Select Committee on Finance and General Affairs debate -
Wednesday, 8 Nov 1995

SECTION 29 (Resumed).

Mr. Sargent

I move amendment No. a144b:

In page 38, subsection (4) (o), line 8, after "facility" to insert "and that this requirement could partially offset the requirement for a specified number of car parking spaces specified in the planning application of such a sales outlet".

This matter has been brought to my attention by the owners of various sales outlets who are very keen to do everything possible to facilitate a network of community facilities where recycling can take place. In many cases, however, they are constrained by conditions under the planning laws which require that a sales outlet can refer to provision for a certain number of car parking spaces. This requirement does not take into consideration the public's goodwill in relation to tolerating a reduction in car parking space adjacent to mini markets, for example. That space could then be used for a paper bank or some other such receptacle. I ask that the Minister take this point on board. I am sure the parliamentary draftsman might produce a more precise wording which might take account of the sentiment of this amendment. The Minister should be sympathetic to the real difficulties people experience in this regard and take account of public goodwill.

Mr. Howlin

I am well disposed to the intention of the amendment. I accept the principle involved. If the Deputy withdraws the amendment I will return on Report Stage with an appropriate amendment which encapsulates that principle.

Amendment, by leave, withdrawn.

Mr. Sargent

I move amendment No. b144b:

In page 38, subsection (4) (r), line 18, after "authority" to insert "and/or potentially responsible parties generating waste".

This comes hot and heavy on the heels of the previous amendment and I will have to consider what I have to say on the matter. I refer to section 29 (4) (r) which states: "notwithstanding any other provision of this section, requiring a local authority to provide specified financial assistance in a specified manner to persons engaged in the recovery of household waste, . . ." It appears that the local authority is perceived as the sole agent when, in fact, we are attempting to broaden responsibility. Many local authorities have already embarked on a path to involve private companies in their overall waste management strategy.

The experience of the Kerbside project, which Members of the committee have visited on several occasions, shows that many private companies are very different in their outlook. Some companies readily accept their responsibilities and are quite progressive in utilising those responsibilities as a marketing side to their business. They support places such as Kerbside and advertise the fact to the extent that they hope the public will warm to their public spirit. Others, at the opposite end of the scale, deny that they have any role to play in contributing to the Bill. This amendment suggests that potentially responsible parties should also be included. This would mean that the local authorities are not left high and dry with a double standard whereby they are required to provide help in the specified manner and that the same onus would not be placed on companies that take over from the local authorities.

I appreciate that the Minister can make regulations in many cases in relation to this Bill. However, I hope we could have a level playing pitch to begin with in the legislation before the need for regulations arises.

Mr. Howlin

I cannot accept this amendment which proposes to extend the scope of paragraph (r) to enable a requirement to be imposed on any producer of waste to operate a scheme of recycling credits. The paragraph included in the Bill is intended to provide for the mandatory operation by local authorities of a system of recycling credits. There is no scope for the involvement of waste producers in a mandatory recycling credit scheme. The argument could be made that this goes against "the polluter pays" principle in that the recipient of the waste will have a credit system in operation. However, "the polluter pays" principle is evidenced in other parts of this enactment. As the local authorities will, in large measure, be the recipient of the waste it is appropriate that they be required to operate a credit system, but not the private sector in general. For those reasons I ask the Deputy not to press the amendment.

Mr. Sargent

I am disappointed with the Minister's response. For the benefit of companies such as Kerbside — faced with the denials of private companies that they have any responsibility in relation to the generation of waste — what measures does the Minister see as relevant to requiring companies to face their responsibilities? At the moment such companies are not dealing with their responsibilities and it seems they have the choice to do so.

Mr. Howlin

I understand what the Deputy is attempting to achieve. I am supportive of a recognition by the business sector of the important role played by Kerbside and similar groups — I am hopeful that more such groups will appear across the country. I am also anxious to achieve that recognition but I do not believe the Deputy's proposed mechanism is suitable. I will reflect further on how the intention might be expressed in other sections of the Bill.

Amendment, by leave, withdrawn.

Acting Chairman

Amendments Nos. 144b and 144c will be taken together.

Mr. Sargent

I move amendment No. 144b.:

In page 38, subsection (4) (s), line 26, to delete "either".

Perhaps the Minister could respond to this amendment.

Mr. Howlin

The amendment would restrict the grounds for exemption from the requirement of regulations under section 29 for recognition only of persons who are members or shareholders of a body duly approved by the Minister and who also comply with requirements of that body in relation to waste recovery activities. I do not agree with this amendment. The precise nature of the body or bodies to be formed for the purpose of carrying on and certifying satisfactory participation in recovery activities has not yet been established. I am having discussions with IBEC in this regard and I do not want to be too prescriptive until we have a clearer picture of what will emerge. We are only putting the framework together and I want flexibility in my discussion with the industry. For that reason, I ask the Deputy to accept my general provision.

