Amendments Nos. 155 and 157, in the name of Deputy Dempsey, are a composite proposal and both may be discussed together. Is that agreed? Agreed.
SECTION 32.
I move amendment No. 155:
In page 41, subsection (2), lines 15 and 16, to delete ", save in such circumstances as may be specified under subsection (4),".
The import of amendments Nos. 155 and 157 is that there would be no exception provided in subsection (2), which, as drafted, prohibits the transfer of waste to any other person other than an authorised person, save in circumstances as may be prescribed.
This saver clause is necessary and appropriate as, for example, in the case of minor transfers — it may sound hazardous, but we need to cover all these issues in law — the deposit of litter in a litter bin provided by a retailer, or other appropriate transfer to a charity, registered waste broker or dealer. It does not detract in any way from the basic provisions of subsection (1), which prohibit a person from disposing of waste in a manner that causes or is likely to cause environmental pollution. This is already catered for, but it is necessary to cater for all possibilities with regard to the deposit of waste.
I had intended to ask the Minister to outline the circumstances in which this might happen because I could not understand the phrase about transferring to an authorised person. However, the Minister has explained that. Amendment No. 157 seeks to delete paragraph (c).
It is the same thing.
It refers to what the Minister said earlier.
Amendment, by leave, withdrawn.
I move amendment No. 155a:
In page 41, subsection (3), line 24, after "pollution" to insert "or endanger human health".
Environmental pollution is defined on page 11. There could be instances where a legal loophole would exist. Even though environmental pollution is referred to, endangering human health should also be explicitly included. Environmental pollution is a broad statement but I am not sure whether it would be seen as being quite as broad in law.
For the avoidance of doubt it is already specified in the definition section. The definition of environmental pollution on page 11 states: "environmental pollution means, in relation to waste, the holding, recovery or disposal of waste in a manner which would, to a significant extent, endanger human health or harm the environment, and in particular . . ." and a list of instances follows. The Deputy's concerns are already covered.
Amendment, by leave, withdrawn.
I move amendment No. 156:
In page 41, subsection (4), line 25, to delete "may" and substitute "shall".
This is another question about the use of "may" and "shall". The Minister will probably say that there are some legal provisions or reasons why a person should not be forced to provide a policy of insurance. However, it should not be optional for a person who is operating in this area to have some type of insurance or bond. It is absolutely essential that the holders of waste and waste materials should have insurance. If people can walk away from their responsibilities after wreaking havoc on the environment or in an area over a period of time, we are making a laugh of this legislation.
There was a relevant example in my constituency. The local authority with due diligence granted planning permission to a private operator for a dump which subsequently was found in court to have polluted the watercourses in the area. There was an insurance policy for up to £1 million in damages and, thankfully, the local residents who suffered as a result had recourse -although it was four or five years later because of the court system — and were able to make good the damage that was found by the Supreme Court to have been done by this individual.
We talked about this matter during earlier meetings. If there are insurance policies or bonds in place, banks and insurance companies will also try to ensure that these sites are operated in an environmentally friendly manner. Increasingly, insurance companies are refusing insurance to people who are not operating in an environmentally friendly manner. A later section of the Bill also deals with this matter. A policy of insurance should be mandatory so that people will have protection. One cannot have fly-by-night merchants causing the damage and moving out with nobody able to chase them afterwards.
The "may" and "shall" provisions are classic debating points in every Bill. I have already accepted similar amendments so I hope the Deputy will accept that I do not have a rigid view. I will include "shall" and "may" where appropriate.
In this instance, I ask that I be given leeway. The market in environmental protection insurance in this country is new and developing. I would like the scope to draft the regulations in a way that allows operators to operate without imposing restrictions that are impossible to fulfil. I accept the principle of what Deputy Dempsey has outlined. I have talked to international operators, particularly in the United States where this market is more developed, and there are real difficulties to be overcome with regard to this matter. However, it is not my intention and it will not be the case that anybody can walk away from doing environmental damage.
