Environment (Miscellaneous Provisions) Bill 2011: Committee Stage

We have already considered the Electoral (Amendment) Bill 2011 and will now consider the Environment (Miscellaneous Provisions) Bill 2011. I welcome back the Minister for the Environment, Community and Local Government, Deputy Hogan. I also welcome the officials from the Department of the Environment, Community and Local Government, Mr. Ronan Mulhall, principal officer of the waste policy section, Ms Una Ní Dhubhghaill, principal officer, Mr. William Culbert, assistant principal and Ms Stella McKervey.

It is proposed to group the following amendments for the purpose of debate: 2 and 3; 4 to 8, inclusive; and, 17 and 20. All other amendments which are not grouped will be discussed individually. We will have an opening statement from the Minister.

I am pleased to bring the Environment (Miscellaneous Provisions) Bill 2011 to the committee today. The amendments I propose relate in large part to the Air Pollution and Waste Management Acts. I will also propose an amendment to the Environmental Protection Agency Act. Some of the amendments are of a technical nature while others are more substantive. I appreciate the work done and time taken by members of the committee to propose additional amendments to the Bill.

The amendments on waste management are largely of a technical nature and I will address them in due course. I do not propose that section 7 will be taken forward, following its consideration in the context of the transposition of the waste framework directive. Our primary focus must be on moving away from excessive dependence on landfill to deal with our waste. Our current approach is unsustainable. We must work to develop alternatives in each of the other tiers of the waste hierarchy. I will bring forward a waste policy later this year which will deal with prevention, reuse, recycling and recovery.

I propose to introduce a number of amendments on Report Stage which I will outline to the committee. The office of the Attorney General has advised that the insertion of a new Part into the Environment (Miscellaneous Provisions) Bill is urgently required to provide essential technical amendments to the Planning and Development Acts 2000 to 2010. The new Part will make essential technical amendments to the Planning Acts, including the insertion of definitions of "operator" and "quarry". Technical amendments are also required to previously enacted amendments to section 157 and section 160 of the Planning and Development Act 2000, which provided that the existing seven-year limitation on taking enforcement action for unauthorised development is removed in the case of quarrying and peat extraction.

Other technical amendments will also be provided for, including a provision to introduce a minimum threshold of 100-bed capacity to health infrastructural developments which should be sent directly to An Bord Pleanála under the strategic infrastructure consent procedure. To avoid doubt, a technical amendment to the Planning and Development Acts 2000 to 2010 will be made through this Bill to ensure that the judicial review provisions under the Planning Acts are fully compliant with the Aarhus Convention.

Technical amendments to the Planning Acts are also required to reflect the transfer of responsibility for heritage functions from the Minister for the Environment, Community and Local Government to the Minister for Arts, Heritage and the Gaeltacht. Other minor technical amendments to the Planning Acts will also be provided, including provisions relating to the environmental impact assessment directive and the birds and habitats directives. I also propose to introduce certain amendments to support authorised officers in carrying out their functions and to ensure effective enforcement.

I propose to introduce further Report Stage amendments which will insert new subsections into the Air Pollution Act. One will provide for an authorised person to be accompanied by a member of the Garda Síochána in cases where it is considered necessary when carrying out his or her functions under the Air Pollution Act. A second will provide for an authorised person to apply to the District Court for the issuing of a warrant authorising the authorised person together with members of the Garda Síochána to enter premises, within one month from the date of issue of the warrant, if necessary by use of reasonable force, if they have reasonable grounds for believing that an inspection is likely to disclose evidence of a contravention of the Air Pollution Act.

I will also make provision in the Bill for the name of An Daingean to be changed to Daingean Uí Chuis in the Irish language and Dingle in the English language and to otherwise amend the provisions of Part 18 of the Local Government Act 2001.

I also plan to introduce a number of amendments on Report Stage to give effect to aspects of the Aarhus Convention. These concern Article 9 of the convention, which deals with access to justice and they must be enacted before Ireland can ratify the convention. These include: a provision limiting the costs of environmental actions in the courts; a change to the requirements in respect of seeking leave for judicial review in planning cases from having a "substantial interest" to a "sufficient interest"; an amendment to the "no award of costs" rule in relevant judicial review cases, which was introduced in the Planning and Development (Amendment) Act 2010; and a provision requiring the courts to take judicial notice of the convention. The drafting of these provisions is a complex task but is at an advanced stage. Combined, these measures will significantly enhance access to justice and will allow Ireland to proceed with ratification in the short term.

I intend to introduce an amendment to the Local Government Act 1998 to allow payments from the local government fund to the Minister for Transport, Tourism and Sport to be expended on roads and in the area of public transport infrastructure. I look forward to a discussion of the amendments.

I thank the Minister. Does Deputy Niall Collins wish to make an opening statement?

The Minister mentioned in his opening statement that he will make a number of amendments to the Planning and Development Acts. Will he introduce a separate Bill to amend it?

I will table amendments on Report Stage of the Bill.

Is it still open to the likes of me to table amendments on Report Stage?

I thank the Chairman.

Before I invite Deputy Catherine Murphy to speak, I wish to notify her about disallowed amendments. Her amendment No. 14 has been disallowed for being outside the scope of the Bill as the amendment relates to planning matters whereas the Bill relates to waste policy. Her amendment No. 15 has been disallowed for being a potential charge on the Exchequer. Her amendment seeks to appropriate Exchequer funds from a landfill levy waiver scheme. Her amendment No. 16 has also been disallowed for being outside the scope of the Bill. Again, her amendment relates to planning matters whereas the Bill relates to waste policy.

I understood from our Second Stage debate on the Bill that the Minister had said, in the House, that planning matters would be included and there are some. That was my reason for tabling my amendments and obviously I tabled them because I also felt they were important.

