Select Committee on Finance and General Affairs debate -
Thursday, 9 Nov 1995

SECTION 41 (Resumed).

Minister for the Environment (Mr. Howlin)

I move amendment No. 174:

In page 57, subsection (2) (a) (iii), line 10, after "waste" to insert ", the proximity to the facility concerned of water catchment areas".

Section 41 deals with waste licence conditions. Subsection 2 (a) (iii) provides that the conditions attached to a waste licence shall specify procedures or methods to be followed having regard to the nature and composition of the waste and the characteristics of the receiving environment. The amendment I am proposing would require that regard would also be had to the proximity of water catchment areas when specifying procedures or methods. The purpose of the amendment is to give effect to article 10 of European Union Council Directive 80/68/EEC on the protection of ground water against pollution caused by certain dangerous substances. I recommend it for acceptance.

Mr. Dempsey

This is in keeping with an earlier amendment on water management plans and it is good.

Mr. McCormack

Does that amendment specify, or will there be laid down a maximum distance which a waste facility has to be from a ground water source?

Mr. Howlin

Yes, that would be specified in the licence and regard would have to be had to the proximity of any such water course.

Mr. McCormack

What is the definition of a ground water source in the context of that amendment?

Mr. Howlin

That is technical European law. A lawyer, a judge and probably the European Court will make that ultimate definition, but the commonsense definition——

Mr. Mc.Cormack

I want the commonsense definition.

Mr. Howlin

——under the Official Journal of the European Communities is that ground water means all water which is below the surface of the ground in the saturation zone and in direct contact with the ground or subsoil. I hope that is clear.

Mr. McCormack

No, it is not clear. It simply means it could be interpreted any way.

Mr. Howlin

As is the case with most law we enact, it is subject to ultimate determination in another forum. That is why the courts are separate from the Executive.

Miss Quill

It is a good amendment. You could reduce it to absurdity by debating where water comes from but that would not be practical or sensible. It is as far as you can go in law in all the circumstances to give the proper protection needed to ground water. I support the amendment.

Mr. McCormack

I was afraid it was going a bit too far.

Miss Quill

I do not think we can go too far when dealing with the quality of water.

Mr. McCormack

I meant too far in regard to the definition.

Acting Chairman

I take it that Deputy McCormack's wanted to find out what a body of water is, whether it is a drain, a stream, a river, a lake or whatever.

Amendment agreed to.

Mr. Howlin

I move amendment No. 175:

In page 57, subsection (2) (a) (viii), line 39, before "the period" to insert "specify".

This is a technical amendment to correct a drafting error and to give the provision the intention I originally intended. The amendment proposes to insert the word "specify" before "the period" in section 41 (2) (a) (viii) as "specify" was inadvertently omitted from the printed text of the Bill. The paragraph is intended to require that records be kept and to specify the period over which they are to be preserved.

Amendment agreed to.

Mr. Sargent

I move amendment No. 175a:

In page 57, subsection (2) (a), between lines 40 and 41, to insert the following:

"(ix) require records to be available at a specified place and times for inspection by any member of the public,".

Mr. Howlin

I do not propose to accept this amendment. We have had some discussion about the methodology of giving access to information and we all favour the concept of public access but we differ on how this should be achieved. My view — this is how I have laid it out in the Bill — is that operators would be required to provide information to local authorities who would keep a public register of that information to which the public would have access. This is more efficient and sensible than requiring individual operators to keep heir own records and having the public traipsing in and out of their premises. My way is neater and more efficient and the way to go about the matter. I ask the Deputy not to press the amendment.

Mr. Sargent

If I am not to press the amendment I want to know if the Minister is satisfied that members of the public, who were anxious that I should strive to have this amendment accepted, will have a satisfactory recourse to have their concerns met. Is the Minister satisfied that the Environmental Protection Agency or local authorities will not be able to claim that the companies involved have the information rather than they?