Amendment, by leave, withdrawn.

Amendment No. 144c. not moved.

Acting Chairman

Amendments Nos. 152, 153, 153a., 154 and 170 are related. Amendment No. 152a. is an alternative to amendment No. 152 and amendment No. 154a. is an alternative to amendment No. 154. Amendments Nos. 145, 152, 152a., 153, 153a., 154, 154a. and 170 may be discussed together.

Mr. Dempsey

I move amendment No. 145:

In page 38, subsection (4) (s) (ii), line 33, after "waste" to insert "provided also that the body corporate has an environmental management system certified to a recognised standard".

This section is designed to promote voluntary schemes. In many cases the carrot is better than the stick and it is good to see co-operation, rather than regulation. However, I am concerned about the slow pace at which agreements are being reached. IBEC is currently having discussions with the Minister. When agreements are reached, they should be independently and objectively assessed to ensure that people live up to them and to make it easy for public authorities to be independently monitored and assessed. It would also allow the Minister and the Environmental Protection Agency to make comparisons between public authorities and how they reflect the standards and agreements reached.

It is necessary to appoint an outside body to set minimum standards since local authorities often adopt a minimalist approach because they are already overstretched. It is important to constantly upgrade targets and to appoint an independent body to carry out an annual audit. If my amendment is accepted, the Minister will show that he is leading by example rather than paying lip service to that concept.

Mr. Howlin

I agree with the Deputy's objectives. I appreciate that he wants a national standard and an external validation. However, this section deals with policy matters. Environmental management systems are not appropriate to programmes or policy, but to a particular activity. It is possible that IBEC — I expect its proposals to be finalised this month — will set up a facilitating agency which will determine policy, rather than do the work. The amendment would not be appropriate to that activity. We can achieve the Deputy's objective of quality control and monitoring, but it is not appropriate to include an environmental management system. "Certified to a recognised standard" is not meaningful in a legal sense because what is meant by "standard" or who certifies it?

Mr. Sargent

I accept the Minister's point. However, he is optimistic about the level of co-operation he expects to receive. He was kind not to refer to the long delay by IBEC in finalising its proposals this month. If this indicates foot dragging — I hope it will not be repeated — it may be necessary for the Minister to review his generous spirit and to consider these amendments as requirements rather than options.

Mr. Dempsey

I accept the Minister's point, but we are talking about exempting bodies corporate from the requirements of regulations. How will the Minister monitor this if he does not have an independent standard? Is there a more appropriate place in the Bill to insert this provision?

Mr. Howlin

The only exemptions for bodies corporate are if they participate satisfactorily in a scheme. A validation is encompassed in section 29(4)(u) which states:

requiring a person to keep specified documents, records or other particulars and to furnish specified information to specified persons in relation to the steps taken by him or her to comply with a specified requirement of regulations under this section, and enabling a specified person to verify the accuracy of any matter stated or recorded pursuant to a requirement of regulations under this paragraph,

The verification mechanism is in place. I am confident we have voluntary support for the principles outlined. In my Second Stage speech I said I would negotiate voluntary codes as far as practicable, but I have good law to force the issue if there is not a voluntary code.

Although I might be accused of being generous in spirit, I have received no indication that there is not enthusiasm to deal with waste in a new way incorporating the principles we outlined and which underscore this legislation.

Amendment, by leave, withdrawn.

Mr. Dempsey

I move amendment No. 146:

In page 38, subsection (4) (s), between lines 33 and 34, to insert the following:

"and details of all such exemptions shall be made public by the Minister by means of a public notice in a national newspaper,".

I will not repeat what I said earlier, but this relates to openness, transparency and accountability. The public is entitled to know if the Minister will make exemptions. Perhaps the expense should not be placed on the Minister but on the individuals or companies concerned. If we are providing for exemptions those with an interest should know about them and should be able to make their views known as to whether the exemptions should be granted.

Mr. Howlin

I would not put it that way in terms of granting exemptions. It is actually a positive thing in that they are participating in a code which is acceptable. I welcome the Deputy's comments and so too will the Minister for Finance who does not want to load my budget with the requirement to make such notification. I believe participating companies and corporate bodies will be delighted to notify people because it will be the badge of a progressive attitude to waste management. I do not believe he will have any difficulty with that but I do not want to take on the job.

Mr. Sargent

I appreciate that the Minister has many demands on his budget but I wonder about the investment this may represent. While notification could be quite modest its existence does two things. It puts pressure on the company that is not complying which might affect its public relations and marketing strategy. It would also mean that companies not complying would suffer from not having the recognition of a notice.

The Minister has already nailed his colours to the mast in respect of the voluntary code. This is simply a way of reinforcing the psychological factor where companies are rewarded by way of recognition. I am sure they will do their own marketing but it is good that they can use the recognition from the Department in their publicity. That would give it an official badge which others would want.

