Dáil Éireann díospóireacht -
Wednesday, 11 Mar 1992

Vol. 417 No. 2

Environmental Protection Agency Bill, 1990 [ Seanad ]: Committee Stage (Resumed).

Debate resumed on amendment No. 14:

In page 10, subsection (1) (a), line 24, after "pollution" to insert "through inter alia promoting clean production".

-(Deputy Garland.)

Mr. Allen

I think I had got to the end of what I wanted to say. I did refer to research institutes being involved in projects which sought to attain clean production techniques because, as I said, prevention is better than cure.

On a parochial level I would like to mention that the Cork Regional Technical College set up a scheme in conjunction with some of the industries in the Cork Harbour area recently to devise systems and projects whereby clean production techniques would be developed. We should develop those procedures rather than try to eliminate pollution when it has arisen and has damaged part of our environment.

Minister of State at the Department of the Environment (Miss Harney)

I can understand the Deputies desire to try to achieve clean production. His amendments are idealistic in their aims but I am afraid they are impracttical both in their wording and effect. No modern society has yet managed to develop technologies which totally eliminate the production of waste. This may be possible in the future but it would be unrealistic to think that Ireland could develop such technology at this stage or base the future development of the country wholly on a system that avoids or eliminates hazardous waste and hazardous products. It must be remembered that we are largely importers of technology and thus largely dependent on technical developments in more highly industrialised countries. We must certainly aim to encourage clean production. My amendment to section 5 seeks to make clear that the prevention and elimination of pollution is the desirable option. Where this is not possible we must ensure that waste, and particularly hazardous waste, will be safely disposed of.

Earlier, I referred to the waste Bill which we are working on in my Department. The whole emphasis in that Bill, so far as it is possible, will be on elimination, prevention and minimisation. That is the way in which we have to proceed for the future. I am also making provision for a system on the lines of the toxics release inventory in the United States through my amendment No. 239. This should stimulate industry to reduce levels of toxic emissions including waste and will also keep the public informed of what is happening.

I am pleased to recognise the great efforts being made by the Regional College Cork, University College Cork, local industry and other environmental groups to establish in Cork a centre for clean production. I was pleased to be in a position to assist that project and to be able to give it some financial assistance. In this country, as elsewhere, we need to put greater emphasis on clean production. Unfortunately, though the aim is to have production which is based on clean technology and that does not produce hazardous waste we are a long way from achieving that. Until such time as we can it would be totally unrealistic to put an amendment of this kind into the Bill.

Mr. Garland

I am disappointed that the Minister has not accepted my amendment. I agree she has tabled her own amendment which is in some way related although we are not discussing it now. In the event of my amendment falling, it is an amendment I will support. However, in view of the support which I have had from Deputy Howlin and Deputy Allen I will be pressing my amendment.

Amendment put and declared lost.

An Leas-Cheann Comhairle

Amendment No. 15 is consequential on amendment No. 29 and amendment No. 33 is related. It is proposed, therefore, to take these amendments together.

Mr. Garland

I move amendment No. 15:

In page 10, subsection (1) (b), line 25, after "environment" to insert "through inter alia implementation of the precautionary principle".

I should point out to the Minister of State that the precautionary principle was espoused by the Government in their own 1990 environment action programme which states "the principle of precautionary action, even where there is no definitive scientific evidence to link emissions or discharges with detrimental environmental effects..." I would also remind the Minister of State that this and other essential provisions were included in Deputy Shatter's ill-fated Environmental Protection Agency Bill which, if the Government had had the good sense to adopt, this Environmental Protection Agency would now be operational with these essential provisions already included.

Miss Harney

The Deputy's amendment seeks to incorporate the precautionary principle into the operation of the agency and I have no problem with his objective. However, I have already made an amendment to the Bill in the Seanad, to section 52 (2) (c), which in effect incorporates the precautionary principle into the Bill and requires the agency in carrying out their functions to have regard to this principle. This amendment is therefore unnecessary.

Mr. Howlin

I support the inclusion of this principle in the Bill. I have read the Seanad debate on the amendment which was accepted, and I welcome it. This principle, whereby measures are taken to protect the environment where there is a significant probability of environmental damage, is a very important one. Given that we are setting out in this section to define "environmental protection" it is appropriate to include this principle at this stage. Since it has been accepted by the Government I am at a loss to understand the reason the definition is not acceptable also.

Mr. Allen

I also support the amendment. I do not think the Minister should have any objection to including it at this stage. The Minister of State has mentioned that it is covered by section 52 (2) (c) but, as Deputy Howlin has said, it should be included. I see no reason for not including it.

Miss Harney

If Deputies read the Seanad debate they will note some of the arguments that I used in making what I consider to be a very reasonable amendment to section 52 (2) (c). We should be quite frank in regard to this precautionary principle. Deputy Garland quoted from the environment action programme but if we were to implement the precautionary principle we probably would stop many things from happening because once we give our approval there is always a chance that something might go wrong. There is virtually no activity that I am aware of which does not have the potential to cause some damage or harm. Therefore we sometimes use the principle too loosely when all we want to do is to ensure that the agency in carrying out their duties, their licensing functions in particular, seek to ensure where there is a significant possibility of damage being caused to the environment, that they take the precautionary approach. We have given them this power in section 52 (2) (c). If we were to insert the amendments suggested by Deputy Garland and the amendment in the name of Deputy Gilmore it would not work.

Mr. Garland

I will withdraw my amendment on the basis that I will study the matter further and if I am still not satisfied I will put an amendment down on Report Stage.

Amendment, by leave, withdrawn.