With regard to my amendment on the landfill levy, I did not intend it to be a charge on the Exchequer. I intended it to be an additional part of a levy in order that we would deal with the issue, once and for all, by introducing a national waiver scheme. The idea has been bounced around in every county here for years, yet we are still picking rubbish out of ditches. We must resolve the issue at some point and I suggested the idea as a solution.

The Minister referred, in his opening address, to the issue of Dingle, Daingean Uí Chúis or An Daingean, depending on who one speaks to. As a new Deputy I am amazed that we are troubling ourselves in the national parliament with what the good people of west Kerry and the Dingle peninsula should call their main urban centre. Is there no way under current laws to devolve the issue to Kerry County Council? This type of issue should not be brought before Dáil Éireann and I seek the Chairman's guidance on the matter.

We are taking opening statements now and the Deputy can ask his questions when we reach each amendment.

I am not too sure my next question will come up under an amendment.

We are just taking opening statements at the moment. Questions can be asked when we reach each amendment.

Can I make a statement instead?

Sinn Féin agrees with the policy of sealed plastic bags for solid fuel, smokeless fuel and other fuels, such as coal. It is hard to tell the difference by looking at a bag unless it is sealed and labelled. My party agrees with the Government on the measure. However, we raised an issue, as did a Fianna Fáil Deputy, in the Chamber when the Bill was being discussed that part of the measure is unworkable outside of the smokeless areas regarding solid fuel. A bag of solid fuel does not have to be labelled and sealed and that applies to turf or peat. For example, peat is not sold in sealed bags. When my party raised the matter in the Chamber, the Minister said he would take our concerns on board and try to address it in the Bill. I do not think he has done that.

Does Deputy Kevin Humphreys wish to comment?

I am happy to comment later.

I thank the Deputy.

SECTION 1

I move amendment No. 1:

In page 3, subsection (4), line 23, to delete "Minister for the Environment, Heritage and Local Government" and substitute the following:

"Minister for the Environment, Community and Local Government".

Amendment No. 1 is a technical amendment to reflect the change in the Minister's functions.

Do any Deputies wish to respond? No.

Amendment agreed to.
Section 1, as amended, agreed to.
Section 2 agreed to.
NEW SECTION

Amendments Nos. 2 and 3 are related and may be discussed together. Acceptance of amendment No. 2 involves the deletion of section 3.

I move amendment No. 2:

In page 4, before section 3, but in Part 2, to insert the following new section:

"3.--Section 12(1) of the Act of 1987 is amended-

(a) in paragraph (a) by substituting-

"(i) "€8,000" for "£1,000" in both places where it occurs, and

(ii) "€800" for "£100",".

and

(b) in paragraph (b) by substituting-

"(i) "€800,000" for "£10,000", and

(ii) "€8,000" for "£1,000".".".

This simple amendment advocates an increase in the fines. We are well aware of problems being caused by breaches of various environment Acts and believe there should be a heavier penalty.

Amendment No. 2 proposes that the monetary amounts of fines or penalties under the Air Pollution Act be further increased beyond the significant increases I am already proposing. I will deal with subsections (a) and (b) of the amendment separately. Subsection (a) refers to the fines on summary conviction and proposes that a larger increase than that proposed by the Government be introduced. This is unnecessary as I am proposing to align the amounts with the balance provided for under the Fines Act 2010 which will allow them to be updated centrally to ensure they remain effective. The 2010 Act introduced a new system of categorised bands of fines for minor offences, a system that came into effect on 4 January 2011. The amounts for the categories of fine are as follows: class A carries a maximum fine of €5,000, class B carries a maximum fine of €4,000, class C carries a maximum fine of €2,500, class D carries a maximum fine of €1,000 and class E carries a maximum fine of €500. The improved system of fines is more practical, as the amounts can be periodically updated centrally by the Minister for Justice and Equality to ensure they retain their monetary value and their consequent deterrent power. Any changes made would then apply to all relevant legislation with the necessity of amending each individual Act or instrument.

Subsection (b) refers to the fine for conviction on indictment and proposes that a larger increase than that proposed by the Government be introduced to €800,000 rather than €500,000. The increase I have proposed, from €10,000 to €500,000, has been selected to ensure consistency with comparable amounts in other environmental legislation. This aims to provide a more consistent penalty system throughout our environmental legislation. The maximum fine permitted for conviction on indictment in legislation transposing EU directives is €500,000. Therefore, introducing this level of fine to the Air Pollution Act will bring it into line with the monetary penalties in other key environmental legislative measures that have originated as EU directives, for example, in the areas of waste and ground water regulation. Therefore, I do not propose to accept the amendment.

Is the Minister stating that the first part is being brought into line with the banding system and that the second part is being brought into line with EU regulations?

Amendment, by leave, withdrawn.
SECTION 3

I move amendment No. 3:

In page 4, lines 4 to 7, to delete paragraph (a) and substitute the following:

"(a) in paragraph (a)-

(i) by substituting "a class A fine" for "a fine not exceeding £1,000",

(ii) by substituting "a class E fine" for "a fine not exceeding £100", and

(iii) by substituting "equals €5,000" for "equals £1,000",".

Amendment agreed to.
Section 3, as amended, agreed to.
SECTION 4

Amendments Nos. 4 to 8, inclusive, are related and will be discussed together.

I move amendment No. 4:

In page 5, subsection 4, line 17, after "article 3(1)" to insert "or regulation 3A".

Section 4 in Part 2 provides for a new scheme of graduated fixed payment notices for breaches of the fuel regulations. These regulations, which are referred to in the Bill as the "Fuel Regulations" are the regulations banning the sale and distribution of bituminous or smoky coal in certain urban areas.

The amendments to section 4 are necessary to update the list of offences to which the fixed payment notice can be applied in order that new offences introduced in June 2011 by an amendment to the fuel regulations can be included. To achieve and maintain good air quality standards, the amending regulations require bituminous coal placed on the residential market to have a sulphur content of no more than 0.7%. This amendment will allow for a fixed payment notice of €1,000 to be applied by authorised persons for breaches of regulation 3A of SI 270 of 2011, namely, the placing on the market or on sale any bag or other unit of sale of bituminous coal with a sulphur content greater than 0.7% by weight.