I do not want my comments to be taken as a reflection on the good faith of the Minister. However, in this respect we need more than good faith. If we are serious about this matter there must be some way — in other words "shall" must be used — in which polluters will be made pay. I have no lack of faith in the Minister's goodwill but anybody who is involved in an area that has the potential to affect the environment in a serious way should be obliged to have a policy of insurance or have a bonding system. Bonding and licensing systems will be discussed later so I will not get involved in that at this stage. However, we must have something stronger than the Minister's act of faith in this regard. I accept his sincerity but the road to hell — and probably to heaven — is paved with good intentions and that is not good enough in this case.
I am somewhat disappointed with the Minister's reply. This requirement is essential. We are encouraging more people outside the local authority sector to become involved in waste management at different levels, from the individual householder to companies that are obviously profit motivated but also, we hope, have due consideration for other aspects of the common good. That requires that we be explicit about requirements for people who are involved in this area or who are thinking of becoming involved. In the same way as public liability insurance and vehicle insurance is required in other sectors, if people are dealing with waste they should have the insurance or bonding mentioned by Deputy Dempsey. This should not be dictated by goodwill. As much as I agree that goodwill ought to be a factor in other matters, this is too serious.
Perhaps we are exaggerating this section. What is sought by Deputy Dempsey and Deputy Sargent is dealt with in other sections. We are discussing a holder of waste. A holder of waste could be any household in the country that has a dustbin.
Should a person be insured against his dustbin being knocked over? The issue of handling waste is a matter for the licensing regime we are establishing. Under section 40 (7) (c) the licensing requirement through the environmental protection agency requires that the agency must be of the opinion that the person is likely to be in a position to meet any financial commitments or liabilities the agency reasonably considers will be entered into or incurred by him or her in carrying on the activity to which the waste licence will relate in accordance with the terms thereof, or in consequence of ceasing to carry on that activity. Anybody in the business of handling waste will have to have a licence. That licence will take account of the financial liabilities including the liabilities to anybody who is damaged by any pollution caused. That is dealt with under the licensing regime and is separate from this provision.
In regard to the general point made in terms of a polluter walking away, in this Bill we are making it a serious offence to pollute and per se a person who causes pollution will be amenable to the law and a heavy fine. We do not want to establish a regime where every activity that involves touching the waste — listening to Deputy Sargent on previous occasions, waste can be virtually everything because everything is capable of re-use — must be insured; it is a step too far. Although I acknowledge the intention it is something on which I need to reflect in drafting the regulations and I would not take it to the extreme that Deputies opposite have.
I would not expect the Minister to make a regulation about somebody knocking over a litter bin or something like that. The Minister knows what I intend, that anybody that holds waste on the scale we are considering, should have an insurance policy. I note the last comment made by the Minister in relation to giving this further consideration, and I also note what he says about later sections but I have put down amendments which may not be to amend the sections about which the Minister is talking. In one place the Bill states "regulations which shall" and elsewhere states "which may" and the provision in regard to insurance is in the "may" section, not in the "shall" section.
The financial provisions involved in that and the bona fides of any such person in regard to his solvency and his recorded financial ability to meet costs including any costs of pollution are all specified clearly but we will get to that when we reach further sections of the Bill.
I do not want to argue that case with the Minister but he knows and we have all spoken at various stages about our company law and how companies very quickly go into liquidation and Mr. Joe Bloggs and Company, Ltd. becomes Joe Bloggs and nobody can follow him. However, an insurance policy is specific to the facility and somebody has to pay, even if the fly by night merchant is gone. I note what the Minister said at the end of his contribution and I am prepared to withdraw this to give the Minister a chance to come back with something. We will contest this issue very strongly and will go to a vote on it if necessary on Report Stage, but I accept the Minister's bona fides in looking for some way of facilitating this, and withdraw the amendment on that basis.
Amendment, by leave, withdrawn.
Amendment No. 157 not moved.
Section 32 agreed to.