An Leas-Cheann Comhairle

We now come to amendment No. 16 in the name of Deputy Howlin. With his indulgence, amendments Nos. 19 and 22 are related. It is proposed therefore, for discussion purposes, to take amendments Nos. 16, 19 and 22 together. Is that agreed? Agreed.

Mr. Howlin

I move amendment No. 16:

In page 10, subsection (1), line 25, after "environment" to insert the following:

", and

(c) the protection and enhancement of all aspects of the environment, including fauna, flora, soil, water, air, climate, landscape, the built environment and cultural heritage.".

This amendment seeks to broaden the scope of the section. As we commented earlier this morning, the definition of "environmental protection" seems to be too negative in that it refers to prevention, limitation, elimination and abatement while only a bland statement is made to the positive side, the preservation of the quality of the environment. Therefore what the amendment seeks to do is to broaden the positive side of the definition of "environmental protection" to include the protection and enhancement of all aspects of the environment, including fauna, flora, soil, water, air, climate, landscape, the built environment and cultural heritage. You will be glad to hear, a Leas-Cheann Comhairle, that I will not refer to each of those aspects of detail because their importance to the environment is clear to everyone here. I hope, however, that the positive side of the definition of "environment protection" will be spelled out in the way I describe, otherwise we will get trapped in the old mode of punishing those who pollute rather than promoting the enhancement and protection of the environment.

Miss Harney

Section 4 contains definitions for a number of environment related terms used throughout the Bill which when viewed together cater adequately for the functions proposed for the agency. The definitions have been framed to ensure the agency will have a broad remit as far as the environment is concerned in relation, for example, to their advisory functions, while also ensuring that they are not being required to take on environmental functions that are already the responsibility of other bodies.

Subsection (1) (a) defines "environmental protection" to include the prevention, limitation, abatement or reduction of environmental pollution and the preservation of the quality of the environment. "Pollution" is defined in subsection (2) by reference to definitions in air and water legislation and by reference to waste and noise requirements as defined at subsections 2 (c) and 2 (d). It includes emissions or discharges that could damage or create a risk to public health, air, water, atmosphere, soil, plants, animals, the countryside amenities and places of special interest.

I believe the definition in section 4 is perfectly adequate to enable the agency to carry out the extensive functions provided for in this Bill including integrated pollution control, and their general supervisory role and advisory functions. There is also an implicit recognition that there are other bodies with defined responsibilities for environmental issues. There is no proposal to transfer these responsibilities to the agency although there is provision for the transfer of existing or additional functions to the agency under sections 53 and 54 if such is decided in the future. For example, the Wildlife Service of the Office of Public Works are responsible for fauna and flora matters, planning authorities are primarily responsible for the built environment, and the Heritage Council are responsible for cultural heritage affairs. This does not mean that the agency would have no function whatsoever in relation to such matters. On the contrary they can have a considerable impact, for example, in relation to their advisory functions under section 55, functions in relation to environmental research, monitoring, the preparation of codes of practice, and the consultation provisions in sections 78 and 79. In being reluctant to take on board any amendments to this section I am mindful of the primary reason for establishing the agency, i.e. the control of pollution from those activities with the greatest potential for pollution in the context of the effects of pollution on the environment. The definitions in section 4 are in keeping with this primary objective and I am fearful that adoption of the amendments proposed would dilute the agency's resolve to achieve this objective.

Inherent in the amendments proposed is a broadening of the functions envisaged for the agency to include other aspects of the environment which are being dealt with adequately by other bodies such as the Wildlife Service of the Office of Public Works — the protection of national monuments or the provision of public amenities such as picnic sites and soon. It is important that there should be no confusion as to the responsibilities in environmental matters and I have already indicated that the definition in the Bill provides adequately for the agency's functions.

It is not intended that the agency should be directly promoting or funding environmental improvement although they can do so indirectly in giving advice to Ministers or others and issuing recommendations under sections 55 and 56. It could not be accepted therefore that the agency would have a role in enhancing all aspects of the environment as proposed - the agency would not have the funds for carrying out such a function.

Mr. Garland

My amendment, No. 19 which is being taken with amendment No. 16, proposes that the words "including wildlife" should be included after the word "environment". No definition of the word "environment" is contained in the Bill. The Bill should contain such a definition which would include eco-systems, which means any system of terrestrial or aquatic organisms within their physical environment; all natural and physical resources; the social, economic, aesthetic and cultural values of the environment. It is particularly important that wildlife be included in this section since noise pollution often poses a serious threat to endangered and indeed all species of animals and birds and they must be protected. I support the broad thrust of amendment No. 16.

Mr. Howlin

I am again disappointed at the attitude of the Minister in speaking in Civil Service terms. It is important to broaden the scope of this section as we are talking about a definition for "environmental protection". I sought to broaden that from the old focus of inhibitions because the attitude to environmental protection over the last ten years has been to put up barriers and laws in relation to people despoiling the countryside. Obviously that was very important and worthwhile but the next phase of European thinking at least — I know it is an integral part of the Fifth Programme on Environmental Policy which is being prepared — is to get away from the sanctions mentality and into the positive enhancement view where people have a role in enhancing and developing the environment in all its aspects.

As I said, I seek to broaden the terms of the definition of "environmental protection" and to give scope to the new agency. I do not accept what the Minister said, that it would dilute the agency; giving them broad scope does not mean that they have to respond to every call made on them but they should be capable of doing so if they felt it would suit the circumstances to assist in enhancement of the environment in any of the areas I have outlined. The Minister indicated that the main focus of the Bill is the control of pollution. That is a very narrow focus and I had hoped the Bill would have had a greater impact than simply the control of pollution, that it would have a positive role to play in the enhancement of the environment in all its aspects, including the built environment.