Mr. Howlin

It would be much more desirable for the public to know that all the information they require is with the local authority and that they have public access to it. The notion of people having to go to a particular commercial premises, find the correct person and examine the files and of waste operators making available public viewing areas for such inspection is impracticable. It is also inconsistent with the way I have laid out the public access to information requirements in the Bill. The operator will be required to keep extensive records to which the Environmental Protection Agency and the local authority will have access. The information required by the general public would be transmitted through the local authority. This is the best, safest and most secure methodology from the public point of view and meets the requirements the Deputy requires. My answer to the Deputy's question is yes.

Mr. Dempsey

I accept in theory what the Minister says. This is the most effective way of providing information if local authorities believe in providing information to the public on these matters. However, I regret that local authorities seem to have the same approach to giving information as central Government Departments. Articles have been written about this.

We all accept the Minister is going in the right direction with regard to implementing this plan and he has, rightly, talked about training, seminars, conferences and so on. In addition to these, will he deal specifically with the matter of providing maximum information to the public? It is clear what the Minister intends from what he said but the reality is anything but clear. Even public representatives who have experience of environmental matters, through the Environmental Protection Agency, local authorities or health boards, have to climb mountains to obtain information.

I ask the Minister to specifically build into his programme of seminars and conferences some transparency and accountability. People are entitled to this information and it should be provided to them, not reluctantly and grudgingly but openly. I am not speaking in favour of the amendment and I accept what the Minister said but theory and practice are widely distant at the moment. The Minister has a major role in ensuring that the theory becomes reality.

Mr. Howlin

I largely accept what the Deputy said. We need a cultural change in both local and national administration with regard to access by the public to all aspects of public information and this is happening. The Government will shortly introduce a freedom of information Act which will open up the workings of national Government to public scrutiny, which was not available heretofore. I have already made changes in the access to environmental information, including access to inspectors' reports, the Environmental Protection Agency and An Bord Pleanála. For instance, in the Medite case the inspector's report is available and this is good and healthy because not only do we know the decisions which were arrived at but also the basis on which they were made.

The Minister of State with responsibility for access to public services, Deputy Doyle, is working on general strategic management initiatives to make Government more accountable to the public. All Government Departments are well advanced in their own strategic management initiatives, a core element of which is the right of people to know and understand the workings of Government and the basis on which decisions which impact on their lives are made. I intend, in my continuing review of access to environmental information, to be as open as is consistent with practicality. We obviously cannot stop the system by placing too burdensome a regime on public administration. Consistent with practicalities I will be as open as possible in the conduct of this Bill and the affairs of my Department. There will be openness with regard to the affairs of all Departments because a cultural change is taking place.

Mr. McCormack

I have no doubt the Minister is sincere but how do we transmit this message to the heads of Departments? It is becoming more and more difficult, even for public representatives, to obtain the simplest information from local authorities, health boards and Government Departments. I am a member of a health board and I often have to research a matter which was discussed at a health board meeting three months previously. However, I cannot obtain information on the simplest matter.

When I telephone a specific office I cannot get the information I require because the head of the office is in Dublin at a meeting and I must wait for someone else to help me. This is a frustrating exercise for a public representative who knows the person to ask for when looking for information. What chance does a member of the public have when seeking such information? Perhaps the Minister could provide better access in that regard.

Mr. Sargent

I will not press the amendment. Although I agree with the Minister about cultural change, it rings hollow for myself and the Independents who are not represented by Whips. We must get our own house in order as regards making information available to everyone.

Amendment, by leave, withdrawn.

Acting Chairman

Amendments Nos. 176 and 177 form a composite proposal and both may be discussed together.

Mr. Dempsey

I move amendment No. 176:

In page 57, subsection (2) (a), between lines 50 and 51, to insert the following:

"(xi) require the holder of the licence to effect and maintain a policy of insurance insuring him or her as respects any liability on his or her part to pay damages or costs on account of injury to person or property arising from the carrying on of the activity concerned,".

We are returning to the discussion we had yesterday evening about "may" and "shall". Section 41 (2) (a) lists the items which "shall, as appropriate" be conditions attached to a waste licence and section 41 (2) (b) lists those which "may, as appropriate" be conditions. I made a point yesterday about insurance and protection for people. I want section 41 (2) (b) (xiii) to become section 41 (2) (a) (xi) and I outlined my reasons yesterday.

