Dáil Éireann díospóireacht -
Wednesday, 20 May 1987

Vol. 372 No. 11

Air Pollution Bill, 1986 [Seanad]: Committee Stage.

Sections 1 to 5, inclusive, agreed to.

SECTION 6.

Minister for the Environment (Mr. Flynn)

I move amendment No. 1.

In page 7, lines 1 to 10, to delete subsection (2) and substitute the following:

"(2) In this Act ‘existing industrial plant' means industrial plant—

(a) in respect of which a permission under Part IV of the Local Government (Planning and Development) Act, 1963, is granted prior to such day (in this subsection referred to as `the relevant day') as may be prescribed by the Minister, or

(b) which is, on the day immediately prior to the relevant day, or was, at any time during the period of twelve months ending on the day immediately prior to the relevant day, used for the purposes of, or incidental to, any industrial process specified in the Third Schedule, other than industrial plant which is an unauthorised structure or the use of which constitutes an unauthorised use.".

This amendment is designed to change the references in the Bill to 1 July 1987 with the relevant day to be appointed by the Minister for the Environment. EC Directive 84/360 requires licensing of industrial plant emissions to be brought into force by 1 July 1987. It would be our intention to do this if at all possible and that is the reason for the amendment. I request that it be accepted.

Amendment agreed to.

Section 6, as amended, agreed to.

SECTION 7.

Mr. Deenihan

I move amendment No. 2.

In page 8, subsection (1) between lines 8 and 9, to insert the following paragraph:

"(d) in the case of an urban district council, one which is operating in its administrative area as a controlling, licensing and monitoring authority, and".

The reason I put down this amendment was that certain problems have arisen recently in Listowel regarding the control of both water and air pollution. Unfortunately the local urban district council seem to have been singled out by the local people because of the lack of control and proper monitoring of both water and air pollution. Under the present legislation the urban council have no authority to act. It seems a contradiction that while the urban council are the planning permission authority, nevertheless they are not the licensing authority. This certainly has been the case in Listowel, where the urban district council are experiencing problems at present with an industrial plant which is burning material from Birmingham in England which would not be allowed to be burned there because of local controls. The urban council are totally powerless to act. I realise that if the urban district council were to be effective in monitoring air pollution they would need a great deal of expertise. However, I feel the local resident engineer could provide the service and fulfil this function to some extent. I feel that local urban councils should have a much greater say and should act in conjunction with the county council or local authority in monitoring local plants. Could I point out that the urban council would be more aware and have greater local feedback on what is happening as most of the problems arise from plants located within their area. I would like the Minister to consider this request as I am sure this matter is a source of much concern not only in Listowel but in the country generally.

Mr. Flynn

I thank Deputy Deenihan for making his contribution on this section. He spoke with conviction and I can understand his dilemma in the matter. I appreciate the local concerns which have prompted him to put down this amendment. We have already received in writing Deputy Deenihan's detailed case on Listowel Urban District Council, making the point which he has uttered for them here today.

The Bill does not exclude the possibility of an urban district council exercising control or functions under this legislation. Section 21 will allow the Minister by order to assign functions to a person or a body of persons other than the county councils and major urban authorities who will normally be the principal authorities operating under the Bill. If a convincing case can be made to the Minister of the day that a particular urban council would be better fitted than the county council to administer the Bill in its own area, then it will be possible for the Minister to accept that case and make the transfer order. I would see no objection to that in particular circumstances where a good case can be made. However, the Bill establishes as normal practice, except for major urban areas, that the county council's functions will extend over the whole of the administrative county. This is following the trend of all major environmental and local government legislation over the past decade.

The Local Government (Water Pollution) Act of 1977, the Waste Management Regulation of 1978 and the Fire Services Act of 1981 have worked reasonably well without any great difficulty. The rationale behind the trend is that specialised environmental legislation often embodying EC related provisions will make more complex demands on local authorities in terms of staffing and equipment. It would be unrealistic in the majority of cases to expect urban district councils to be able to meet the demands that will be placed upon them in a satisfactory way or without excessively burdening their commercial ratepayers. I am very conscious of that. If they were to be designated without taking cognisance of their financial difficulties, we could end up with the Act not being utilised in the way intended. Accordingly, reluctantly I cannot accept the amendment which is expressed generally by the Deputy. It would immediately burden all urban district councils with complex regulatory duties under this Act. I am not convinced that they are geared for it, either staffwise or from a financial point of view. It is possible in certain circumstances, if the position so dictates, that the Minister can transfer the power under the Act to an urban district council. While I understand the conviction with which the Deputy has made his case, I ask him to take it in good faith that this is possible.

Mr. Deenihan

I thank the Minister for his reply. Certainly, I understand the problems that would be involved if this function were given to the urban councils. Indeed, it will be very difficult for the county councils to implement the regulations proposed. That will involve much more staffing and procedure than previously experienced. However, it is very important — and I am glad the Minister made the point — that the local urban council can play a very significant role in ensuring the success of this Air Pollution Bill.

Sometimes it is very important to be on the spot to monitor what has happened. By the time the local authority officers get to the source of the pollution it may be cleared away, be it air or water pollution. The reason then may not be too evident. Local observation and evidence can be very important in bringing about prosecutions. This has been the experience in Listowel where the urban council have had a very frustrating time in trying to deal with a local problem. In withdrawing my proposed amendment, I fully appreciate the difficulties that would be involved if this function were granted to the urban councils.

Mr. Flynn

I thank the Deputy for understanding the position as outlined to him. He is quite right; it will even cause some difficulties for county councils but these are not insurmountable. As far as I am concerned, it would be the responsibility of those local authorities to appoint special people to carry out the tasks that will be necessary under this legislation. This cannot be done unless they are prepared to co-operate in that way. I expect they will appoint the necessary special people to carry out surveys so that those special control area orders can be put in place if demanded under the legislation. I expect full co-operation and it has already been indicated to me that that co-operation will be available from county councils and major authorities.

Amendment, by leave, withdrawn.

Section 7 agreed to.

Sections 8 to 13, inclusive, agreed to.

SECTION 14.

An Ceann Comhairle

Here we have a number of amendments in the name of the Minister. May I suggest that we debate together amendments Nos. 3, 4 and 5? Is that satisfactory? Agreed.

Mr. Flynn

I move amendment No. 3:

In page 11, subsection (2), line 28, to delete "or in a case of urgency".

The background to amendments Nos. 3, 4 and 5 is the considerable disquiet expressed during the Bill's Seanad passage that the power of entry to private dwellings contained in section 14 is excessive. In moving Second Stage of the Bill in the House, I undertook to examine whether there was any way to reconcile the need for inspection under the Bill with the right to privacy in one's own dwelling. I regard that as being an important matter. The spokesperson opposite will remember that during Second Stage contributions.