The Minister said that there are agencies already charged with a statutory duty in relation to the enhancement of the environment and she referred to the planning authorities regarding the built environment. I am a member of two local authorities and I do not believe that they necessarily have the wherewithal, resources or the legal framework to enhance the environment in the way we would like. They can certainly make an impact on it to some degree and there have been some marvellous urban renewal schemes. However, we need an agency charged with overall responsibility for the development, enhancement and protection of the environment, not only in controlling the polluter but in positively selling the notion of an improved environment. For that reason, I ask the Minister to reconsider her view on this amendment.

Mr. Allen

My amendment is on the same lines as that tabled by Deputy Howlin. When we brought up the question of nuclear waste we were told that the Radiological Protection Institute are responsible in this area. The Minister gave her explanation and we did not press the point too hard. However, when I brought up the question of the control of pesticides and the dangers posed by them I was told it was a matter for the Department of Agriculture and Food which also control horticulture. The Minister said she did not want the Environmental Protection Agency to have in their brief the whole question of conservation of the countryside. The issue of environmental protection is as basic as any other issue; there is a threat to the Burren. County Clare, at present which shouod be a prime concern of the Environmental Protection Agency. The trouble is that. at the last count, there were 14 agencies responsible for environmental protection. The local authorities do their own thing. Today the Minister for Energy answered questions regarding certain aspects of environmental protection; the Minister for the Environment, the Minister for the Marine and the Minister for Transport, in some instances, are also responsible for environmental protection. The same applies to the health boards, everybody has some responsibility but nobody has overall responsibility for co-ordination and organisation. There is a totally disjointed effort in relation to reaching a situation where we have a comprehensive environmental protection policy.

I am disappointed that already there are lines of demarcation between the RPI and the Environmental Protection Agency. I ask the Minister once and for all to grasp the central issue that it is not just a question of protection or undoing damage, it is a question of preserving something before it is damaged. The amendment put forward the philosophy that we should preserve what we have instead of trying to undo damage when it occurs. I ask the Minister to be flexible and to accept the amendment.

Miss Harney

I do not think the Deputies are serious in assuming that this agency will be the panacea for all our ills and will deal with every aspect of the environment. That was never envisaged by me, nor was it ever suggested to me by any outside body. Deputy Howlin's suggestion would mean dismantling the present planning system because he believes the agency should have ultimate responsibility for the built environment. I do not accept that that is necessary; perhaps if we were now establishing this State we might organise things differently, but we have in place in the main a very satisfactory planning system which is decided at local level by elected representatives in the first instance through development plans and thereafter the executive decisions are made by officials. There is an appeals system to An Bord Pleanala which works fairly well although we do not necessarily always agree with all their decisions. Generally speaking, however, the system is fair, transparent and acceptable and I do not believe it is necessary or desirable to set up one national body with total responsibility for every matter relating to the environment. If this was to be the remit of this agency they would never get off the ground, their role would be so diffuse they could not possibly do their task.

In relation to developments in Europe and the Fifth Programme, it is true that developments now in terms of the environment are in relation to the whole concept of sustainable development. It is now recognised that we cannot go on living the way we have over the last 20 or 30 years. While integration was the "buzz" word of the Fourth Action Programme for the Environment, "sustainable development" will certainly be the basis of environmental debate in the future. That means we must examine in this society the impact of sustainable development, what it means in the first instance and what it means for agriculture, industry and energy and transport policies. I look forward to the day when the environment will be uppermost in the decision making process in all these areas of Government. I also look forward to the day when the whole environmental impact assessment procedure will be applied to the policies and programmes right across Government policy making because the environment must be a prime consideration.

I do not accept that the Environmental Protection Agency should have this broad remit because it is neither necessary nor desirable. They would be snowed under with complaints because the built environment is certainly a cause on occasions for an enormous amount of complaints. We have a Heritage Council and an Office of Public Works, whether we should have these bodies is a different issue, but they have a very distinct and specific role in relation to these matters. When these bodies can carry out a specific role it is not intended to take it from them and to give it to the agency.

The agency have a wide range of functions, they have proactive powers, they can hold inquiries, draw up reports, give advice, issue codes of practice and so on. The definition of "environmental protection" is contained in section 4 (1). It includes (a) the prevention, limitation, elimination, abatement or reduction of environmental pollution, and (b) the preservation of the quality of the environment. That is a broad definition. To go into specifics in this respect would be both unnecessary and undesirable. Reference was made this morning to the United Kingdom Environmental Protection Act and great play was made about aspects of it.

Mr. Howlin

Only about the name.

Miss Harney

I love the way Deputies pick and choose. In that Act the environment is defined as consisting of all or any of the following media: the air, water and land. That is exactly the approach we have taken in our definition of environmental medium in section 4 (3).

There would be much merit in what the Deputies are saying if we did not have other bodies, did not organise things in a different way and were starting from scratch to set up a new planning system, devising a system of Government or dividing and allocating responsibilities. However, we are not doing this. The raison d'etre for the establishment of this agency was to put in place a supervisory body who would ensure that the appropriate monitoring was carried out and that the laws and regulations we make in this House were fully implemented right across the country in a consistent and uniform way. This does not happen at present because it is not possible for 33 local authorities to have the resources and expertise needed to do this. Earlier Deputy Allen made this point very forcibly in relation to a number of other issues. The way we organise environmental protection matters at present is unsatisfactory and this agency are being established to change that.

It was said that it seems the agency will be a pollution control agency. They will not be a pollution control agency. What causes pollution? Pollution is caused when certain substances——

Mr. Howlin

Those were the Minister's words.