We are discussing amendments Nos. 4 to 8, inclusive, together.

Is the intention to extend the number of locations to which this provision applies? In terms of enforcement, I live in what is designated as a smokeless fuel area. It has made a significant difference to air quality and respiratory problems have been greatly improved by the initiative, but there are those who breach the rule and I have never encountered anyone who has been fined or sanctioned. How are sanctions levelled and, if we are to add to them, what measures will be applied to ensure they are properly enforced? One can notice the difference between one house and the others.

We are gradually extending the areas to which the ban on bituminous coal and smoking coal apply. I agree with the Deputy that the ban has a major impact on air quality. Local authorities are responsible for enforcing the ban and on-the-spot fines are being levied to assist in penalising those who are in breach of particular regulations.

Given local authorities' staffing levels and the recruitment embargo, it is difficult to figure out what section in a local authority would do this work. People tend to light fires in the evening; it is an overnight activity. In most cases the ban is self-enforcing, in that surroundings will restrict burning, but I have a serious doubt about whether it is being enforced when people are in breach of it. Perhaps they are breaching it because they cannot afford to buy more expensive fuel, but I am not satisfied that there will be adequate-----

Responsibility for enforcing the ban has been devolved to local authorities. If the environment section of Kildare County Council has a lack of resources, that is a matter for the county manager. We are giving the authorities the legal power to enforce these regulations.

I just want to see legislation that works and I have my doubts about this provision.

Legislation will not be a problem. Enforcement may be a problem, but that is a matter for the local authorities.

The Minister will determine the recruitment embargo, but managers will be the ones dealing with it.

The manager also has access to all of the outlets that sell bituminous or smoky coal. They are the ones who know where these depots are and can inspect them at any time.

Amendment agreed to.

I move amendment No. 5:

In page 5, line 19, to delete "article 3(2), 4 or 6" and substitute the following:

"article 3(2), regulation 4A(1), 4B(1), 4C(1), 4C(2), article 4 or 6".

Amendment agreed to.

I move amendment No. 6:

In page 5, lines 21 and 22, to delete "a contravention of article 7" and substitute "a contravention of regulation 4A(2) or article 7".

Amendment agreed to.

I move amendment No. 7:

In page 5, subsection 6, line 33, after "1998)" to insert the following:

"(amended by the Air Pollution Act 1987 (Marketing, Sale and Distribution of Fuels)(Amendment) Regulations 2011 (S.I. No. 270 of 2011))".

Amendment agreed to.

I move amendment No. 8:

In page 5, line 35, to delete "article 3(1), 3(2), 4, 6 or 7" and substitute the following:

"article 3(1), 3(2), regulation 3A, article 4, regulation 4A(1), 4A(2), 4B(1), 4C(1), 4C(2), article 6 or 7".

Amendment agreed to.
Section 4, as amended, agreed to.
SECTION 5

I move amendment No. 9:

In page 5, to delete lines 39 to 45, and substitute the following:

"5.--Section 72 of the Act of 1996 is amended--

(a) by substituting the following subsection for subsection (3):

"(3) The amount of the levy shall be specified in the regulations under subsection (2) but shall not exceed an amount of 26 cent for each plastic bag supplied to a customer.".".

This is a small amendment on the proposed level of the plastic bag levy, which has been a significant success. It is not too many years since much of the countryside, every ditch and hedgerow, was decorated by plastic bags of various colours and types. It has been one of our good measures.

While the charge of 15 cent has probably outlived its time and should be increased, 70 cent is excessive and unnecessary. Revenue accruing from the levy has been put to good use and returned to local authorities to install bottle banks and make various environmental improvements. It is a welcome revenue stream for them, but the proposed 70 cent is excessive for customers and small businesses. Some small businesses must still use plastic bags for various reasons. It would be difficult for an outlet that I visit occasionally to sell what it does without using plastic bags. I have been recycling plastic bags since before it was fashionable. On these grounds, we are asking that the levy be reduced to 26 cent.

Amendment No. 9 proposes that the ceiling on the plastic bag levy be set at an absolute limit of 26 cent. The Bill provides that the levy may only be increased once in any financial year by an amount not greater than 10% of the existing levy at the time of the proposed change plus the change in the consumer price index since the last change, subject to a maximum levy of 70 cent. The 70 cent ceiling was set because it will enable sufficient flexibility to react to changes in consumer usage over several years. A ceiling of 26 cent would not allow this flexibility.

A regulatory impact analysis in 2008 projected that, even with the maximum change of 10% plus the change in the consumer price index, after five years the levy would reach 43 cent from its current level of 22 cent. Instead of needing to change the amount every few years, the upper limit of 70 cent will allow for the application of changes to the levy for a number of years to react, as necessary, to consumer behaviour. Accordingly, we have given ourselves flexibility. Therefore, I cannot accept the amendment.

We must be careful and not add to inflation. There should be a balance.

Amendment, by leave, withdrawn.

I move amendment No. 10:

In page 6, line 11, to delete "by which" and substitute "to which".

This amendment proposes to rectify an error in subsection (3B) of the Bill as published. Section 5 specifies the maximum amount to which the levy may be amended.

This is a technical amendment.

Amendment agreed to.
Section 5, as amended, agreed to.
SECTION 6

I move amendment No. 11:

In page 7, between lines 4 and 5, to insert the following:

"(b) in subsection (1)(a), by substituting “paragraph D1 or D5 of the Third Schedule” for “paragraph 1 or 5 of the Third Schedule”,

(c) in subsection (1)(b) by substituting “paragraph D1 or D5 of the Third Schedule” for “paragraph 1 or 5 of the Third Schedule”,”.