These amendments have been drawn up to offer some moderation in response to the commitment I gave on the provisions of section 14 in relation to private dwellings. Amendment No. 3 will remove the immediate power of entry without agreement of the householder in a case of urgency. That might be important. To balance this concession to domestic privacy, amendment No. 4 provides that entry may take effect following 24 hours' rather than 28 hours' notice. Finally, in amendment No. 5 it is intended to make it clearer that the powers of an authorised person upon entry must be exercised with discretion. I regard that as important. Any time anybody gains entry into the private dwelling of an individual he or she must do it with discretion; that is the reason for amendment No. 5. I should like to think Deputies agree with the benefit of these amendments.

Section 14 now strikes the right balance between the requirements of meaningful supervision of the Bill and the rights of householders. I have been very conscious, in considering this and in having consultations with individuals on this matter, of the need to try to get that right balance in so far as the privacy of one's domestic dwelling and the need for entry so as to establish what has to be done by way of remedy are concerned.

Mrs. Doyle

The Minister has gone some way towards allaying the fears of Members of this House who expressed concern in relation to the whole sensitive question of entry into private dwellings. I still have, at the back of my mind, a niggling doubt as to whether we have the correct balance between the right of the private dweller, with the sensitivity of this whole area, and the common good. Have we sufficient power to take immediate action if there is reason to believe a private dwelling is causing pollution or nuisance and where a local authority or an authorised person think action is required? In my view 24 hours notice is a long time if serious pollution is being caused by a private dwelling. I accept the Minister is trying to get the balance right between entry to a private house and reasonable notice but I should like to get an assurance from him that in the event of serious pollution the powers that be will not have to stand aside for 24 hours before they can deal with it.

Mr. Flynn

I appreciate the Deputy's concern. We have to get the balance right. If there is a nuisance that must be attended to immediately and if there is no objection by the party involved entry will take place there and then. It is only where a serious objection is raised that it is necessary to give some time. In the case of a major nuisance such as that referred to by the Deputy, the right of entry can be immediate under Part II of the Bill. That provision allows for immediate inspection. It was while we were wrestling with that balance and trying to accommodate the views of Members that some of them felt that what we were doing was too excessive. In the Seanad and in this House concern was expressed that we were taking powers over and above the norm, particularly when we were interfering with a traditional right that people have valued very highly. The provision may not satisfy everyone but in my view it is a nice balance. The Deputy can rest easy because it is not the intention to diminish the power of the legislation. However, we want to give that little bit of flexibility to accommodate the right of people to their own property.

Mrs. Doyle

Am I right in thinking that there is a precedent for allowing immediate right of entry to private dwellings under other legislation, that it has worked effectively and has not caused any problems in the sensitive area of right of entry to private dwellings? Why is it felt necessary to depart from that precedent given that it may be necessary to deal urgently with a matter?

Mr. Flynn

Section 27 accommodates the matter the Deputy is anxious about, the need to deal urgently with an outbreak of pollution.

Mrs. Doyle

I am thinking of the health legislation which has a right of entry. That legislation has been in operation for some time and has not caused problems.

Mr. Flynn

That legislation has been in existence since 1878.

Mrs. Doyle

It has been well tried and there have not been any problems.

Mr. Flynn

Reasonably well tried and it does not require any adjustment by us. It is satisfactory and accommodates the points made by the Deputy.

Mr. G. Brady

It is important that the provision includes premises used for business and private purposes. In many cases in Dublin a business is carried on in the back garden of a private dwelling. I am thinking of lead smelting, and dangerous pollution of that type, that can do serious damage to the health of people. Will the 24 hour limit apply to business conducted in private dwellings? It is imperative that the authorities should have the right to enter such premises if it is discovered there is pollution.

Mr. Flynn

Gardens, or any other part of a premises, are covered in section 7. I agree it is important that any part of a property where an offence is likely to be committed should be included.

Amendment agreed to.

Mr. Flynn

I move amendment No. 4:

In page 11, subsection (2), lines 29 and 30, to delete "48 hours", and substitute "24 hours".

Amendment agreed to.

Mr. Flynn

I move amendment No. 5:

In page 11, subsection (4), line 42, to delete "as he considers necessary for the purposes of this Act", and substitute "as he, having regard to all the circumstances, considers necessary for the purposes of this Act".

Amendment agreed to.

Section 14, as amended, agreed to.

Sections 15 to 23, inclusive, agreed to.

SECTION 24.

Mr. Flynn

I move amendment No. 6:

In page 16, subsection (2), line 2, to delete "to any person".

This is a drafting amendment. Apparently the phrase "nuisance to any person" in section 4 is not fully accurate having regard to the common law meaning of the word "nuisance". This can also include nuisance to land and the section, as amended, will only refer to "nuisance".

Amendment agreed to.

Section 24, as amended, agreed to.

Section 25 to 27, inclusive, agreed to.

Amendments Nos. 7 to 10, inclusive, not moved.

Section 28 agreed to.

SECTION 29.

Mr. Flynn

I move amendment No. 11:

In page 19, between lines 2 and 3, to insert the following subsection:

"(2) In this section `incident' includes an accidental emission.".

The Federation of Irish Chemical Industries have suggested to us that the term "incident" in section 29 should be amplified. This amendment attempts to do that and makes it clear that one of the main things referred to in the section will be the so-called fugitive or accidental emissions. I hope it accommodates the concern of the federation and is acceptable to all concerned.

Amendment agreed to.

Section 29, as amended, agreed to.

Sections 30 to 33, inclusive, agreed to.

SECTION 34.

Amendment No. 12 not moved.

Section 34 agreed to.

Sections 35 to 38, inclusive, agreed to.

SECTION 39.

An Ceann Comhairle

Amendments Nos. 13 and 14 are consequential and can be debated together.

Mr. Flynn

I move amendment No. 13:

In page 25, subsection (2), between lines 20 and 21, to insert the following paragraph:

"(a) the incidence and cause of air pollution in the area, and".

This amendment is designed largely to satisfy concerns expressed by the Coal Information Services that the Bill did not clearly enough require local authorities to identify the source of air pollution in an area before proposing an order under section 39. This amendment adds to the list of considerations to which local authorities must have regard before making the order. It makes it quite explicit that the first factor for consideration is the incidence and cause of air pollution in the area. I hope the amendment will satisfy those who advocated it and that proposed orders under this section will be subject to fair standards of justification. I have spoken to the people involved in this matter and I hope they will accept this as a reasonable response to what they thought was a problem.

Mrs. Doyle

The Minister has been very reasonable in trying to meet this body's difficulties with certain sections of the Bill to date. It is quite reasonable to assume that if there is a major problem in a localised area, it need not necessarily be the type of fuel used which is causing it at any specific time. Even without this amendment, I have no doubt that a local authority would be in a position to be able to consider the situation sufficiently to recognise if pollution was caused by an isolated incident with an industrial plant or by the type of fuel being used and would be able to proceed accordingly. The amendment proposed by the Minister clarifies the matter and if it serves to give peace of mind and some comfort to the professional body concerned, provided fair standards are used all round, it is very reasonable and I have no problem in accepting it.