Miss Harney

——are either released into the atmosphere, water or soil. It is the disposal of certain wastes in that way which causes pollution. We need a body who will be able to set high standards, ensure they are enforced and who have the expertise to understand the complexities of many of these processes. Developments in technology and industry are so rapid now that it is extremely difficult, even for many experts, to keep pace with them. In a country like ours, we need an agency who are nationally based and regionally and locally organised to do this task. I never envisaged — I do not believe anyone really envisaged this — that this agency would deal with the built environment. I do not believe it is possible to have an agency with that kind of responsibility nationally organised. Our present system works reasonably well. It does not mean we necessarily agree with every decision made and we may not agree with every decision made by this agency either. The day we all agree with decisions made by a particular body will probably be the day the body are becoming toothless or ineffective. It is not always possible for people to make decisions with which we are all able to live.

Deputy Allen referred to developments in the Burren. It is interesting to note that his colleagues from County Clare seem to support this development. There is a different view about this issue also and people approach it from a different perspective. Obviously, there will have to be a local input into much of the decision-making but at the end of the day the national body responsible, the Office of Public Works, have to make decisions of this kind. I do not believe this would be an appropriate function for the Environmental Protection Agency. It would be lovely if every controversy——

Mr. Allen

Any body but the Office of Public Works should be responsible.

Miss Harney

Perhaps the Deputy should raise the matter with the responsible people in the Office of Public Works.

Mr. Allen

Deputy Harney is a Minister of State.

Miss Harney

The Office of Public Works have done outstanding work. The offices of the Department of the Environment were recently renovated by the Office of Public Works.

Mr. Allen

I am talking about the countryside, not buildings.

Miss Harney

Those offices are a fine example of the outstanding work which has been and can be done by the Office of Public Works.

Mr. Howlin

Hear, hear.

Miss Harney

It is unfair of the Deputy to make that criticism.

Mr. Allen

I said nothing about buildings; I was referring to the countryside. The Minister should not put words in my mouth.

An Leas-Cheann Comhairle

Deputy Allen knows that especially on Committee Stage he will get ample opportunity to make his point. He should avoid as far as possible——

Mr. Allen

We have had to listen to a lecture for ten minutes. The Minister should not be putting words in our mouths.

An Leas-Cheann Comhairle

Deputy Allen, that might be the feeling of someone who will be giving audience to you later. I will protect you while you are lecturing or whatever in your contribution.

Mr. Howlin

I have listened with great care to the Minister and I take on board some of the points she made. However, she has deliberately misconstrued the intention of my amendment.

We are proposing to establish an environmental protection agency. We are dealing now with the definition of environmental protection. The point I am making is that the definition is too narrow. The Minister cannot argue both ways at once. In her initial contribution she said that the main focus of the Bill was the control of pollution and if that is the case it should be called the Control of Pollution Bill but that would not enhance or protect the environment. This is not the way Europe, in particular, is thinking in relation to the enhancement and protection of the environment.

My amendment proposes to broaden the very narrow scope of a short sentence in the Bill. Section 4 (1) (a) is all in the negative — prevention, limitation, elimination, abatement or reduction. This is all on the sanction side. The positive side is limited to a few words — the preservation of the quality of the environment. One could say that that encompasses all I want to encompass in my amendment. I am sure the Minister has no difficulty with that. It could be interpreted that the preservation of the quality of the environment includes flora, fauna, soil, water and so on. For the Minister to say they are all the specific responsibility of other agencies is disingenuous. Other agencies and bodies have been established by statute and they will carry out the statutory functions assigned to them by the Oireachtas. We are proposing to establish one body who will have overall responsibility for the protection of the environment. It is right that the Environmental Protection Agency should have a say in the building of an interpretative centre and should not be precluded from having an opinion on it. That would be a normal and reasonable thing for an Environmental Protection Agency to do. We are not asking the agency to take over the planting functions. Nobody suggested that, and it is disingenuous of the Minister to suggest that.

We are seeking to set down broad and clear definitions in the Bill. The Minister said it was important there should be no confusion as all the agencies were doing such a marvellous job that giving an overview to any agency might sow the seeds of confusion. I am not content with the work of some agencies charged with this function. A very strong case could be made for giving some agency an overview, even if it is only to issue a report and say that the agency are not acting properly or the environment would be better served by certain action. All those strands should be pulled together so that this agency can have a broad ambit. I agree we cannot have everything in the one agency or in the one Bill. However, we should not reduce the Environmental Protection Agency to the control of pollution, which is what seems to be emerging.

Mr. Allen

We discovered this morning that the agency will be under-resourced. We are now finding that the terms of reference of the agency will be too restrictive. As Deputy Howlin said, if the agency are confined to the control of pollution this will be totally out of line with present European thinking. I listened to the Minister misrepresenting what we were saying. I gave no opinion one way or the other on the development in the Burren. All I was saying is that an agency other than the Office of Public Works should have an opinion on the future of the Burren. Surely the Environmental Protection Agency should have a say and an input into what happens to our countryside.

I do not see what objection the Minister could have to extending the terms of reference of the agency and accepting the amendment. I would merely clarify the definition of "environment" and extend the terms of reference of the agency, and I cannot understand the objection to that. In the interests of giving more teeth to the Environmental Protection Agency I would ask the Minister to accept these amendments.

Miss Harney

If I misunderstood Deputy Allen I apologise. Of course the agency can give their opinion under the existing Bill but I understood Deputy Allen to imply that the agency should be the decision-making body in relation to those matters. What we are doing here is defining environmental protection. Throughout the Bill functions are assigned to the agency in relation to environmental protection. If we were to accept, for example, Deputy Howlin's amendment which deals with the cultural heritage and the built environment, the agency would have a direct role in this regard. Section 61 gives the agency a supervisory role in relation to environmental protection, as defined in the Bill over local authorities. If environmental protection is to be defined to include the built environment and our cultural heritage the agency would have a direct supervisory responsibility in relation to planning matters and so on.