This technical amendment reflects changes in the numbering of the Third Schedule of the Waste Management Act 1996 on disposal operations. Following the transposition of the European Communities waste directive regulations of SI 126 of 2011.

Amendment agreed to.
Section 6, as amended, agreed to.
NEW SECTION

I move amendment No. 12:

In page 8, before section 7, to insert the following new section:

"7.--(a) The practice of incineration or thermal treatment of waste shall no longer be legal within this state.

(b) Sections 4 and 5 of the Waste Management (Amendment) Act 2001 are repealed.

(c) The making of a waste management plan shall be a reserved function of the local authority.”.

We have tabled this amendment because the practice of incineration or thermal treatment of waste is unnecessary, given the fact that we are achieving significant rates of reduction, reuse and recycling. The belief a few years ago was that, as a race of people, we would not be capable of making such quick progress. We have proven that wrong.

Incineration or thermal treatment has shown to be expensive. From a health point of view, the waste is being changed into a more toxic form in terms of airborne pollution and the residual ash after treatment, which must be disposed of. Overall, the practice is unnecessary. We are seeking to improve the image of Irish food and moving towards the objectives of Food Harvest 2020. One of our major selling points is that there are almost no incineration facilities in the State.

The first paragraph of Deputy Stanley's amendment No. 12, section 7(a), proposes to make illegal within this State a form of waste management which is legal under EU law. Where it reaches the required threshold it is deemed to be on the recovery tier of the waste hierarchy according to a priority order established by the waste framework directive 2008/98EC. Landfill, which is classed as disposal and below the recovery tier, would remain legal under this amendment. The amendment would, therefore, be contrary to the directive. In moving away from disposal, Ireland will require a range of alternative treatment options. To make one of those options illegal wold result in increased costs to the public and business and undermine our ability to provide such alternatives.

Paragraph 7(I) of the amendment proposes to repeal two sections of the waste management Acts dealing with waste management planning. It was previously found necessary to provide for the making of waste management plans by city and county managers as an executive function. I will be examining the issue of waste management planning as part of the development of a new waste policy which I intend to conclude by the end of this year.

In regard to the third aspect of the Deputy's amendment, it was previously found necessary to provide for the making of waste management plans by city and county managers as an executive function. That was because councillors refused to implement and ratify regional waste management plans. I wish to see the regional waste management plans continue, guided by strong national policy. I will examine again the issue of waste management planning and the appropriate role of the local authorities as part of the development of new waste policy and the reform of local government. Accordingly, I have no difficulty in having two aspects of matter reviewed in the context of various policy changes that I am contemplating towards the end of the year in waste and in local government reform. For legal reasons I cannot accept the Deputy's amendment. Therefore, I am not accepting the proposed new section 7.

Deputies Niall Collins and Catherine Murphy also wish to speak to the amendment.

I wish to comment on levies. We are all aware that the intent of a levy is to promote recycling, and rightly so. The point has also been made by those in the industry and outside that setting the level of the levy could potentially create several jobs in the recycling industry. That is an issue that must be borne in mind. On the question of imposing a levy on waste facilities, is it the Minister's intention not to apply any levy?

I do not intend to apply a levy at present for municipal waste.

On that issue, one of my concerns with the Bill, which I opposed on Second Stage, is the economics of the Poolbeg proposal given that Dublin City Council would have to meet a financial commitment if it did not satisfy the required 320,000 tonnes of waste. Following the court case, Dublin City Council no longer controls the waste market in the Dublin area, and it appears it is obliged to pay for something over which it has no control. That is incredibly dangerous in terms of the public purse. Perhaps I am misreading the position but that is my understanding. I would not be able to support the Bill on that one issue alone because taxpayers' money would become a subsidy to the incinerator if one the size proposed is proceeded with. For that reason I would support section 7.

I had not intended to comment at this stage but I do so because of the Minister's remarks. The lack of levies on incineration would distort the market. It will also possibly allow operators to challenge it in legislation and it will stop the development of the range of options he has mentioned. The Minister also said that for legal reasons he could not accept the amendment. I have here section 73 of the Waste Management Act, the EU directives referred to, the statutory instrument - the waste hierarchy is in there - and also the Fourth Schedule. Will the Minister point out the legal imperative, or provide a copy, that prevents him from imposing levies on incineration in those areas? That is critical because the Minister said there were legal constraints. Within the three documents which I have gone through at great length, I do not see where it is stated that the Minister cannot provide for levies. This is very restrictive on the Minister and reduces his powers if there is an imbalance in the market. Without levies on incineration there is a possibility of pulling down the hierarchy to the lowest common denominator, which will be incineration. It is vital the Minister has that option to keep a balance in the market, to ensure the hierarchy is upheld and that he has the power to introduce levies if and when he so needs. I ask the Minister to look again at the legal advice being given in respect of section 7 that it cannot be included in the Bill.

As this is Deputy Stanley's amendment I will return to him last.

I sympathise with Deputies Murphy and Humphreys in regard to section 7. The Bill, as drafted, proposes to introduce a levy on incineration which replicates the rates applying to landfill. Landfill is at the bottom of the waste hierarchy and incineration, which reaches the required threshold, is on the recovery tier. The section, as drafted, would be contrary to the waste framework directive which I signed on 31 March 2011. The regulatory impact assessment on which the proposal was based was predicated on a previous policy which sought to equate landfill and incineration. The rates and approach are inconsistent with the directive. Any alternative that I would propose would require a new regulatory impact assessment and consultation process. I want to assure the Deputies that I will bring forward, in the context of a waste policy later in the year, proposals to enshrine an opportunity for the Minister for the Environment, Community and Local Government to impose levies on incineration as part of that waste policy. Given the manner in which section 7 is drafted and because of what I have just said, I am not in a position other than to remove section 7.

Before Deputy Stanley-----

I would like to bring in Deputy Stanley.