Mr. G. Brady

There is great difficulty in many cases in identifying a source of pollution in specific areas because pollution can cover over certain boundaries and can actually move from one area to the next. For instance, in the case of certain areas in our capital city where pollution levels are very high, for example, in the Ballyfermot area, which is a densely populated region with a high rate of burning coal, or the Rathmines area where pollution levels are particularly high, adjoining areas can be affected by pollution. From a practical point of view, it would be very difficult for a local authority to identify the particular source of the pollution because one cannot control air flows or air passages. Perhaps one can have some measure of control or monitoring in still air, but certainly when wind is blowing, which is quite common in our country, it is quite impractical to be obliged to identify actual sources of pollution. This amendment is perhaps being written in to satisfy a demand. I can understand and appreciate that fully but from a practical point of view I do not see how a local authority can pinpoint the source of pollution. It could finish up being argued in court that a local authority are incapable of identifying a particular source of pollution because air disperses and pollution disperses and it is almost impossible to pinpoint a source of pollution particularly when other contaminents become intermingled with air flows in adjoining areas. A lot of this can fudge the issue so sooner or later we will have to grasp the nettle and face up to the fact that the local authority will have to be directed to control pollution rather than just having something as loosely defined as this.

The creation of smokeless zones in other cities demanded that a directive was given to create these smokeless zones. I feel quite strongly about this. We are really only tinkering with the problem rather than grasping the nettle and getting down to defining where locations of pollution exist. Until our capital city and other cities are created smokeless zones, trying to define and identify where there are pollution levels in small areas, means that there will be a grave danger that this most important legislation will become inoperable. This is not the Minister's intention, but we have examples of important environmental pollution legislation not being enforced primarily due to the fact that the legislation is not directive, that it is only enabling legislation. The legislation should have teeth. It should be directive. In the matter of obliging a local authority to define from where pollution actually came, this legislation will be difficult to enforce. I would like if the Minister would give serious consideration to this part of the legislation. Perhaps my judgment is coloured by the fact that I have doubts about the enforceability of this legislation but I would like the Minister to give an assurance that he is content that the legislation can fulfil the long term objective, even if this is just the first rung on the ladder, of creating clean air and a smokeless zone for our capital city rather than just tampering with small aspects of pollution which will be impossible to control.

Mrs. Doyle

I would ask the Minister to elaborate on how this amendment might affect the concerns expressed by Deputy Brady. We are assuming we are talking about Dublin and if we get to the point of establishing a special control area it will probably be in Dublin, but we must remember that the Bill could apply at some stage to any part of the country. If there was a problem with air pollution in area A to such an extent that action was needed, it would be quite reasonable for the local authority in area A to look at an industrial plant in area B which could be unduly polluting area A. That could be the cause of a serious health problem in area A, rather than the type of fuel in use in that area. It is not likely to be the only cause of the problem but it is possible that an industrial plant could be causing problems of such an extent. This legislation allows for retrospection but in practice existing plants will not be brought under the regulations for some years due to practical difficulties. Where an existing plant is causing a problem in a neighbouring area it is reasonable that a local authority should control that specific problem before seeking to impose a special control area order.

If there is any question that this amendment could be seen as a let-out or as weakening the ability of a local authority or of the Minister to impose such control area order in a case where such was needed because of the type of fuel being burnt, that should be explained by the Minister. We need his assurance that this amendment will not weaken the Bill, particularly Part IV. The discussion on special control areas has been emotive and there are major fears. Householders have fears because alternative types of fuel are expensive and those representing coal interests worry about the future. All we should be concerned about in debating this Bill is how we can best manage and control our air quality. These other aspects are relevant for consideration but they must not be allowed to impinge on the outcome or effectiveness of the Bill. This amendment seems reasonable, provided it will not prevent the implementation of special control areas orders where they are deemed necessary by any local authority or Minister.

Mr. Flynn

The special control areas orders can apply to all types of business, not to domestic houses. A whole range of operations will be covered. Deputies Brady and Doyle have been talking about the problems caused by transboundary pollution. That is what the thrust of this amendment is about. We must try to trace in the first instance the causes of pollution. It would not seem just and fair to confirm an order without having the necessary survey work undertaken. Emissions from a particular type of operation miles away might be the cause of a certain level of pollution in a housing area, due to wind velocity or direction. The use of domestic coal tops up the problem and the pollution level goes over the limit, thus causing an order to be placed. One would have to commission a detailed survey to establish where the causes of the pollution arise.

I support Deputy Brady's view that the legislation should have teeth. There is not much point in passing legislation if it does not contain the necessary powers or will not be implemented. This Bill has been framed in such a way that certainly it is expected it will be implemented. I will give it highest priority. We are trying to achieve cleaner air not just in the capital city but in other areas which might have an air pollution problem, arising either from local sources or from transboundary sources. It is important to recognise that the Bill is not centred on Dublin, although instances of pollution in the city have been brought to our attention and areas have been scientifically identified as having air which is not in accordance with the baseline directive we would like to apply. It would be a matter for the local authorities to carry out the necessary surveys to prove these conditions exist and to seek to have a special order put in place.

Section 39 enables a local authority in the interests of preventing or limiting air pollution to make an order declaring all or part of their area to be a special control area. In considering the making of the order the local authority must have regard to any relevant air quality management plan or air quality standard, as well as the availability of the means necessary to comply with the order and the cost of compliance. Making an order will be a function reserved to the elected members of a local authority. Local representatives have been seeking this power to address difficulties in certain areas in their locality.

The Minister will also have a reserve power to direct that a special control order be made. That is important in an area where there might be reluctance on the part of an authority or of certain members of it to make such an order. The Minister will have the overriding power to step in and direct that the order be made. Of course, he will have to take cognisance of the surveys and management plans that might be in place and the evidence brought forward in support of making the order. There is a cost element involved in any such measure. That reserve power is an essential ingredient in the legislation. It indicates to local authorities and to elected members that if they are reluctant to take the necessary steps to have a special control order supplied, the Minister will simply step in and do it on their behalf, and I assure the House that this Minister will not be reluctant to take the power available to him.

Section 39 (1) is important because it provides the basic power for a local authority to make a special control area order and this power is stated permissibly as "may" rather than "shall", something which has attracted criticism from certain commentators on the Bill. By implication these critics would like to see a mandatory provision requiring the establishment of special control orders in specified circumstances.

It can be said in reply to some of these criticisms that the Bill embodies a mandatory provision under section 39 (4) for special control area orders in the power of the Minister, to direct a local authority to make such an order. That would go a long way to setting at rest the minds of those who say that the Minister might not have the power or might not be available to use it. Secondly, it would be unreasonable and inappropriate for the Bill itself to define where or in what exact circumstances an order should be made. Making an order will involve a pretty complex assessment for which the Bill must be the framework rather than the detailed blueprint. That is important. There are steps to be taken so as to protect rights of individuals, people and areas so that those steps can be clearly set down. The local authority will be in full knowledge of the expertise, the surveys, the plans and all that goes to make a decision one could stand over. I am particularly conscious of that.