I do not see the point in putting in a definition of the environment if it is to have no meaningful effect thereafter. I believe we are trying to dance on the head of a pin. We have defined environmental protection widely enough to include the prevention, elimination and control of pollution and also the preservation of the quality of the environment, and I believe that definition is broad enough. It is not desirable to provide that the agency's role be so widespread as to involve planning, the built environment, our cultural heritage or even the social environment. The definition would be almost limitless. We want to keep the role of the agency as clear and as focused as possible. Bodies that do not have a clear focus tend to be very much advisory, drawing up reports and so on. If there was a fault with An Foras Forbartha, a body that did outstanding work, it was that they did not have the kind of teeth that this agency will have. They could make no decisions and were operationally under the direction of the Minister for the Environment of the day.

We are setting up a body who will be operationally independent and who will have very specific powers in relation to environmental protection. We are defining, for the purpose of those powers, environmental protection, which means powers and control over substances emitted into the atmosphere, water, soil, land, or whatever. That is what the focus of the agency should be. They will have a broader role in relation to advice, codes of practice, eco-labelling and other matters. They may hold an inquiry, publish reports or advise the Minister. They may deal as they see fit, in the interests of the quality of the environment, with matters such as the Burren and they may produce reports and make known their views if they so desire.

There is a view in some quarters that when this agency are set up there will be no more environmental problems and no more controversy, or if controversies arise the agency will deal with them and we will all be satisfied with the outcome. That is not the kind of body we are establishing. Controversies and difficulties will still arise and decisions will always have to be made with which many people might not agree, but what we are trying to do here is to set up, in relation to the natural environment, a body who are independent, transparent and properly resourced, a body who will be seen to be competent and who will make decisions on the basis of competence and fairness. That is what is lacking at present. This body, when set up, will have credibility and public support and, through their licensing role and, in some instances, their advisory role and other functions in relation to landfill sites, drinking water, sewage treatment plants and so on, will be able to ensure that environmental rules, regulations and laws are implemented as fully and as consistently as possible throughout the country.

An Leas-Cheann Comhairle

Is Deputy Howlin anxious that I put the question?

Mr. Howlin

Since I cannot impact on the Minister I have no option but to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment No. 17 not moved.

Mr. Garland

I move amendment No. 18:

In page 10, subsection (2) (c), line 32, to delete "would" and substitute "could".

This is a very simple amendment which proposes to delete the word "would" and substitute "could". It is an amendment to subsection (2) (c) which reads: "the disposal of waste in a manner which would endanger human health". There is a problem with the word "would" in that it is typical of the approach taken by industry and all those who promote dangerous technology, such as incineration. A very recent example is the case of the Dupont incinerator in Derry where the promoters demanded that people prove that this technology would be a danger to their health. It is not up to the people to prove that technology is unsafe but rather it is up to those promoting it to prove that it is, beyond any reasonable doubt, safe, and it is clear in the Du Pont case that they are unable to do so. Even the best researchers in America are unable to state categorically that incineration is safe.

The legislators of this country were elected by the people to govern for the people and to protect the people rather than to legislate for industry which could endanger the health of those they are paid to protect. If there is any doubt whatsoever about the safety of a process, every precaution must be taken to prove its safety before it is permitted to start or, indeed, to continue operation if it has already started. It is totally unacceptable that ordinary people do not have available to them the expertise, technology and money necessary to prove that their health and wellbeing is endangered by such industry should have to do so. Therefore I contend that to insert the word "could" would greatly strengthen this clause. The word "would" is very weak and clearly puts the onus of proof on those people objecting to an industry. By inserting the word "could" the ball would be back in the court of industry, which is what should be done. I commend this amendment to the House.

Miss Harney

This amendment would introduce an element of vagueness and uncertainty into the definition of pollution in respect of waste. Were the amendment to be adopted the definition of pollution would extend to almost every case where waste is disposed of, as even the most well-managed and carefully operated disposal operations may contain some element of risk. This could put at risk the operation of waste facilities, which will continue to be an essential requirement in ensuring proper and safe disposal of waste.

Section 52 (2) (c) requires the agency to have due regard to the principle of precaution when carrying out their functions. It is clear, therefore, that activities which pose a real risk to the environment would be controlled in a preventive manner by the agency.

Section 81 (3) (e) prevents the agency granting a licence unless they are satisfied that an activity will not cause significant pollution. Were the Deputy's amendment adopted this could lead to the agency's ability to licence activities being dramatically restricted. It could be argued, for instance, that since practically all waste disposal was pollution, all large scale waste disposal was significant pollution. I am sure that this is not what the Deputy intends and I would ask him to withdraw his amendment.

Without being flippant about the matter, virtually every activity has a potential to cause serious environmental pollution. I accept that the Deputy is trying to adopt a preventive approach, which is already adopted in section 52 (2) (c), but to delete "would" in favour of "could" would make the clause so vague and so uncertain that I do not think it would work.

Mr. Allen

I understand the anxieties of Deputy Garland and I also recognise the point being made by the Minister, but in the absence of any national management waste plan at the moment the Minister should not be talking about vagueness; at present we do not have an idea of what we are about in relation to waste. We have been through this matter already this morning and I do not want to hold up the proceedings. Because we are in ignorance at the moment, much waste is being dumped in drains, ditches, fields and rivers. It is unsatisfactory for the Minister to criticise an amendment because of its vagueness. We are living in ignorance because of the absence of a waste management plan. I recognise inherent dangers in the Minister's acceptance of the amendment in that every project could be brought into question, but the Minister must realise that until there is a plan in place there will be vagueness and ignorance.