People involved in the waste business, which has the potential to damage the environment, should not be allowed to decide if they need an insurance policy. A number of cowboy merchants are operating in this area and they can damage the environment. However, as soon as the law comes close to catching them, they leave. We all know how difficult it is to follow liquidated companies; an individual cannot be legally followed. Sometimes these companies must only change their name to have protection.

The section states "shall, as appropriate" and this should be used rather than "may, as appropriate". Special pleadings will probably be made and people will say there is little insurance cover in this area. However, people in this business should not be given the opportunity to start without having insurance cover and a bonding system. I ask the Minister to accept this amendment.

Mr. Howlin

I understand the Deputy's point. However, I do not propose to accept the amendment and I will give my reason. We have thought carefully about this issue. We are talking about third party insurance for a waste operator. It is a protection for the operator, not the third party who, if he is damaged in any way, will have the right to sue. Whether the operator has insurance or not will be academic to the injured party's rights.

The Deputy wants a mandatory insurance system. We talked to the industry at some length in preparation for this Bill. This is a new insurance area and we are not certain we can guarantee it will be available when this legislation is initiated. It would be wrong to include a mandatory requirement which would not be available to people. We are not talking about the protection by a waste operator of a rogue, an accident or a danger to the public. That is covered adequately under section 53 which we have to discuss. It requires bonding and financial security before any waste licence is granted. We are talking about a specific type of third party insurance which may not be currently or widely available. On the balance of evidence I have, it would be inappropriate to make it mandatory. I ask the Deputy to accept that logic.

Mr. Sargent

The Minister said he talked to the industry, but I am not sure if he meant the insurance or the waste industry.

Mr. Howlin

The insurance industry.

Mr. Sargent

There is a role for the Minister for Finance in regulating——

Mr. Howlin

It is the role of the Minister of State at the Department of Enterprise and Employment, Deputy Rabbitte.

Mr. Sargent

There is a role to play in regulating the insurance industry. This should be done before we deal with waste insurance because more private operators means that it could become a greater aspect of the insurance industry than it was before. No claims bonuses, etc. must be seriously considered.

Mr. Dempsey

I am not sure I understand the Minister's logic. We are talking about the conditions attached to a waste licence. He may include it as a condition which requires the holder of a licence to maintain the policy. "Shall, as appropriate" means it is not mandatory. The Minister will only have an obligation if it is appropriate. For example, it would be appropriate if someone is getting a waste licence for waste which may not be termed hazardous, but which is close to being so.

I already mentioned a landfill operation which subsequently polluted the water and made it undrinkable for ten or 15 houses. As part of its planning conditions, the county council stated that there should be an insurance policy which meant the operator was covered for approximately £1 million.

It should be a condition of a waste licence that, where appropriate, an operator should take out insurance. If he cannot get an insurance policy he can always appeal the condition attached. If an insurance company is unwilling to accept the risk, that should be a warning to those who are being asked to supply a licence to an operator that perhaps they should not do so.

Mr. Howlin

In the case cited by the Deputy, the agency has the freedom to put in that condition. I do not want to make it a mandatory requirement for every applicant, which is why I want the flexibility that I have already drafted into the Bill.

Mr. Dempsey

How does "shall, as appropriate" make it mandatory?

Mr. Howlin

There will be different types of insurance for different types of operations. We are trying to frame a phrase that will allow the agency to dovetail the requirement in insurance terms as in the other terms appropriate to the activity that seeks to be licensed. The insurance requirement will be different, depending on the location, type of waste and volume. Insurance may be minimal for small operations without a great requirement for insurance. It is a matter of flexibility.

This is a whole new area of insurance and I agree with Deputy Sargent that it will be a growth area. I envisage that a licence will be mandatory for all operations before long and the Minister can give policy directions to the agency under section 60 to have regard for that in due course. However, we must not seek to build every eventuality into the Bill at this stage because this will have an organic growth as the implications of the Bill impact on all aspects of our society.