Thirdly, making a mandatory provision the norm would deprive local authorities of any real input into the question of special control areas. It is embodied in a particular way in this legislation that local authorities should be conscious of their own environment and should take the initiative for it. In the first instance I want them to do that. I do not want to mandate them and say that it must be done this way or that way; I want them to set in place a sequence of events that will take place before the special area order of control is made. They will have their input, they will have an opportunity of articulating the reasons. In this way their own electors will understand the reason certain steps are being taken, including the efforts made to trace the causes of the pollution affecting their own area. It is very important that that amendment be seen in that light. I do not see it as a long term benefit to say that we are having a special control order in this area and leave it at that. It would be preferable that before an order is made the cause of the pollution is traced back so that one can remove or take steps to remove the cause and thereby the control order would not be in place for all time. There is not much point in making an order unless we do something about seeking the source. By attacking it in that way we might eliminate the need for having that many orders put in place. People would recognise that those making out the orders were seeking the sources. This would be a good indicator to all and sundry that they must do something about their own business in advance of having the order put in place on them and it would be instead of doing it in a mandatory way in the legislation and against the practice of most countries, in particular against the tradition of Irish local government who have entrusted elected local authorities with all kinds of responsibilities for the environment, taking in such things as planning, water pollution control, waste management, sanitary services, roads and housing.

We could all agree that there is a pretty wide range in the powers the authorities have and it has always been good practice to allow them to have the power to deal with all these matters which concern their own areas. This legislation goes down that road in allowing the elected representatives the maximum autonomy in dealing with their own areas. I would like to see that enshrined in this legislation. If they are not prepared to do it or are reluctant in any way when the Minister has the power, but I would like to think that it would not come to that and that they would seek to have these control orders put in place themselves and to take an interest in seeing to it that their areas are free from the type of pollution we are referring to in this legislation.

Finally in relation to that subsection, entrusting discretion to local authorities in this matter is consistent with the reality that different approaches to environmental protection are appropriate for different areas. We could see that in a broad way also. What one might do in one area might not necessarily be the right thing to do in another, whereas if it were included in the legislation by way of mandate, it would be a blanket kind of thing, taking away from local authorities the making of orders and having particular surveys done in a particular way to satisfy their own requirements.

Section 39 (2) lists the matters to which the local authority must have regard in deciding whether to make a special control area order. It is important that that be understood by those considering putting in place this type of order. The matters they would have to take cognisance of would be as follows: any air quality management plan adopted by the local authority under section 46 of the Bill; any relevant air quality standard described by the Minister under section 50 of the Bill — this could be based on EC directives or prescribed independently — the availability of the means necessary to comply with the order, for example, smokeless or other non-polluting fuels, low emission burners and so on, and the expense involved in complying with the order. Of course, these things are added to by the amendment in that they have to seek into the cause of the pollution as well.

It is not the case that the availability of means necessary to comply with the order and the expense involved in complying with the order deprive these provisions of any real teeth. I do not see it that way. They are just the overriding considerations but their inclusion is necessary to ensure a balanced assessment of the merits of a special control area.

These subsections in outlining the details of how it is to be done give some indications as to how serious the question of imposing such a control area order is. It must be done carefully following all due surveys and recognition of the difficulties involved, but once decided on it must be done in a proper fashion. In this way the legislation is given teeth. Deputy Brady need have no fear; the legislation is comprehensive enough and allows for implementation without getting completely stuck in so far as investigation is concerned.

Section 39 (3) requires a special control area order to specify the area to which it relates, the pollutant or pollutants with which it is concerned and the measures required under it. Section 40, without prejudice to the generality of this subsection, lists in much detail the possible matters for which an order may provide. Section 39 (4) empowers the Minister, where he considers it necessary to prevent or limit air pollution to direct a local authority to make a special control area order. This is to be seen as a reserve power complementing that given to local authorities under subsection (1). It has parallels in other areas of local government law, notably in section 42 (1) (a) of the Planning Acts, 1963, which allows the Minister to direct a planning authority to make a special amenity area order.

The House will be aware that amenity area orders can be made in different ways and one of the ways in which it can be done is by direction of the Minister. I always like to think that these orders should have their source in the local authority members themselves but on occasion, for whatever reason, when the Minister deems it necessary to come in and do it then he should have power to do so. That provision is incorporated in this Bill as well, that the Minister does have that power to take the necessary steps to prevent air pollution, to direct a particular local authority to put a special control area order in place. Hopefully, it will not be necessary for a Minister to take this step too often. I like to view it as purely a reserve power to show the Minister is determined and wishes it to be effective in so far as the control of pollution is concerned.

Section 39 (5) allows a local authority, with the consent of any other local authority concerned, to make a special control area order which relates to an area within the jurisdiction or functional area of the other local authority. This subsection effectively allows an order to extend beyond the functional area of the local authority making it. Similar provisions exist for special amenity area orders under section 42 (3) of the Planning Acts, 1963. This was touched on by Deputy Doyle when she spoke about transboundary pollution, the fact that a difficulty might arise because it might be outside the jurisdiction or control of a given local authority. It is important — if it can be established that the difficulty arises in some other place — that that can be covered by this section of the Bill, that the area of control can go beyond the boundary of the particular local authority. That is a good provision and it is necessary. Otherwise one could end up in a nonsensical situation in which one could go up the road to a certain limit but one could not go beyond that limit. It is for that reason that subsection (5) allows a local authority to deal with an area beyond its territory. Of course, the consent of the other local authority is needed in these matters. However, the reserve function of the Minister — in being able to direct the control area order to be made, over and above that — means that if one local authority are not prepared to play ball with another local authority wishing to have a control area order put in place then the Minister may have to settle the matter for them.

Mrs. Doyle

Where is that in the Bill?

Mr. Flynn

Section 39 (5) where it says:

A local authority may, with the consent of any other local authority concerned...

allowing them to cross the boundary of their jurisdiction.

Mrs. Doyle

I am concerned specifically with the Minister being able to come in if the consent of the other local authority is not forthcoming.

Mr. Flynn

That would be covered under subsection (4) where the Minister has the power, where he considers it necessary, to direct a local authority to make a special control area order. While he can do it in the case of one authority, he can do it with the two as well.

Mrs. Doyle

Is he directing two local authorities in two different areas?

Mr. Flynn

He would probably have to direct them separately, but I think that would be a very extreme case.

Mrs. Doyle

I am just wondering about the logistics of it, having read through the section. They concerned me somewhat.

Mr. Flynn

I do not think it is referred to specifically in subsection (5). Subsection (4) would have overriding powers that the Minister can, in any circumstance, direct a particular local authority to do so.

An Leas-Cheann Comhairle

Can we have agreement on the two amendments? Then we can discuss the section itself. That is the normal and formal way.

Mrs. Doyle

When the Minister has finished I would just like to come back——

An Leas-Cheann Comhairle

——on the amendments. Yes, and then we can discuss the full section.

Mr. Flynn

We had moved away from the actual amendment in so far as——

An Leas-Cheann Comhairle

That was remiss of us.

Mr. Flynn

Yes. Do you want to rectify the position or mend your hand in that regard now?

An Leas-Cheann Comhairle

The correct order is that we deal with amendments, dispense with them and then proceed to discuss the section, as amended. In respect of the two amendments, does Deputy Doyle want to make a comment on one or other of them?