Mr. Garland

Up to a point I accept what the Minister has said. As an attempt to arrive at a compromise, I suggest that the word "would" be deleted and the words "could be reasonably held to" inserted. The clause would then read: "the disposal of waste in a manner which could be reasonably held to". Would the Minister consider that a reasonable amendment?

An Leas-Cheann Comhairle

Even if the Minister would, Deputy Garland, we do not usually counsel that kind of ad hoc approach to amendments.

Mr. Howlin

It would not be without precedent.

An Leas-Cheann Comhairle

In exceptional circumstances.

Mr. Garland

Could the Minister at least comment on my proposal?

Miss Harney

If we have learnt any lesson from the past couple of weeks it would be that a minefield is created when laws are enacted which contain vague and uncertain phrases such as "as far as is practicable" and "as reasonably can be expected". I know what Deputy Garland is trying to achieve but I believe it is covered by the Bill. As I said, anything could potentially cause damage if something went wrong. At even the best operated disposal site an accident could cause damage. We are not trying to cover that eventuality but to deal with the situation where the potential for damage is certain rather than possible. As I understand it, we are not trying to deal with possibilities and vagueness but with certainties.

The phraseology in the Bill which deals with the disposal of waste in a manner which would endanger human health or harm the environment, covers even a risk to waters, the atmosphere, land, soil, plants or animals; or a nuisance caused by noise or odours; or an adverse effect on the countryside or places of special interest. Quite honestly, I consider that wording to be very comprehensive and clear.

Mr. Garland

I wish to take the opportunity to go back on a couple of points made by the Minister. She has implied that I am over-idealistic and unrealistic.

Miss Harney

No.

Mr. Garland

I do not accept that at all. The Minister also keeps saying that the Bill, if it is passed, will not solve all our problems. Of course I accept that totally. There are risks with everything and with the best will in the world, and even if every amendment we supported were incorporated in the Bill, there would still be potential problems. If the agency had an annual budget of £500 million and thousands of employees there would still be mistakes made, there would still be pollution and there would still be problems. This is not a perfect world and I am sure we will realise that. Nevertheless, I do consider that unless we aim very high we will finish up with a very poor environment. We have to raise our sights as high as is feasible. Of course we will not realise our target. Perhaps if we raise it to 95 per cent of what is possible we will achieve 80 per cent. If we were to aim for an achievement of 50 per cent we would probably reach 30 per cent. That is the difference between my philosophical approach and that of the Minister.

I do not wish to be considered anti-industry or anti-job, because the Green Party are neither one nor the other. I realise that we cannot be over-fundamentalist in our approach and that there has to be compromise. There has to be industry and there has to be jobs. We are all here to try to find a balance in this regard but I do not consider that that approach is being reciprocated on the other side of the House.

An Leas-Cheann Comhairle

Nevertheless, may I take it that Deputy Garland is prepared to withdraw his amendment?

Mr. Garland

I shall withdraw the amendment, with the right to re-submit it on Report Stage.

Amendment, by leave, withdrawn.

Amendment No. 19 not moved.

An Leas-Cheann Comhairle

Amendment No. 20 is in the name of Deputy Seán Ryan. As amendment No. 262 is related the two amendments may be taken together.

Mr. Ryan

I move amendment No. 20:

In page 10, subsection (2) (d), line 42, after "environment" to insert "including cases where extension/ addition to runways results in increased noise levels in the environs of the airports".

The purpose of the amendment is to make provision in the Bill for control and safeguards in relation to emissions from aircraft. The Bill clearly states that the legislation will not apply to noise caused by aircraft. Aircraft noise is a major issue in my constituency and the fact that it is not referred to in the Bill is scandalous. The omission is a deliberate act by the Department to ignore a major issue that has been left aside for years. I accept the role of civil aviation in this country and throughout the world and I also acknowledge the huge contribution it has made to industry, particularly in my constituency where, at Dublin Airport, Aer Rianta and Aer Lingus have created thousands of jobs. However, there are knock-on effects from such development and the huge increase in the use of civil aviation. Those effects impact on my constituents and on other constituents throughout the country. There is no legal recourse for people who feel that they are affected by developments that have taken place. In a piecemeal effort to deal with the problem of noise pollution the Department of Tourism, Transport and Communications passed the ball back to Aer Rianta. This problem is recognised throughout Europe. The EC has issued directives on the limitation of noise emissions from subsonic jet aeroplanes, the most recent being 4 December, 1989. Yet when people make a legitimate case to any Government Department inevitably they are told that that Department have no responsibility. Since the provisions of this Bill deal with the environment generally I contend they should take that problem on board and devise mechanisms to deal with it properly, giving people affected by noise pollution some recourse particularly in the case of extensions of airports. The agency should be directed by the Department to devise the necessary legislative provisions in this area. Since noise pollution will affect hundreds of people and their families, residing in such areas for generations, surely it is not asking too much that the Government should devise specific mechanisms providing them with some legislative recourse, compensation or, at the very minimum, some insulation in their dwellings not at present available. Perhaps the proposed agency might consult Eolas, examine the noise contours, examine what is required in other parts of Europe and the level of insulation required. We must remember that we are talking about a Bill whose provisions are intended to protect our environment when it is of enormous importance that we put people first and devote our attentions to them. One does not have to contend that the choice is between the creation of jobs in developments at airports and the continuance of such noise pollution. A proper balance can be struck, which is what we are endeavouring to achieve in this Bill.