I have the two documents here and while the Minister has given a very full answer, will he point out where the legal constraint is contained in either of those documents and on what page and on what section? That would help me more fully understand his remarks. I would appreciate it if the Minister would point out at a later stage the exact section because I have gone through them in recent days and cannot find them. That would be helpful.

I will be glad to do that for Deputy Humphreys.

The size of the proposed Poolbeg incinerator almost puts it out of the scope of being in the recovery tier because it gives the benefit of disposing of waste, as opposed to recycling and reusing it, and because of the quantity of waste that has to be supplied to the incinerator. It is extraordinary that it would be described as being in the recovery tier of the waste hierarchy. It would be helpful to have some guidance on that.

I note the officials are sorting out the pages on the sections.

I can understand from where Deputy Catherine Murphy is coming in regard to the question of capacity. That has been well and truly examined by Mr. John Hennessy, senior counsel. He came down on one side over the other on various matters in that review. The reality is that a facility has been proposed, which is a matter for the contracting parties and not one for me. The capacity would be for the disposal of 650,000 tonnes of waste. I am sure those contracts would not proceed unless it was thought that they would be implementable. A capacity for the disposal of 200,000 tonnes of waste is the only capacity that is available or likely to be available this year in regard to the waste-to-energy facility in County Meath. The deletion of the levy on the incineration is not driven by a consideration of any particular project. It simply does not make sense to increase a levy at this time on waste disposal while introducing a levy on one of the main alternatives, one which is higher in the waste hierarchy. I am sure the Deputy would not want me to increase the costs for householders by adopting such an approach. It should be remembered that we are dealing with only a small amount of waste that is subject to incineration this year and we do not know what will be the status of another contract between Dublin City Council and a partner that has been in the ether for a considerable period.

I am conscious of the remarks of Deputies Catherine Murphy and Kevin Humphreys on this issue, the sensitivity of it and the fact that there is a requirement to have a level pitch. However, we are faced with an enormous difficulty in terms of the need to divert from landfill by 2013. Municipal waste will be an issue in that we will not have anywhere to dispose of it if we do not have the necessary infrastructure in place.

The Minister is aware-----

This debate is straying into section 8. As this is Deputy Stanley's amendment, he may wish to respond at this stage and I will bring Deputy Kevin Humphreys back in.

I wanted clarification on that point regarding Deputy Stanley's amendment because when the mover of an amendment responded earlier, no other member was able to speak on the amendment after that.

I will allow Deputy Stanley to speak on it and then I will call the Deputy Kevin Humphreys. Given there has been such an extensive debate on this, the Deputy may wish to ask some questions before pressing the amendment.

On the matter of the announcement made by the Minister, it is the first time that I have heard that there will not be levy on waste to be disposed of by incineration at least in the short term. If I heard him correctly, he said under this legislation he will not be able to bring in a levy but he will be able to do so under future legislation and that he will do so.

That has the potential to create huge distortions in the market. The landfill levy has been increased and there must be a levy on landfill. I have concerns about the level to which it has been increased, and I mentioned that to him in the Dáil recently. The concern in this respect is that ordinary taxpayers will end up subsidising the construction of these facilities and also subsidising them by virtue of the fact that the volume of waste produced will be insufficient to feed some of these hungry beasts, which was a point made by Deputy Catherine Murphy. There will not be enough of an incentive created for the producer. We are tackling this problem at the wrong end. This is like mopping the floor while the pipes are still leaking. We have not fixed the leak or even called in the plumber. Instead of tackling it at the production end, we are tackling it at the end of the process when the problem has been created. What we are going to do is burn the problem and thereby create another problem. The taxpayer will pay for that in terms of the impact on health, levies and in various other ways. I am not having a go at anybody in saying that I sincerely believe we need a new approach. This proposal is not economically or environmentally viable and what is proposed is ludicrous from a health perspective. We are tackling the problem the wrong way around.

On the matter of the reserve functions of local authorities, which I thought was being dealt with under the sections, local authority members were prepared to make decisions that senior civil servants and Ministers did not want made in the earlier part of the last decade. That is the factual position. It was not that local authorities were not prepared to make a decision. They were not prepared to usher in incineration and ridiculous waste management plans. The Minister can examine those regional waste management plans and many of the people who were involved in drawing them up would say they are not viable. Many of the people who were in favour of them would say they were not viable. It was more or less the same company that drew them up throughout the State. It cut and pasted the plan for each different region.

It has now been shown those plans would be unviable. They could not work. Local authority members were right at the time to reject them. I hope the Minister during his term of office does not follow the precedent set unfortunately by, I believe, the former Minister, Noel Dempsey. When he did not get the result he wanted, he took the power from elected councillors and gave it to a group of unelected county managers. It is a dangerous road to go down. There was a great degree of willingness among councillors to embrace change and push the reduce, reuse and recycle agenda. The Minister will know this from meeting councillors and members of local communities. Irish people are prepared to go much further in this respect. We should be examining different options such as those that have been adopted in New Zealand and pursuing a zero waste policy. While I realise it is not possible to have zero waste, that should be the target. We can drive this agenda much further without incineration. Our food exports are extremely important and we can promote our produce as coming from an island that is incineration free.

I will next call Deputies Niall Collins, Kevin Humphreys, Catherine Murphy and then the Minister, if he wishes to respond, and then Deputy Stanley, if he wishes to press his amendment.

Apart from the environmental reasons for not proceeding with this Poolbeg project, which we know, support, and understand, can the Minster explain the economic logic for proceeding with it at present? There is a "put or pay" clause in the contract and he mentioned earlier that the contracting parties will have the responsibility and will have to carry the can but, ultimately, it is the State and the taxpayer who will have to pick up the difference should one exist. Should we not step back from it?

We cannot step back from it.

I will call on the Minister to respond when the other Deputies have spoken. Has Deputy Collins concluded?