Mrs. Doyle

If you think it is in order at this stage. I was quite happy to let the Minister finish but I will be directed by you, a Leas-Cheann Comhairle. I wanted to ask — as we had gone on slightly beyond the amendments — whether under subsection (3) (b) which reads that a special control order area shall specify the pollutant with which it is concerned that renders the amendment in question somewhat unnecessary? Before an order could specify the pollutant one would have to know the source and so on. Perhaps unnecessary is somewhat strong. Does it render the amendment somewhat superfluous? I might take up the Minister on a couple of other points he made. Perhaps you will bear with us, a Leas-Cheann Comhairle, we have been rambling a little. It may not be 100 per cent in order but——

An Leas-Cheann Comhairle

The Chair appreciates that but we have to be careful, where there seems to be understanding or agreement generally. It would be wiser to adhere to what is prescribed in Standing Orders and deal with the amendments first.

Mrs. Doyle

May I respond to some of the points the Minister has already made?

An Leas-Cheann Comhairle

You may, of course.

Mrs. Doyle

Thank you. The Minister drew our attention to the fact that the wording of section 39 (4) is:

The Minister may, if he considers it necessary so to do....

I have long been concerned with the use of the word "may" in legislation apart from this Bill altogether. It appears in our Planning Acts all too frequently, in our county development plans and so on. Really what is meant is that where the word "may" is used, nothing is done if at all possible. The initial part of subsection (4) concerns me. Surely any Minister who considered it necessary to do so would definitely proceed according to the terms of the subsection? There should be no question of his not proceeding. I would prefer if that could read either: The Minister may, in order to prevent or limit air pollution, having regard to and so on, or: The Minister shall, if he considers it necessary to do so. If any Minister considered it necessary to do something there should be no "may" about it: it should be a matter of "shall". Can the Minister give us an example of circumstances in which any Minister might consider it necessary to do something and perhaps not do it? I hope I am making myself clear. The semantics here bother me somewhat. Perhaps I might repeat for the Minister's benefit: could the initial part of that sentence read: The Minister may, in order to prevent or limit air pollution, having regard to and so on? Or, if the Minister could not agree to that could we have: The Minister shall, if he considers it necessary so to do in order to prevent or limit air pollution and so on? Could we have one or other but surely not the juxtaposition of the word "may" and then the words "if he considers it necessary so to do"? I cannot think of any circumstance in which it would be necessary for the Minister to act that he would or should not act.

Mr. Flynn

As the Deputy says, it is a semantic point.

Mrs. Doyle

It could be important if there was a get-out.

Mr. Flynn

The Deputy will see that section 39 (5) says that a local authority may with the consent of any other local authority concerned and so on. The word "may" is also included in subsection (1) in particular. I am trying to make the point that the making of any such order is a reserve function. The use of the word "may" allows it to be taken by a majority decision, that they may or may not but, if one inserts the word "shall" in circumstances like that it leaves no discretion whatsoever, they just have to do so. Whereas the use of the word "may" provides the majority with the right to make or to refuse——

Mrs. Doyle

I accept that in subsection (5) but I am referring specifically to subsection (4) where it is left to a local authority and they, for some reason, have not made an order. We are saying: "The Minister may, if he considers it necesary to do so..." Surely if it is necessary to do so, "the Minister shall" would be the correct wording or else we should leave out "it necessary to do so" and leave in the word "may".

Mr. Flynn

The Deputy will recognise tha the Minister would have to have good justification for doing something and he should be entitled to decide one way or the other. The word "may" gives him that flexibility, whereas if it was "shall" he would be mandated in a particular way and it would take away the Minister's power to decide whether or not he should take the powers available to him as a reserved function to put the order in place. The only reason the word "may" is included in so far as the local authorities are concerned is that it is a reserved function and the Deputy can accept that.

Mrs. Doyle

I accept that.

Mr. Flynn

Would the Deputy give the same flexibility to the Minister? Following on the case being made and having checked the evidence and the reason the council did not decide in their wisdom as a reserved function to put the order in place, he may then decide that it is necessary to put it in place having cognisance of the justification, because of the level of pollution or whatever. For that reason it gives the Minister the entitlement to decide one way or the other. If it was stated in such a way that he had to do it, by the use of the word "shall", it would defeat the purpose of the powers the Minister would like to have in so far as flexibility of decision is concerned. Maybe it is a semantic point but it is worth making.

Mrs. Doyle

I have no difficulty with subsection (5) which states: "A local authority may, with the consent of any other local authority..." or the other reference ot the local authority having the option, it being a reserved function of the members. It does not say that a local authority may, if they consider it necessary to do so, etc. It is the juxtaposition of the word "may" and the words "if he considers it necessary to do so" that concerns me. Could we have a position where a Minister would consider it necessary to proceed and then would not proceed for some reason? I do not think we could have that position. I am happy with the words "the Minister may ... in order to prevent or limit air pollution, having regard to the provisions. ...make a special control area order in relation..." The word "may" allows the Minister to step in if the local authorities for some reason or another have not proceeded with the special control area order and if the Minister thinks it is necessary.

Mr. Flynn

I ask the Deputy to consider the position under the subsection to which she refers where it states: "The Minister may, if he considers it necessary ..." They are the overriding words of that subsection. It is important that the Minister should have that discretion available to him. He cannot act in an arbitrary fashion. He would have to take cognisance of the evidence before him. In all the circumstances the inclusion of the words "if he considers it necessary" puts the Minister in a very strong position. We should take into consideration all the time that before it happened the local authorities had their say and they may for whatever reason have decided one way or the other. It would only come to the Minister when they had decided against the order being put in place. That is not to say that the Minister could not initiate and direct an order in his own right irrespective of whether a local authority intended to put an order in place. I expect that in the normal course of events that matter would be brought before the local authority and they would be put on notice that this evidence was there and that they should utilise the powers available to them.

In other legislative areas local authorities are sometimes reluctant to move in the first instance and they may very well require a push from the Minister. I would like to think that the push would be given by the Minister initially and that he would ask them to consider these matters. If they fail in their duty and if it is seen that they are failing in their duty then the Minister may, if he thinks it is necessary, go ahead and put the order in place. That is what is intended here. It is in no way intended to limit the powers of the Minister. The Minister has considerable power under this legislation and I am not in favour of limiting that power because we might find that local authorities are reluctant to comply with this.

Mrs. Doyle

I accept that, but I still cannot see the position arising. Can the Minister give me an example?

Mr. G. Brady

I require your direction, a Leas-Cheann Comhairle, on whether we are actually discussing the entire composite legislation or the amendment?

An Leas-Cheann Comhairle

As far as the Chair is concerned we are now discussing amendments Nos. 13, 14 and 15. The Chair hopes that we can dispose of those amendments and then, if necessary, discuss the sections to which they refer. Amendment No. 15 refers to section 41 which we will deal with later. I would like to guide the House to proper debate. We should now confine ourselves to a discussion on those three amendments only.

Mr. G. Brady

I have no objection to how it is discussed provided I will be given an opportunity to amplify different areas if they are going to be discussed in this loose manner.