Mr. Dempsey

I withdraw my amendment. I sincerely hope unavailability of a type of insurance will not preclude refusals of licences etc. for waste operators. I do not like the underlying message I am getting from this.

Mr. Howlin

There is a mandatory requirement to take out insurance before one drives a car. Some of our young people cannot drive because they cannot get insurance. They may not have had an accident and are under 25 years of age but they cannot afford this horrendous insurance. I do not want to set out by making part of the country unoperational under this Bill. I do not want to put that level of power in the hands of the insurance industry and let it decide on premia knowing that the holding of such a policy is an absolute condition to getting a licence. That would be wrong.

Amendment, by leave, withdrawn.

Acting Chairman

Before moving on to the next amendment, I must remind Deputies that when we started our business, we agreed that we would have dealt with sections 41 to 50 by 10.30 a.m. However, we are still on section 41 and still have three more amendments to deal with on this section. Therefore, we cannot realise this work programme. There will be a winding up motion at 1 p.m. Therefore, any amendment that has not been dealt with by then will fall because we will conclude our business at this time. If we want to deal with most of the amendments, Deputies will have to be as concise and as brief as possible in their contributions.

Amendments Nos. 177 and 177a. not moved.

Mr. Sargent

I move amendment No. 177b.:

In page 59, subsection (6), line 48, after "licence" to insert "and shall consult with members of the public living in the direct catchment area of the proposed facility".

This is first time I have heard a guillotine being proposed on Committee Stage.

Acting Chairman

This was agreed to earlier, Deputy.

Mr. Sargent

I know, but it is tantamount to the same thing.

Acting Chairman

It was agreed to earlier. I am in the hands of the Minister.

Mr. Sargent

I am not wasting time; I am anxious to know if this is a precedent, but that can be answered later.

This is a reasonable amendment. It comes out of the painful experience of people who have, and will continue to have, to live with large shortcomings in waste management and responsibility for it at all levels of Government down to the individual householder. This amendment is an addition to section 41 (6).

By chance, somebody working in the agency may live close to the proposed facility, in which case they may have a heightened sensitivity to it. If this is not the case, it may be appropriate for the agency to consult with people living in the directly affected area. Some people in my constituency are involved in farming and this would be ruined by such a facility. Sending children to school along a country road would also be impossible if large lorries were driving on it. Many considerations must be borne in mind and it would be prudent for the agency to take into account the observations and views of people living in the locality.

Mr. Howlin

I regard the inclusion of the amendment as inappropriate. This section deals with an inspection after the granting of a licence prior to the commencement of the waste recovery simply to ensure the conditions of the licence are being met before the green light is given. However, all the considerations of the licence would be over by then. Therefore, what would consultation achieve at that stage? The amendment is totally inappropriate and I ask the Deputy to withdraw it.

Mr. Sargent

I do not see how the Minister can say it is inappropriate. If the agency is determined to see the conditions are being complied with, a good way of getting to know the day to day life of people living under the remit of that licence is to find out from them how they view its operation.

Mr. Howlin

That would be before the licence was granted. The licensing procedure deals with whether the licence should be granted. Once it is granted, the site would be inspected to ensure the conditions are met before the operation commences.

Mr. Sargent

The conditions cover more than the site.

Mr. Penrose

I understand what Deputy Sargent is getting at but I see tremendous difficulties with it. I agree with the Minister. This subsection will ensure that all the conditions attached to that application have been complied with in full prior to the waste recovery activity coming into operation. It is not appropriate to insert an amendment here. It is an extra condition but it would be meaningless at the end of the day. I understand what the Deputy is getting at but the operation would not have come into being by then. Applying these conditions would also create much unwanted paperwork. Only a ground inspection would ensure these matters had been attended to before the operator begins.

Mr. Sargent

I am not pressing the amendment. However, this concern is not being addressed and it will need to be examined further.

Amendment, by leave, withdrawn.

Section 41, as amended, agreed to.