, section 45 (2) (i) and (j) of the Bill empower the Minister to make regulations specifying time limits for the completion of any procedural steps in dealing with licence applications and reviews. That power is reserved to the Minister to be used if there is not a speedy decision making process. We need to find out what the norm is before we set it.
Amendment, by leave, withdrawn.
Amendments Nos. 172a and 172c, tabled by Deputy Sargent since the last meeting, relate to the same subject matter as amendment Nos. 7 and 14, respectively, which have already been discussed. To allow further discussion on them now would be likely to lead to repetition in debate. In view of the size of this Bill and the difficulties for Members in tabling their amendments to all parts of the Bill at one time I will allow a limited debate on these amendments. However, Members' contributions on these amendments should be strictly confined to the subject matter of these amendments only. A repetition of the debate on amendments Nos. 7 and 14 should not and cannot arise.
I move amendment No. 172a:
In page 53, subsection (2) (b), between lines 42 and 43, to insert the following:
"(i) the priorities for waste management as defined in the waste hierarchy;".
I will adhere to the Chairman's ruling and I appreciate the slight amount of latitude. The first amendment is fairly explicit. It is important when granting waste licences that everybody involved keeps the hierarchy at the forefront of their minds. It is standard in law but does not seem to be widely practised. It should guide the licensing authority and the applicant in the management of their affairs. It is important to state that in the same way as the Dáil begins with a prayer every day. We should at least aspire to perfection no matter how far short of it we fall. It is much more applicable than the prayer can be at times. I urge the Minister to look on it favourably. Do you want me to talk about the second amendment now?
No, the Minister might reply within the prescribed limits.
We had a long discussion on this earlier. I do not intend to trample the same ground because Deputy Sargent and I do not even agree on the definition of the waste hierarchy, not to mind how it should be transposed into law. The amendment proposes to insert a new subparagraph (i) into section 53 (2) (b) which would have the effect of requiring the agency to have regard to the waste management hierarchy in considering an application for a waste licence. I do not consider it appropriate to make specific reference to the waste hierarchy in the context of applications for waste licences. The objectives set out in the waste hierarchy are general policy objectives which should be taken into account, for example, in the preparation of general policy plans at local or national level and are not appropriate to be considered in the context of a specific licensing regime. I ask the Deputy not to press his amendment.
Amendment, by leave, withdrawn.
I move amendment No. 172b:
In page 54, subsection (4), lines 42 to 47, to delete paragraph (a).
I ask the Minister to have due regard to paragraph (b) which, to him, may be a bald statement but which to me is quite strong. Section 40 (4) states:
The Agency shall not grant a waste licence unless it is satisfied that—
. . . (b) the activity concerned, carried on in accordance with such conditions as may be attached to the licence, will not cause environmental pollution,. . .
There are references to a good defence if something is pleaded, which is already supposed to be in law. Can the Minister advise if it is necessary to have another escape clause or loophole written into section 40 (4) (a), which appears to give people an opportunity to pollute, and yet still have a licence?
I have to disagree with the Deputy. In proposing to delete section 40 (4) (a), he will significantly weaken the section. As drafted, the paragraph prohibits the agency from granting a licence in respect of an activity, the omission from which will contravene a statutory standard. It is right and proper that the agency should not grant a licence to any activity which will result in emissions which contravene a standard. To remove the paragraph would——
Section 40 (4) (b) is relevant.
The amendment proposes to delete section 40 (4) (a).
I am aware of that. The provision of section 40 (4) (b) is stronger.
This is in addition. Why would the Deputy wish to weaken it by removing section 40 (4) (a)?
Section 40 (4) (a) is a loophole, and it allows people to ignore section 40 (4) (b).
Section 40 (4) states that the Agency shall not grant a licence unless it is satisfied that paragraphs (a), (b), (c), (d), (e) apply. It is not either or; the subsection is strengthened by the inclusion of paragraph (a), not weakened.
I agree with the Minister. The amendment would waken the subsection.
I am glad to hear that the Deputy is so confident.