The Minister can respond to the Deputy's question at the end. I call Deputy Kevin Humphreys.

While the location of the proposed Poolbeg incinerator project happens to be in my area, this is a national issue. It is disappointing that to this date nobody has seen the full contract or the full report, the Hennessy report; the commercial sensitivity of the project is the argument we hear constantly rolled out. Land is only now being purchased for the incinerator project at inflated land prices.

I fully support the element of the landfill levy as we must divert from landfill. I am extremely concerned about the unlevel playing pitch that will be developed by the lack of incineration. The Minister said that he will bring in a Bill in the autumn that will address the imposing of a levy on incineration. If I have misunderstood the Minister, he might clarify that. Under the directive, we must divert 50% of waste from landfill by 2013 and reduce the percentage to 35% by 2016. According to the trends to date, we are on target for achieving those target figures and especially with the downturn in the economy, we will achieve them. I will conclude on this point because the next point to be dealt with-----

Deals with the same issue.

Yes. I will not speak on that. From my research on this matter, section 7 stands up until one sees an alternative legal opinion.

Poolbeg is not in my area but it is an issue of relevance to the public purse and it affects counties on the periphery of Dublin. For example, the Kill landfill in County Kildare has taken much of Dublin's waste and Bord na Móna operates another large landfill in Drehid in the north of the county. I understand the proposed incinerator will take approximately 600,000 tonnes of waste, of which Dublin's local authorities have agreed to supply 320,000 tonnes. However, they only have control over 82,000 tonnes because they lost a court case taken against them on grounds of competition in the waste market. They will be obliged to pay €350 million to the operators of the incinerator over its lifetime if they fail to deliver the tonnage agreed. Where will that money be found? Will it come from Dublin City Council's own resources in terms of commercial rates or other funding or will it take the form of a subvention from the Department of the Environment, Community and Local Government? That is my understanding of the matter and I ask the Minister to tell me if I am wrong. It is a serious problem if such an obligation is being put on the State.

We are way behind in terms of providing facilities. In my area there is not even one civic amenity site. We are not short of sites but money is required to provide the amenities. In terms of the waste hierarchy, people are not being given a choice and waste will continue to go to landfill or incineration if the alternatives are not available.

The public purse will come into play one way or the other. If we do not achieve our landfill targets in the period 2013-16 we will have to pay fines to the European Commission. The EPA advises me that we have no hope of meeting our targets at present because our waste infrastructure is unable to cope with what we need to do. Am I to allow the public purse to pay fines to the European Commission or else develop an infrastructure that allows us to meet our targets?

I will undertake to provide Deputy Humphreys with the legal advice on the waste hierarchy by Report Stage. I also undertake to outline my intentions for waste policy and ensuring levies are applied to incineration under whatever legislation emerges from that policy announcement. In the context of section 7, I draw members' attention to Article 4 of the directive on waste hierarchy, which requires member states to ensure that the process of developing waste legislation and policy is fully transparent and observes existing national rules about consultation and involvement of citizens and stakeholders. This refers to the regulatory impact assessment that I must undertake to demonstrate that I have properly transposed the directive by 31 March 2011. I am taking these steps on the basis of legal advice that section 7, as drafted, is not able to meet the objectives we all share. I ask for my colleagues' goodwill not necessarily in respect of this legislation but on a future occasion in order to address the issue.

In regard to Deputy Collins's comments, I am standing back from the process because it is a matter between the two contracting parties and it is up to them to decide what they want to do in the context of existing waste policy. If they proceed, one set of circumstances will ensue and if they do not we will have to adopt a new policy position to meet our waste infrastructural requirements. The Department and the Oireachtas are caught in a catch-22 situation in respect of our waste management infrastructure.

The €350 million in compensation is a figure that my predecessor picked out of the air. I do not know how Deputy Catherine Murphy was duped into accepting it.

How much is it? Has the Minister quantified it?

I do not see it being anywhere near that figure in terms of risk. A substantial amount of municipal waste is currently available for all sorts of treatment. The national waste prevention programme supports businesses and the public in reducing the amount of waste produced. The commercial food waste regulations require segregation of waste at source into beneficial uses such as composting and anaerobic digesting. The market development programme for waste resources, RX3, is aimed at supporting the development of new products from recyclable resources. These national policies are being implemented to reduce the quantities of waste that go to the top of the hierarchy. The Department provides funding of €12 million per year to support civic amenity and recycling sites. We are doing a great deal to achieve our objectives at lower levels of the waste hierarchy but, ultimately, we will not be able to deal with a proportion of municipal waste and we will be liable for EU fines if we do not develop a waste infrastructure.

Will Dublin's local authorities be required to pay compensation out of their own funds and is it part of the contract?

It is breach of contract.

They do not have control over the amount of waste generated but if they breach the contract they will incur a financial obligation.

Has that financial obligation been written into the contract and what is the extent of it if it is not €350 million?

I am not party to the contract and I do not know what is in it. That is a matter for Dublin City Council and its partners.

Dublin City Council or Dublin's local authorities will have to make up the shortfall.

That may arise but I cannot predict the future. I expect that everybody will honour the contract.

They do not have control over the waste.

I cannot be conditional about it. All I can say is that the contract is not in my gift. It is a matter between two contracting parties and I can only outline the policy.

It is amazing that the members of Dublin City Council, of whom I believe Deputy Kevin Humphreys was one, have not been allowed to see the contract. It appears the Minister has not seen the contract either. Has his officials or anyone else seen it?

It is not appropriate for officials to answer for their Minister but the Minister has not seen it.

It appears that taxpayers and rate payers are being railroaded into subsidising the project but nobody is being held to account for it.

To return to the proposed amendments, we spent the last half hour discussing waste infrastructure. I am trying to get the Minister to address the issue of waste minimisation. We need to hit the production of waste because up to 80% of the waste being produced is unnecessary. We could make significant reductions very quickly by building on the progress we made on recycling and reuse. Repak is doing valuable work in this regard but the one area we are not pursuing with sufficient vigour is waste production.