An Leas-Cheann Comhairle

The Chair takes that mild reprimand from the Deputy. He will enforce order in a different fashion now. Can we take the Minister and Deputy Doyle——

Mr. Flynn

Can I move amendment——

An Leas-Cheann Comhairle

No, you have already moved amendment No. 13.

Mr. Flynn

Before you came in, a Leas-Cheann Comhairle, the Ceann Comhairle suggested that, because amendments Nos. 14 and 15 are consequential on amendment No. 13, they should be moved together.

An Leas-Cheann Comhairle

No, that they should be discussed together. You can only have one motion before the House at any time. We move one and we discuss the others with that one. This is post discussion and when we come to those amendments I will ask you to formally move them. That is the technicality that must be satisfied.

Mrs. Doyle

Before the Minister moves the amendments — I will be ruled by you, a Leas-Cheann Comhairle; I was merely responding to what the Minister said earlier——

An Leas-Cheann Comhairle

Is this on amendment No. 13?

Mrs. Doyle

On the amendment, specifically. I beg the Minister's indulgence; I do not recall him answering my specific question as to whether section 39 (3) (b) makes amendment No. 13 superfluous. Perhaps I lost the answer in our overall discussion. I wonder why it is necessary to include a subsection in relation to the incidence and cause of air pollution when, before any special control area order is made or when it is made, it shall specify the pollutant to which it is concerned. Before a pollutant can be specified surely its incidence and source will have to be identified.

Mr. Flynn

I can see the Deputy's point of view. There may be a whole range of pollutants which affect this matter; some may be of major consequence and others may not be. The order would zone in on one pollutant or maybe two, but it is more than likely that it would be only one, smoke being the biggest one. It would not necessarily mean that there were not a lot of other pollutants also involved and for that reason I do not think the Deputy's point is valid.

Mrs. Doyle

It would probably be smoke or SO 2 in this country.

Mr. Flynn

That is the case at present but in the general legislation we would have to consider what might by the situation years from now. For that reason it has to be framed in that way.

Mrs. Doyle

Surely the pollutant could be considered to be the cause of air pollution which we are concerned with in this amendment.

Mr. Flynn

One has to establish the cause of the air pollution before proposing the order. I take it that when the order is made it will nominate a particular pollutant and that will be the principal one. In our circumstances the Deputy is right when she says it is smoke at present but that is not to say that there are not many other pollutants in the air as well.

Mrs. Doyle

I take what the Minister is saying but I find it a little superfluous that both are there, but I do not think they do any harm.

Mr. Flynn

If the survey is done properly it will identify all the pollutants and, hopefully, will seek to address the problem of finding the source of the pollutions. If the major cause is smoke, obviously they will lean in that direction. I am including this as another element in the survey which would have to be done before it goes before the council to make the reserved order. I suspect that because the pollutant is smoke they will be seeking the source before making the order.

I mentioned earlier — I presume it was out of order but I hope it is on the record — the list of matters the special area order survey would have to take into consideration before the order would be made, and I am including this one now which was sought by interested parties so that they would not be discriminated against in any way. This does not minimise the effectiveness of the legislation in having the order put in place, but it is important that at least cognisance be taken by those carrying out the survey and that they make every effort to identify the source of the major pollutant, which would be smoke, before the survey goes before the local authority with a view to having a control order put in place.

This is a reasonable amendment. I would not like to be seen as pandering to certain interests but one must accept that smoke is the major pollutant we are talking about and domestic coal contributes to this problem. It is only right and proper that fair play be seen to be done. That was why the amendment is down in that fashion and I would like the Deputy to see it in that light.

Mr. G. Brady

I see it in that light and that is why I am pressing the Minister about this problem. He said the Coal Information Services have specifically requested clarification in this area. It is important to realise that none of us has any reason to criticise the operation of the coal industry nor would we wish to see a diminution in the carrying out of their business in an effective manner. We want to see them making a good living and supporting a large number of jobs. I want to put that on the record as a preface to what I have to say about this amendment. I support their efforts. Be that as it may, the harsh reality is that in this city the smoke levels have doubled over the past year. These are factual figures from the control section of Dublin Corporation, a section which does its best, with very inadequate equipment, to monitor areas in Dublin city. I cannot see how it will be possible to determine the source of pollution.

The Coal Information Services sent me a leaflet dated 19 May which arrived on my desk this morning. In this leaflet they say that deaths are caused by cold and not by air pollution. That is a very, perhaps unintentionally, misleading statement and it is a serious statement. Anybody interested in research into bronchial conditions and asthmatic or respiratory problems of elderly people who have to suffer the appalling air pollution levels in our capital city could not agree with a remark like that from a responsible organisation representing the coal industry.

In this leaflet they say that the much quoted Kelly-Clancy report omitted the fact that in January 1982 proportionately a greater increase in deaths occurred in Munster, Connacht and the rest of Ireland than occurred in Dublin. They went on to say that only Cavan, Monaghan and Donegal recorded a lower increase than Dublin and that that was just one example where all the facts had not been highlighted in that debate. I see as misleading the calling into question of a medical report that highlighted the fact that five years ago we had a very cold spell and sulphur dioxide was trapped in our atmosphere. This meant there was an increase in the number of deaths in our capital city due to air pollution.

They are trying to influence this legislation by making it mandatory on the local authority to establish the source and not just the presence of air pollution. They say that if the Bill is not amended there is a very real danger that local authority decisions will be based on ill-formed popular opinion and not on fact. That is tantamount to endeavouring to negative all the information and reports which have come out from Dublin Corporation pinpointing the fact that in Dublin city air pollution exceeds the limit set in EC regulations.

They say that section 39 (3) (b) should be amended to require a local authority to specify the source of the pollutant by including after the word "pollutant" the words, "and its source". The effect of this change would be to put an onus on the local authority — and this is the important point we have to consider — to scientifically establish the source of the pollutant before proposing the introduction of a special control area, that is, a smokeless zone. This is a very important point. In my view it is well nigh impossible to establish the actual source of a pollutant. There are so many other components in air pollution that this legislation, regrettably weak-kneed as it is and unfortunately non-directive, will become inoperable.

The legal people will have a field day as years go by trying to establish where a particular air pollutant is coming from and how air pollutants chemically can change as they interact with other sources. There is one poignant example in the Ranelagh area where for years a man has been smelting lead and polluting the atmosphere and, to my mind, causing deaths as a result of air pollution. I believe there is some kind of cop-out there because it is impossibe to pinpoint the source of pollution.

In this amendment we are asked to include the words "the incidence and cause of air pollution in the area" before a smokeless zone can be created. I think it is unnecessary but I am so anxious that this Bill be passed that I will not oppose the inclusion of the words, although I feel it necessary to mention them. The Minister will probably have to involve himself a lot more than he realises and it will not be a question of his hoping he will not have to implement the powers he has and depending on the local authority to use the power. For a number of reasons I would have less confidence in the local authority enforcing the legislation. They have not the equipment to pinpoint the source of pollution. The delay involved is another factor because air pollution levels vary dramatically from season to season, from a high point in November-December right down to a low point in June-July. In fact in June and July our pollution levels are even higher than are winter levels in the capital city of England. It will not be possible to pinpoint the source of pollution.