Amendment, by leave, withdrawn.
It is now just past 4.50 p.m., at which time we agreed to consider our work programme. We are to suspend the committee at 5 o'clock. I wish to take the remaining amendments to section 40 — amendments Nos. 172c, which is strictly circumscribed, 173, 173a and 173b. This would take us to the end of section 40, enabling us to commence with section 41 tomorrow. We started today's proceedings on section 29 and have progressed to section 40.
I suggest we finish section 40 and then decide what we will do tomorrow.
Is that agreed? Agreed. I must remind you, Deputy Sargent, that amendment No. 172c is covered by the circumscribed rules which I explained with regard to amendment No. 172a. Amendment No. 172c has been discussed at length with amendment No. 14.
I move amendment No. 172c:
In page 54, subsection (4) (c), line 51, to delete "not entailing excessive costs".
I could nearly write the script with regard to the amendment, so I will withdraw it, even though the Minister is accepting a lower standard in not accepting it.
Amendment, by leave, withdrawn.
I move amendment No. 173:
In page 55, subsection (4), lines 3 to 6, to delete paragraph (d) and substitute the following:
"(d) the applicant, whether an individual, a public authority or a body corporate, is a fit and proper person to hold a waste licence,".
The purpose of the amendment is to ensure that all bodies to which the section applies would have to be fit and proper to hold a waste licence. It is basically concerned with equal treatment between public bodies and private organisations. I ask the Minister to consider the amendment favourably.
I am advised that the effect of the amendment would be to require local authorities to satisfy the agency that they are fit and proper persons to hold a waste licence. This would be incompatible with the legal obligation imposed on local authorities under section 38 to provide and operate facilities for the recovery and disposal of household waste. There is, indeed, an obligation on them to do it.
Surely the Minister is not suggesting that because they have an obligation to do it, they do not have an obligation to do it as fit and proper persons. They obviously must comply with the rules and regulations.
In the first instance, there is the determination of who is a fit and proper person to carry out the activity. There is then a separate criterion for judging the effective doing of the job. We have determined that local authorities are fit and proper persons but it remains to be seen if they do it effectively, and they must comply with the other regimes that are explicit in the Bill to carry on the job effectively. However, they are certainly, de facto, fit people to do the job because we decided this in section 38.
The Minister is assuming that a public authority, a local authority, is a fit and proper person.
They must do it effectively, efficiently and——
If they prove otherwise, whereas private organisations must be passed.
Amendment, by leave, withdrawn.
Amendments Nos. 173a and 177a, in the name of Deputy Sargent, are related and both may be discussed together. Is that agreed? Agreed.
I move amendment No. 173a:
In page 55, subsection (6), lines 18 to 23, to delete paragraph (a).
Amendment No. 173a would delete section 40 (6) (a) which provides that where a waste licence is granted by the agency conditions attached to any relevant foreshore licence shall, in so far as they are for the purpose of environmental protection, cease to have effect. This would be a retrograde amendment and I do not propose to accept it.
Where there is the possibility of conflict or overlap between the requirements of two different legislative codes it is desirable, as a matter of good legislation, to provide for clarity and the removal of doubts. In this instance, section 40 (6) (a) is intended to ensure that the application of the highest environmental standards under the waste licensing system is put beyond doubt. The principle which is applied throughout the Bill, and which will be applied in the Act, is that the agency, the Environmental Protection Agency, has primacy in determining the level and nature of environmental controls applicable to any licensing activity and that the conditions of a licence granted by the agency for the purpose of environmental protection shall itself supersede any equivalent provisions of other enactments. That is the way it should be for highest standards.
I hear what the Minister is saying; it is similar to what has been said before. It is, presumably, subject to a legal interpretation. There is something hollow about highest environmental standards as they are applied, especially in foreshore areas. I know this from the painful experience of living with a community that has to accept the rhetoric of acceptable standards and highest possible standards with regard to places, such as the Ballealy Dump. In this instance, a foreshore licence was granted for what was meant to be a reclamation. It is supposed to have very little to do with waste. The only problem is that it has become so reclaimed that a mountain is being built. Not only is this a visual intrusion, but there is a great deal of evidence that there is a level of pollution, for example, shell fish caught there cannot be eaten and there are various other problems which I could elaborate if time allowed.