In respect of our proposed new section 7(c), I accept that nobody likes to devolve power and once control is taken away from councillors it is difficult for them to get it back. However, councillors have been reduced to bystanders which is unfair to them. I have been in that difficult situation for the past eight or nine years. We should seek ways of involving councillors further in waste policy because when decisions are made locally, they stick. We should not be afraid of giving councillors powers, at least in some areas of waste management.

I agree totally with Deputy Stanley that there should be a devolved role for local authorities to make these plans. The reason the Minister of the day removed that power is that the councils would not make those plans. I did not agree with it at the time.

They would not make a plan he wanted. The Minister of the time, Mr. Noel Dempsey, did not get the result he wanted.

I did not interrupt the Deputy. I did not agree with the Minister at the time so I am on the Deputy's side. There should be devolved function at local level, and I intend to ensure there is. The Deputy asked what we are doing to reduce the amount of waste and we are currently considering a producer responsibility levy on packaging. There is consultation ongoing and we will bring proposals to the committee in the autumn to reduce unnecessary packaging by imposing that levy on producers. I agree with the Deputy that we should go this way. There will be a residual that must be dealt with.

Nobody wants to open a new landfill in Laois, Kilkenny or Kildare as we have had enough of that toxicity for the environment and groundwater quality. Waste infrastructure must be developed and at the same time we are using every policy instrument possible to reduce waste from producer level. We also hope to develop programmes with householders and businesses to ensure we have the least possible opportunity for waste to be at the end of the hierarchy for disposal to landfill. Directives will not allow us to continue with landfills and we do not want to pay European Union fines when we could develop waste infrastructure.

I will address this again on Report Stage. I look forward to the Minister's proposals on targeting the problem at source.

Amendment, by leave, withdrawn.
Section 7 deleted.
NEW SECTION

I move amendment No. 13:

In page 10, before section 8, but in Part 3, to insert the following new section:

8.—(1) Section 74 of the Act of 1996 is amended—

(a) in subsection (7) by substituting “72 or 73” for “72 or 74”, and

(b) in subsection (9) by inserting the following paragraph after paragraph (k):

"(ka) to facilitate, assist, support or promote initiatives undertaken by international organisations or other persons outside the State in respect of the protection of the environment or sustainable development or both,”.”.

This amendment corrects a typographical error in the Act and underpins in primary legislation provision for the payment from the fund of moneys to international organisations and other persons outside the State in respect of protection of the environment, sustainable development or both.

Are there examples of who may fall into that kind of category?

Payments are currently made to the United Nations Environment Programme. The environment fund of the United Nations environment programme is voluntary and provides additional financing for environment programmes. It aims to encourage partnership in caring for the environment. These are the principal sources of contribution.

Amendment agreed to.
SECTION 8
Question proposed: "That section 8 be deleted."

Many of us are new so could the procedure be explained?

It is a bit like coming in on the left and out on the right. The amendment puts in a new section and the old section is to be deleted. We had an issue in the previous Dáil session when the Government members of a finance committee lost their own amendment and an Opposition amendment was carried. It created all sorts of consternation because the Ceann Comhairle wanted the provision removed. We must use this methodology to ensure that does not happen. It is convoluted.

Deputy Stanley and I are quite new. Could the procedure be outlined to us in writing so it can be clear? Otherwise we could make a mistake. I am leaving now to attend another meeting. Could we ensure that sub-committee meetings do not clash as it is difficult to jump from one meeting to another?

We will do it to the best of our ability. It is not always possible but I take on board the Deputy's comments.

Question put and agreed to.
SECTION 9
Amendments Nos. 14 to 16, inclusive, not moved.
Question proposed: "That section 9 stand part of the Bill."

As noted earlier, the three amendments for this section have been ruled out of order.

May I make a quick comment?

I gave the Deputy the opportunity to refer to them at the beginning of the debate.

Question put and agreed to.
NEW SECTIONS

It is proposed that amendments Nos. 17 to 20, inclusive, will be taken together.

I move amendment No. 17:

In page 11, after line 9, to insert the following new section:

10.—Section 70 of the Environmental Protection Agency Act 1992 is amended in paragraph (a) by substituting “fourth” for “fifth”.”.

This proposes to amend the Environmental Protection Agency Act 1992 to require the EPA to produce a state of the environment report every four years, as opposed to every five years, which is the current requirement. The amendment would put this practice on a statutory footing and is a technical measure. It was approved in December 2010 and this amendment will also fully implement article 5 of the Aarhus Convention. In practice, the EPA produces a state of the environment report every four years so the amendment puts the practice on a statutory footing.

Amendment No. 18 proposes the deletion of section 62 of the Waste Management Act, which has never been used. It provided powers to the Minister to give effect to community Acts with regard to waste by regulations. There is a risk that any such risks may be open to legal challenge. As a clear alternative to making regulations exists under the European Communities Act 1972 as amended, it is considered that the prudent approach is to delete section 62 of the Waste Management Act and rely on the provisions of the 1972 legislation.

Amendment No. 19 is a savings and transitionals amendment to ensure the repeal of sections 72 and 73 of the waste management Acts shall not operate to affect regulations in operation up to the time of that repeal.

Amendment No. 20 is a technical amendment to incorporate the Environmental Protection Agency Act 1992 in the Title of the Bill. This is necessary as a result of amendment No. 10, which amends that Act.

There was a recent review of the Environmental Protection Agency. Is it intended to bring forward substantial changes on foot of that? I do not know if it is desirable but the Environmental Protection Agency does not have the power to close a premises if it is a continuous offender. There may be a reason for this if there is a movement towards compliance. Is it intended to bring further and more substantial powers to the agency?