Mr. Dempsey

Would the Minister consider making it a requirement for those who comply with the regulations? I accept the point that after a while it will be like ISO 9000 which people boast of in their advertising. In the initial stages, would it be possible to encourage or to specify in regulations that they should do this?

Mr. Howlin

I will look at this again. Any public notice requirements which are appropriate could be encompassed by regulation.

Amendment, by leave, withdrawn.

Mr. Dempsey

I move amendment No. 147:

In page 39, subsection (4) (u), line 11, after "particulars" to insert

", which shall be open to public inspection,".

We are return again to openness, transparency and accountability. Having been the victim of it I have the zeal of a convert. As the Minister knows I have always been an advocate of openness, transparency and accountability. Information on matters pertaining to the environment and the Waste Bill should be available to the public. I ask the Minister to include this in the section.

Mr. Howlin

I am no less supportive of openness, transparency and accountability. In support of that, I have already accepted a number of amendments. I tabled amendments Nos. 136, 137, 148 and 149 to develop and expand that principle. I am anxious that there should be publication by persons of information as regards their waste recovery activities. That is already encompassed in the Bill and I hope the Deputy will accept that this amendment is not necessary as the purpose is already well met.

Amendment, by leave, withdrawn.

Mr. Howlin

I move amendment No. 148:

In page 39, subsection (4), between lines 16 and 17, to insert the following:

"(v) requiring a producer or distributor to prepare and publish, at a specified frequency and in a specified manner

(i) a plan specifying steps proposed to be taken by him or her to promote, support or facilitate the recovery of any product or substance made, distributed or sold by him or her, or any component of, or packaging related to, such a product or substance, and

(ii) a report on the steps taken by him or her in pursuance of such a plan and the results of those steps,".

Amendment agreed to.

Mr. Howlin

I move amendment No. 149:

In page 39, subsection (4), lines 17 to 22, to delete paragraph (v) and substitute the following:

"(v) requiring the preparation and publication, at a specified frequency and in a specified manner, by a person who is the subject of any specified requirement of regulations under this section (other than a requirement imposed by regulations under paragraph (v)*) of—

(i) a plan specifying the steps to be taken by him or her to comply with such a requirement, and

(ii) a report on the steps taken by him or her to comply with such a requirement and the results of those steps,".

Amendment agreed to.

Mr. Sargent

I move amendment No. a149a:

In page 39, subsection (4)(x), line 28, after "composting" to insert "or an anaerobic digestion".

Mr. Howlin

If this amendment were accepted subsection 29 (4) (x) would read: "requiring local authorities to facilitate, promote or undertake in a specified manner the composting or anaerobic digestion of municipal waste of an organic nature." To facilitate the Deputy I am happy to accept this amendment in principle and I will return with an appropriate draft amendment on Report Stage.

Mr. Sargent

The Minister has saved me from testing my powers of debate and persuasion and I welcome what he has said. As I said in the Dáil yesterday, some of the options, not often entertained by civil engineers when it comes to dealing with matters which should also be dealt with on a biological basis, will now, gain a little more credence through that type of innovation.

Amendment, by leave, withdrawn.

Mr. Sargent

I move amendment No. b149a.:

In page 39, subsection (7), lines 48 and 49, to delete "a good defence to prove that the accused took all reasonable steps" and substitute "required that a revised procedure be proposed by the defendant".

Mr. Howlin

We have gone through this in some detail and, unfortunately, I cannot accept this amendment on the basis of my legal advice. There are two issues involved: the deletion of a good defence provision and the insertion of a requirement on a defendant to propose revised procedures. Now that we are joined by Deputy Penrose, who is a most competent and able lawyer, I know he will strongly support me on this issue.

I am advised it would not be legally possible to hold a person liable in all instances for achieving a prescribed performance target if that person was not in total control of its attainment. It may well be that compliance with the target under the section is not solely in the hands of the person concerned and that the action of others can influence the extent to which a target can be met. If the Bill does not allow a good defence provision, then I am advised I must remove the powers to set targets under sections 28 and 29. I have no desire or will to remove the provision of clear set targets.

For example, if a target is set on the operation of a deposit and refund scheme, the operator of that scheme is dependent on people bringing back the items on which there is a deposit. Even if there is a deposit, people can determine not to bring the items back. Is the operator then liable to be guilty of an offence for not achieving something over which he has not total control?

The Deputy would be anxious, as I am, to have clearly defined targets and a good defence requirement. In that instance and on the best legal advice, I am afraid it is required to let it remain intact.

Mr. Sargent

On the explicit advice of the Minister and the implied advice of Deputy Penrose, I withdraw that amendment.

Mr. Penrose

The Deputy will be glad to know I support the Minister's case.

Amendment, by leave, withdrawn.

Amendment No. 149a. not moved.

Section 29, as amended, agreed to.