The temptation here is to point the finger at the coal industry but I will not do that. I realise that the coal industry are engaged in a vigorous manner in endeavouring to produce scientific smoke recovery grades. Only today, I suppose by coincidence, we have been invited to the Shelbourne Hotel to examine new means of smoke recovery apparatus which the coal industry are engaged in developing. That is a very welcome development but all of this is being forced on the people who are perhaps inadvertently the main cause of air pollution in our city.

I do not like to see this amendment. A Bill like this, with so many sections, is a bit like Parkinson's law, we can fill so many sections in it that it goes on and on without having teeth. This amendment would weaken the legislation by making it impossible for the local authority to do their job. People are dying from air pollution in the capital city. The Leas-Cheann Comhairle represents a densely populated area with a lot of local authority housing estates in which the air is just appalling. Even if the local authorities saw fit to introduce what we call under this section a special control area, how is it to be enforced? We must have a brave attitude to this legislation. We must take a directive on it for health reasons and we cannot pander to particular aspects of industry. The health of our people must come before consideration for polluters.

At this stage the Minister should give consideration to the creation of a smokeless zone for the capital city and he might find that the industry who for one reason or another are a party to the high level of air pollution would with their scientific endeavour go a long way towards correcting the problem by reducing the burning of this high bitumous coal which is causing the problem. Other fuels can be used which will greatly minimise or eliminate pollution. The coal industry could be engaged in the distribution of these fuels and still make their profits to create employment.

I put up the red flag of caution to the Minister here. Unfortunately, with the best will in the world, there is a grave danger in this amendment. It would be very difficult for lawyers to try to set about establishing source. It is very difficult to establish source even in relation to international pollution, be it in its most ugly form by way of nuclear radiation pollution from as far away as Chernobyl or from Sellafield, let alone within our own regions. Perhaps the Minister will find that local authorities will have to equip themselves with very expensive apparatus to try to establish the source of pollution. I am most unhappy about that but perhaps we will get an opportunity to amplify the points when the section is discussed in more detail. It is most regrettable that the amendment is open to loose misinterpretation.

This morning reading through a document that arrived from the Coal Information Services I noted that it quoted a medical report which specifically highlighted a problem in our capital city and pinpointed the cause and the source. The cause was the burning of domestic coal and the source was Dublin. Yet this information leaflet came to me requesting that I should use my station in this House to try to amend the legislation. It is self contradictory. If we do not have a directive in the legislation needed to create smokeless zones there is a danger that nothing will happen. We have an example of this in the Litter Act which appealed to the local authorities to enforce certain rules and so on, and yet they are not doing it. The same type of thing could happen here again. During this debate the Minister should spell it out loudly and clearly that he will take no misdirected reports from people who have a vested interest in this legislation, that he will act very bravely about this and will do what is necessary in calling for a smokeless zone for our capital. We are going down hill year in, year out and we all know it. If one stands in the foothills of the Dublin mountains and looks down, one can see an appalling yellow smog across our city. This pollution will have a deleterious effect on our tourism and on the health of the citizens living in the capital. The Minister should spell out loudly and clearly that he will not take any hedging from local aouthorities on the basis that the source of the pollution cannot be proved. Weak though the legislation is, we must use this opportunity to do something about dealing with the problem before, people start to die on the streets as happened in England, as a result of pollution in the late fifties and before something was done about the problem there. We should not start in any way kicking for touch on this important legislation.

Mrs. Doyle

We are back again to the semantics, but it might take on board the fears expressed by Deputy Brady and myself in relation to any weakening of the power of the local authorities. If section 39 (2) read "In deciding whether it is necessary or expedient to make a special control area order in relation to any area, the local authority may have regard to" so that the legal eagles will not have a field day and if it is not possible to nail down the incidence and the specific causes of air pollution there will not be an out. Could the Minister look at this to see if the word "may" could be inserted instead of the word "shall". In that way we can have all the amendments we like but we will not get hung up on any one of them which would preclude the procedure which is deemed necessary in this area.

An Leas-Cheann Comhairle

We have been discussing these amendments for some time. Amendment No. 13 refers to what might be regarded as the raison d'être of the Bill but we seem to be spending quite some time on it and some Deputies are taking freedoms in the matter of moving away from the amendment. Ordinarily it is required that on amendments on Committee Stage we confine ourselves to details affecting the amendments.

Mr. Flynn

I find Deputy Doyle's last point slightly contradictory to the case she made previously.

Mrs. Doyle

There are lots of contradictions with "mays" and "shalls" in this section.

Mr. Flynn

The word "shall" is there because we are mandating local authorities to have due regard. I am not anxious to give them any flexibility in what they may or may not consider important if they should choose so themselves. If I put standards in place I do not want the local authorities to have the flexibility to say they may or may not consider them important. I will be mandating them that they "shall" have to take cognisance of that. If an EC directive on standards was in place, which would probably be the important one, I would not like them to feel they had flexibility of action not to consider it. The word "may" would weaken that section and I am particularly anxious to have the word "shall" included so that there would be no way out. Deputy Brady probably agrees that that might weaken the thrust of the legislation and bring about discussion and argument which would inevitably lead to actions we would not wish to see taken being taken and eventually after a long process coming back to me again. I am anxious that it would be mandatory on the local authorities to consider the standards and controls that are available before and in consideration of the special period of control.

I take Deputy Brady's point of view and I would like to say, if it is of any comfort to him, that it is not the Minister's intention to take any nonsense from local authorities who would be tardy or reluctant to consider having control orders put in place. There is a serious condition to be addressed and this legislation is the first piece of environmental legislation put before the House by the Minister. Deputy Brady made the point very well about the incidence of pollution he is aware of. He is well known nationally for his concern in this matter and I share his point of view. This legislation will give local authorities power to create smokeless zones as they are loosely called. Deputy Brady will have my support in seeing to it that local authorities do not seek by any means to frustrate the intent of the legislation.

This amendment is not being inserted to weaken the legislation in any way. I hope that in the overall control of pollution it will be a strengthening factor. It is only being added on to those items which the local authorities must have regard to. It is an important amendment from the point of view of equity and tracking down the sources of pollution generally. It is only in addition to what the local authorities "shall" have regard to. It is important that they have no alternative but to do this. For that reason I recommend this amendment.

Deputy Brady quite rightly said — and it has been reiterated by many people — that the coal industry and the distribution of coal are very important to Dublin and to the country as a whole. This amendment should in no way be seen as trying to accommodate the industry. It is being inserted so that the problem of smoke which is a major pollutant can be dealt with. It has been established that the burning of domestic coal in fire places is a contributing factor to pollution but we have to be fair and say it is not the only contributing factor so far as the levels of smoke in this city are concerned. There are many pollutants. It has to be recognised that smoke which comes from open fires is a major pollutant but local authorities, when they are considering these matters, will have to have due regard for the other sources of pollution as well.

Industry and commercial concerns other than domestic houses contribute to the pollution levels in the city. We are inclined to think this is capital orientated legislation, but it is not. I want everybody to understand that this legislation applies nationally. Many people might think there is no difficulty attached to air pollution in other parts of the country but this is not so. This legislation will put in place the methods whereby local authorities can address the problem.