I contend my amendment would deal adequately with that problem, giving some credence to our concern for and support of people living within the vicinity of airports. I hope the Minister will see the justification of my case and will accept my amendment.

Mr. Garland

I wholeheartedly support Deputy Ryan's amendment. A very serious problem we have not addressed is that of noise pollution, particularly in places like Dublin Airport and its environs, although this would be a problem experienced by residents in housing located near all airports. The same problem will affect people living within, say, 50 yards of a proposed motorway. Here I would have to say that the attitude of the Department of the Environment to giving reasonable grants for double glazing in houses located near an airport or say, the Southern Cross motorway, is very niggardly and most unsatisfactory. I do not know whether any Member lives within 50 yards of a motorway. Anybody finding themselves in such circumstances would be better off having their house demolished, to be included within the parameters of such a motorway, and be rehoused elsewhere. At present such people are being totally neglected. The proposed Environmental Protection Agency should be in a position to help such people subjected to excessive noise.

Miss Harney

These amendments seek to bring the control of noise resulting from runway extensions within the ambit of the Bill. However, they seek to do so in two different ways. While I appreciate the Deputy's concern on this matter I have problems in accepting what is proposed for reasons I will outline. I must also draw attention to the improved noise provisions that have been included in Part VI of the Bill and which are relevant to this problem. For example section 104 makes provision for the regulation of noise which could apply to noise from aircraft in specified circumstances. Section 105 enables the local authority or the agency in relation to a licensable activity to take action to prevent or limit noise by serving a notice on the person in charge of the activity concerned. Therefore, the provisions for noise control, are substantially enhanced by this Bill. However, I do not wish to give the impression that all aircraft noise will be ended by the operation of these new provisions. There are international controls in this matter which I will come to later.

To return to the amendments proposed, the first amendment seeks to include increased noise levels as a result of the extension of runways in the definition of environmental pollution contained in section 4. This definition is included primarily for the purposes of the integrated pollution control licensing system contained in Part IV of the Bill. Airfields are not licensable activities for the purposes of the Bill. Therefore, the adoption of this amendment would be inappropriate in purely drafting terms. It would also be inappropriate to include the extension of runways in the licensing system as this is a once-off development which is subject to the planning process, and in certain cases to the environmental impact assessment procedure. The potential noise increase would be a matter for consideration as part of the planning and environmental impact assessment systems and would not be appropriate for the ongoing licensing process to be operated by the agency.

The second amendment seeks to dilute the exemption provided for aircraft in section 106 which introduces a simplified District Court complaints procedure in respect of neighbourhood noise. It would not be appropriate to include aircraft noise under this procedure as the operators of aircraft and airports would be open to unlimited complaints even if such complaints were unfounded in terms of practical operational procedures. It is important also to realise that there are controls on aircraft noise contained in various international conventions and these controls are in force in Ireland. In this connection it has to be accepted that air transport is an international activity and needs to be controlled principally by international arrangements.

Under EC requirements and in accordance with national regulations aircraft must be certified to noise standards set down by the International Civil Aviation Organisation — ICAO — if they are to operate at Irish airports. In addition, noise restrictions are placed on the earlier generations of aircraft — called "Chapter 2" aircraft — and such aircraft can no longer be added to the aircraft register in the State. A number of these "Chapter 2" aircraft have already been replaced by later models which comply with the more stringent noise certified requirements as set down by the ICAO. The remaining "Chapter 2" aircraft will be phased out over time.

The Airport By-laws — made by the Minister for Tourism, Transport and Communications under section 16 of the Air Navigation and Transport Act, 1950, as amended — applicable to the three State airports at Dublin, Shannon and Cork, are currently being comprehensively updated and will significantly prohibit, (a) aircraft engines from being operated for testing other than in a place approved for such purpose by or on behalf of the Minister for Tourism, Transport and Communications and (b) the ground running of engines for testing which must not be done outside hangars, from 2300 hours to 0700 hours or at other times specified by the Minister.

I might add that there is provision in paragraph 13.1 of the First Schedule for the testing of engines, turbines or reactors where the floor area exceeds 500 square metres. That provision will allow the agency to license those activities and, obviously, to place controls and restrictions in relation to noise.

In the light of the circumstances I have outlined I do not consider I can extend further existing noise controls in the provisions of this Bill in so far as aircraft are concerned.

Night flying between 2300 and 0700 hours at Dublin Airport is extremely limited and is confined largely to charter flights. Aircraft operating during this period must adhere to arrival/departure procedures, consistent with operational requirements, designed to minimise noise levels. Shannon Airport, as a transatlantic international airport, does have some flights between 2300 hours and 0700 hours but, again, the number of such flights is small. There is no flying at Cork Airport between 2300 hours and 0700 hours but, exceptionally, a short extension beyond 2300 hours is specifically requested by an airline during the summer period.

Mr. Ryan

I very much regret the Minister is not prepared to take on board the specific problems to which I referred. While she referred to noise factors in relation to aircraft and airports, it is clear that at present there is no limit on noise pollution occasioned by aircraft. This means that residents within the vicinity of airports cannot, as of right, claim compensation for such noise pollution.

Both amendments refer to cases where additions to runways result in increased noise levels in the environs of the airport. We are talking only about a few specific areas where runway extensions are envisaged. That happened in Dublin airport and when the Shannon stopover problem is solved I have no doubt that a second runway will be required in Dublin Airport.

Traffic through Dublin airport is increasing by 18 per cent per annum. People living near the airport are seriously affected by the noise. That was acknowledged by the Minister for Tourism, Transport and Communications who gave Aer Rianta responsibility to come to an agreement with the residents of the area. We want this covered in the Bill so as to copperfasten the right of people in this regard.