We are reviewing the work of the Environmental Protection Agency. A draft report has been sent out for public consultation and submissions. If the Deputy wants to make a submission, I would welcome it. We might give the sub-committee an opportunity to examine the report. If it makes its ideas known to me at that time, it would be most welcome. If legislation is necessary to give effect to what Deputy Murphy is saying, I will be very sympathetic to it.

Are we on amendment No. 19?

We are considering amendments No. 17 to 20, inclusive.

Deputies referred to the Waste Management (Landfill Levy) Order. I know we spoke earlier about the landfill levy, which contributes towards the after care and remediation of landfill sites. In that context, is it of concern that the usage of landfill sites has been reduced? Is there another structure in mind, as we move into the area of incineration, to facilitate the remediation of landfill sites?

This is a substantial problem, as the Deputy is aware. Many legacy landfill sites are not getting care or attention from local authorities that do not have the money to look after them. The Department of the Environment, Community and Local Government has to take a more active role in making landfill sites safe from a groundwater and leachate point of view. In addition, it needs to commercialise some of the investment the State has made in sites that are now dormant and in need of rehabilitation or remediation. I have asked officials in the Department and in the EPA to examine all the sites around the country to see what can be done to make them safer, to ensure we meet our environmental obligations and to get a refund on some of the investment we have made in remediating sites. We need to discuss openly with the local authorities the uses that can be made of landfills in specific areas. The GAA is interested in acquiring a landfill site in my local area to develop some pitches. Obviously, an investment in the remediation of that site will have to be made before it can be used for such recreational purposes. That is the sort of thinking that is happening at the moment. A great deal of money from the environment fund has been spent in Deputy Murphy's constituency, from a health and safety point of view, as part of the enforcement of a legal requirement. We would have preferred to spend the money on other matters. I am sure she was referring to the site in question earlier when she spoke about the powers of the EPA.

It is one of the places I was talking about. There is more than one of them, unfortunately.

Yes, it is unfortunate.

Could the Minister not have increased the levy at a faster rate than is proposed?

I wanted to give some certainty to the market with regard to what I am doing over a three-year or four-year period. People make significant investments in these industries. I suppose I have made a reasonable stab at filling the landfill levy. If the landfill approach does not work, no alternative waste infrastructure is available to me as I try to ensure we meet our waste requirements over the next three years. The current approach might be contrary to the spirit of what we have transposed in the directive, but we cannot divert from it until an alternative infrastructure is developed.

Is it possible for me to introduce an amendment to the provision in the Bill which provides that bags of solid fuel must be sealed and labelled? I am asking that question because I am new to this process.

That can be done on Report Stage.

The Minister accepted what we said about the matter on Second Stage in the Dáil.

An amendment can be tabled on Report Stage.

I will do that.

Is it possible to table an amendment on Report Stage to deal with a section of the Planning and Development Act that has not been discussed today or on Second Stage? Do I have to give notice today of my intention to do so? Is it wide open?

Standing Orders provide that one needs to give four days' notice to the bills office if one plans to propose an amendment. It depends on the Stage on which the Bill is being discussed.

Does it have to be flagged here today?

No. The Bills department of the Deputy's party will advise him of the appropriate sequencing.

I would like to advise Deputy Stanley that since the air quality regulations were introduced in June, all bags that are sold inside or outside the banned areas have to be sealed.

That applies inside or outside the banned areas.

Yes, it has to be in sealed bags.

In that case, half the country is working illegally. It is a simple and basic problem.

I hope people are not using too much coal these days.

I agree with the Minister in respect of coal. One cannot tell the difference between smokeless and non-smokeless coal by looking at it. We agree with the Minister that coal needs to be clearly labelled in sealed bags. There is a problem with firewood and peat, however. An exception needs to be made in those cases.

The Deputy can table an amendment on the matter.

Amendment agreed to.

I move amendment No. 18:

In page 11, after line 9, to insert the following new section:

"11.—Section 62 of the Act of 1996 is repealed.".

Amendment agreed to.

I move amendment No. 19:

In page 11, after line 9, to insert the following new section:

"12.—(1) The repeal, under section 5(c), of subsections (7) and (8) of section 72 of the Act of 1996 shall not operate to affect—

(a) regulations under section 72 of the Act of 1996 that are in force immediately before the commencement of that repeal, or

(b) the amount of the levy specified, pursuant to section 72(3) of the Act of 1996, in those regulations—

(i) that is applicable immediately before the commencement of that repeal, and

(ii) provided for in regulations under that section made after the coming into operation of the Waste Management (Environmental Levy) (Plastic Bag) Order 2007 (S.I. No. 62 of 2007).

(2) The repeal, under section 6(d), of subsection (9) of section 73 of the Act of 1996 shall not operate to affect—

(a) regulations under subsection (1) of section 73 of the Act of 1996 that are in force immediately before the commencement of that repeal, or

(b) the amount of the levy specified, pursuant to

(i) that is applicable immediately before the commencement of that repeal, and

(ii) provided for in regulations under that section made after the coming into operation of the Waste Management (Landfill Levy) Order 2010 (S.I. No. 13 of 2010).".

Amendment agreed to.
TITLE

I move amendment No. 20:

In page 3, lines 8 and 9, to delete all words from and including "THE" in line 8 down to and including "1997;" in line 9 and substitute the following:

"THE ENVIRONMENTAL PROTECTION AGENCY ACT 1992; THE WASTE MANAGEMENT ACT 1996; AND THE FREEDOM OF INFORMATION ACT 1997;".

Amendment agreed to.
Title, as amended, agreed to.

Pursuant to Standing Order 131(3), the clerk will report to the Dáil that the sub-committee has amended the Title. I thank the Minister, Deputy Hogan, and his officials for attending today's meeting.

When is it proposed to take Report and Final Stages of both Bills we have considered today?

Next week.

They will be dealt with on different days next week.

How far in advance of Report Stage should we table our amendments?

They should be in by Friday at 11 a.m.

Bill reported with amendments.