Smoke levels have been a source of concern for some time. Deputy Brady referred to the fact that smoke levels have increased considerably in recent times. That is fair comment. As he and the House will be aware there was a considerable reduction in the level of smoke in the seventies but unfortunately the level of smoke pollution in Dublin increased considerably during the eighties. About 16,000 tonnes of smoke are emitted annually in Dublin. That is in advance of the emissions for the London area. It is in this context that the need for this legislation is absolutely apparent.

This problem has to be controlled and the reason we are pressing this legislation is so that we can start the process whereby we can have cleaner air in Dublin. I would not like anybody to run away with the idea that Dublin would have to be made a smokeless zone area overnight. That is not fair, nor is it required. Certain areas have been identified which will have to be addressed first. It is important that, when the surveys are completed, the local authorities whose reserved function it is to make the control area order will have all the necessary evidence available to them. This is why I am anxious to include this provision along with the other provisions under section 39 (2).

Local authorities will have to have regard to all other possible sources of pollution affecting their own areas. Local representatives will consider this as being important. When they see that there are high levels of smoke in particular areas of Dublin city they will know that domestic smoke contributes much to these high levels but they will also be aware, as Deputy Doyle rightly said, that there are other trans-boundary polluters emitting smoke into areas quite a distance from them. If that dimension is not provided for we are not being fair to all concerned. It will give the authorities a better way of pinpointing the sources of emissions of pollution. In that way we will be able to get a good idea of where the pollution is coming from and go about our business in a determined way.

Mrs. Doyle

Does it mean that if they cannot find the source they cannot proceed?

Mr. Flynn

No. They only have regard to it. I draw particular attention to the question of expense in complying with an order. One would have to have cognisance and regard to the standards which were set down by the EC or by the Minister in carrying out the survey. Finally, the elected members can make and put an order in place but if they are reluctant to put one in place the Minister, once the evidence has become available to him, can direct them to do so. I sincerely hope that that situation will not arise. Sufficient evidence is available and sufficient concern has been expressed particularly in certain parts of the city, to ensure that local representatives will pursue the implementation of control orders at the first available opportunity. I am anxious that that should happen.

An Leas-Cheann Comhairle

May I seek the co-operation of the House in respect of this amendment? I do not know how long the House had been discussing the amendment before I took over the Chair but it now appears that we have been discussing it for almost one hour. I suggest that we dispose of the amendment now and then the section, as amended, will be open for discussion.

Amendment agreed to.

Mr. Flynn

I move amendment No. 14:

In page 25, subsection (4), line 35, to delete "and (d)", and substitute ", (d) and (e)."

Amendment agreed to.

Question proposed: "That section 39, as amended, stand part of the Bill".

Mr. J. Mitchell

I welcome the Bill. There are two aspects of this section on which I seek clarification from the Minister. First, who is going to bear the cost of the implementation of any such order made? Ballyfermot, in my constituency, has a very acute air pollution problem which has arisen from some local climatological factors. Ballyfermot does not appear to be in a hollow, yet the winds appear to clear only what is on either side of it and not what is in the place itself. The vast majority of householders in the area use coal fires. The air pollution problem is a very acute one and cause problems not alone for those who suffer from bronchial ailments, although it is clearly of greatest difficulty for them, but also for ordinary people. The pollution in Ballyfermot is so bad that while travelling around the area, I sometimes have difficulty in breathing. Therefore, there is an urgent need for an order as provided for in this section. Are the people of the area to bear the cost? Let us suppose that the order bans the use of coal fires or insists on smokeless fuels being used, which are more expensive, is any provision to be made to pay for the implementation of the order or will the cost fall on the residents of the area?

My second question relates to a local authority making an order in respect of another local authority area. I can understand such an order being made if such an area is on the boundary between two local authority areas but the phrase in the section is far from specific and does not say anything about contiguity. It seems a little anomalous that one local authority might have the power to make an order in respect of an area in another local authority area without specifying that it should be a contiguous area or that it is intended to be a contiguous area or does the Minister have something else in mind? For instance, does he have in mind that Dublin Corporation might make orders in respect of areas covered by Dublin County Council which are populated by Dublin Corporation tenants? Would it not be better to be more specific and specify contiguity? For instance, the Dublin Transportation Authority Act might possibly be a good precedent.

Miss Colley

At the outset I should like to apologise for not being here earlier. I was on referendum business and unfortunately could not be here to move my amendments. I take the opportunity of congratulating the Minister for bringing forward the Bill so swiftly. Regarding this section, the need for special control orders has become increasingly obvious during the past number of years and I agree with Deputy Mitchell that there are certain areas that are more prone to pollution. South Dublin is one of those areas and I do not mean just my constituency. A good portion of south Dublin is more prone to pollution. This must have something to do with the mountains in the background.

There is a provision in section 54 for monitoring by local authorities and I would be afraid that we would not make full use of that provision by using the information which is constantly supplied. What I have in mind is some kind of air pollution alert such as the warning which is broadcast on radio when there is a reduction in the water levels in reservoirs and such as the broadcasting of the pollen count during the summer. Something on those lines would not cost a lot of money to implement and it would have three effects. First, it would allow those who suffer from bronchial ailments to avoid going out of doors, if necessary; secondly, it would encourage people to use forms of heating other than coal fired heating and, thirdly, and more importantly, it would raise the level of public awareness about air pollution. We do not have a sufficiently high level of public awareness at present.

The burning of coal in grates causes more smoke pollution in some areas than in others. There is no doubt that if we could use smokeless fuels, there would be a reduction in pollution. I suggest to the Minister that one method of reducing the cost of smokeless fuels and of encouraging people to use them is a reduction in the rate of VAT which is applied to those fuels. That would be an incentive in that regard.

An Leas-Cheann Comhairle

The Minister to reply.

Mrs. Doyle

Before the Minister comes——

An Leas-Cheann Comhairle

The Minister has one minute.

Mrs. Doyle

Can we continue later?

An Leas-Cheann Comhairle

Of course.

Mr. Flynn

I do not think we can continue later this afternoon.

Mr. J. Mitchell

Perhaps the Minister would reply to the questions raised.

Mrs. Doyle

I will let the Minister in and I can come back to my questions on another occasion.

Mr. Flynn

Quite a number of matters have been raised. Deputy Mitchell raised the question of the costs involved. The local authority in making any order would have to have regard to the expense involved in complying with the order. The Deputy referred also to the possible cost to individuals. That question would be best raised under section 45 as that section has in place the possible availability of grants to deal with the matter.

Mr. J. Mitchell

I thought you abolished the grants.

Mr. Flynn

There is the capability of putting a system of grants in position.

Mr. J. Mitchell

Is that a promise?

Mr. Flynn

I am not one for making promises but, of course, there is a cost factor which has to be addressed. We all have to agree that smokeless fuels are more expensive than other fuels.

Progress reported; Committee to sit again.

Sitting suspended at 1.30 p.m. and resumed at 2.30 p.m.