However, the Minister should take the second amendment into account. It should not present a problem as it says that the conditions attached to a waste licence may apply in respect of any plant or land or any part of any land which is or has been used for the purpose, or incidental to an activity to which a licence relates, and any emissions from the facility concerned.
The foreshore is outside of the remit of the Minister, technically in any event, in so far as pollution and such like do not observe boundaries. In this case the Minister should seek to understand the difficulty in producing finite borders in administrative terms for a subject that does not respect boundaries or borders. What reassurance can the Minister give the community, on whose behalf I put down this amendment, that they will not be left out in the cold under this legislation and be obliged to live with the inadequate controls under the foreshore license currently operating at Rogerstown estuary?
I accept that the Deputy's intention is to ensure that this Bill will apply to the foreshore. We received this amendment on Monday and I am taking legal advice. I ask that the amendment be withdrawn. I will refer back to the Deputy specifically with regard to the intention of the amendment and I will explain it on Report Stage.
I accept that.
Amendment, by leave, withdrawn.
I move amendment No. 173b:
In page 56, lines 1 to 4, to delete subsection (8).
Will the Minister comment?
The amendment proposes to delete subsection (8) of section 40 which allows the agency to regard a person as a fit and proper person even where the person does not comply with the criteria specified in subsection (7). I do not propose to accept the amendment as I consider the subsection necessary in the interests of fairness and good administration and on foot of the strong advice I have received. The agency should be in a position in appropriate circumstances to make a determination if it sees fit to discount a previous conviction for the purpose of making a determination under subsection (4) as to whether a licence applicant is a fit and proper person. I have confidence in the agency making a determination and I do not wish to exclude people from consideration. That is a fair way to approach this.
Does the Minister worry that subsection (8) could be seen as nullifying subsection (7)? That worry has been expressed to me. I will not take this further because time is against us. I will withdraw it because, as the Minister said, these amendments were put down quite late. However, perhaps he would think about it again.
I understand the Deputy's intention and there is merit in reflecting on it. However, I do not want to exclude people from consideration before they get past first base for what might have been a technical or minor infringement of the regulations. In fairness, they should be allowed to be considered. Clearly, nobody should get a licence if they were in serious breach previously and I doubt that the agency would entertain such an application. Nevertheless, to exclude people because of a technical breach in the past is a little too arbitrary and the agency should have a little flexibility in that regard. That is what I am seeking.
The Minister is trying to be generous to somebody who has had a minor problem in the past. This happens in law all the time. The Minister will be aware of examples where a parent reports their child for stealing the car because they went off with it and never said where they were going. The parent reports the incident in a temper. These things happen.
It does not make good law.
It does not make good law. One cannot govern and protect the environment by looking after the humane aspect of the law when it could constitute a loophole.
Amendment, by leave, withdrawn.
Section 40 agreed to.
Is there a suggested commencement time tomorrow?
We made a great deal of progress today and we could conclude the Bill in two hours.
We could meet at 9 a.m. and adjourn for the Order of Business.
I would like some time to go through amendments in advance.
Starting time should be 9.30 a.m. because we need time to deal with our post at 9 a.m.
Is it agreed that we commence at 9.30 a.m.? We can discuss then whether we should adjourn for the Order of Business. Members will be in a better position to say if they wish to attend the Order of Business. Is that agreed? Agreed.
Can we set an objective to conclude our considerations by lunchtime?
We should set an aspiration.
The Minister might offer a suggested timetable in the morning which would be subject to the agreement of the committee. There are few amendments on a number of sections and quite a few have been put down on other sections.
I undertake to do that.
The Select Committee adjourned at 5.10 p.m. until 9.30 a.m. on Thursday, 9 November 1995.