In her reply the Minister did not refer to my suggestion that the agency could set up a body to adjudicate on this. We know the importance of the aviation industry to our economy and that we cannot have people seeking compensation for noise problems. This was taken on board in our amendment. People in my constituency feel very strongly about this noise pollution. It is all very well for the Minister to say that the EC is also concerned about this, but when this was first put to the former Minister for Tourism, Transport and Communications he clearly indicated that the people had no rights and that what they were being given in compensation for the acknowledged noise inconvenience was just an offer.

We are not trying to establish a precedent with the amendment but these people are clearly affected by noise pollution. There should be some mechanism in the Bill to define acceptable levels of noise. That is not an unreasonable request. People should know that they are entitled to a fixed amount of compensation or insulation for their homes. I gather that the Minister has a certain amount of sympathy for my case. On the basis of the Minister's past commitment to environmental protection I hope that sympathy can be extended to giving a commitment to taking the problems I referred to this afternoon on board in the Bill.

Miss Harney

Much of what the Deputy is concerned about is covered in sections 104 and 105 and under the licensing provisions in relation to the testing of engines. What is excluded under section 106 is aircraft in the sky as opposed to aircraft on the ground and the making of engines. It is a difficult international issue. Because of the international aspect of the business it is controlled by international regulations. It is an extremely difficult issue and I sympathise with much of what Deputy Ryan has said. However, regulations can be made under sections 104 and 105 to give us extensive powers in relation to noise. At the moment, the legislation in that regard is very unsatisfactory. Certainly, it will be possible under these regulations to greatly improve the enforcement and complaints mechanisms and to control noise. It should be possible to modernise the legislation in relation to noise pollution and make it more enforceable than it is at present. At present it is dealt with almost exclusively on a nuisance basis and it has become difficult to enforce controls.

All of us have experienced noise pollution not just of the type to which Deputy Ryan referred but in relation to a host of activities. For instance, many industrial activities go on throughout the night in premises adjoining residential properties. That can be extremely annoying for residents. I have had some experience of that. We need to improve our legislative controls in this area and that is why we used this Bill to bring in new measures to deal with noise pollution. I accept that aircraft are excluded under section 106 and are dealt with while they are in the sky by international regulations and standards with which we comply. The Minister will shortly make new regulations in regard to this matter.

Mr. Ryan

I do not intend to pursue this matter much further. I do not accept what the Minister said, that the problems I have identified are dealt with in the Bill. I want the problem dealt with in the Bill and a mechanism set up to deal with complaints. We are talking about aircraft taking off from a new runway and the extension of an existing runway. That is not incorporated in the Bill. I feel strongly about this and I will be pressing the amendment.

Amendment put.

The Committee divided: Tá, 55, Níl, 67.

Tá

• Ahearn, Therese.
• Allen, Bernard.
• Barnes, Monica.
• Bell, Michael.
• Belton, Louis J.
• Browne, John (Carlow-Kilkenny).
• Bruton, John.
• Byrne, Eric.
• Carey, Donal.
• Connaughton, Paul.
• Connor, John.
• Cosgrave, Michael Joe.
• Cotter, Bill.
• Creed, Michael.
• Currie, Austin.
• D'Arcy, Michael.
• Deenihan, Jimmy.
• De Rossa, Proinsias.
• Dukes, Alan.
• Enright, Thomas W.
• Farrelly, John V.
• Ferris, Michael.
• Finucane, Michael.
• Flanagan, Charles.
• Foxe, Tom.
• Garland, Roger.
• Gilmore, Eamon.
• Gregory, Tony.
• Hogan, Philip.
• Howlin, Brendan.
• Kavanagh, Liam.
• Kemmy, Jim.
• Kenny, Enda.
• Lowry, Michael.
• McCartan, Pat.
• McCormack, Pádraic.
• McGinley, Dinny.
• McGrath, Paul.
• Mitchell, Gay.
• Noonan, Michael.
• (Limerick East).
• O'Brien, Fergus.
• O'Shea, Brian.
• O'Sullivan, Gerry.
• O'Sullivan, Toddy.
• Quinn, Ruairí.
• Rabbitte, Pat.
• Reynolds, Gerry.
• Ryan, Seán.
• Sherlock, Joe.
• Spring, Dick.
• Stagg, Emmet.
• Taylor, Mervyn.
• Taylor-Quinn, Madeleine.
• Timmins, Godfrey.
• Yates, Ivan.

Níl

• Ahern, Bertie.
• Ahern, Dermot.
• Andrews, David.
• Aylward, Liam.
• Barrett, Michael.
• Brady, Gerard.
• Brady, Vincent.
• Brennan, Mattie.
• Brennan, Séamus.
• Browne, John (Wexford).
• Burke, Raphael P.
• Calleary, Seán.
• Callely, Ivor.
• Clohessy, Peadar.
• Connolly, Ger.
• Coughlan, Mary Theresa.
• Cullimore, Séamus.
• Daly, Brendan.
• Davern, Noel.
• Dempsey, Noel.
• Dennehy, John.
• de Valera, Síle.
• Fahey, Frank.
• Fahey, Jackie.
• Fitzgerald, Liam Joseph.
• Fitzpatrick, Dermot.
• Flood, Chris.
• Flynn, Pádraig.
• Gallagher, Pat the Cope.
• Harney, Mary.
• Hillery, Brian.
• Hilliard, Colm.
• Hyland, Liam.
• Jacob, Joe.
• Kelly, Laurence.
• Kirk, Séamus.
• Kitt, Michael P.
• Kitt, Tom.
• Lawlor, Liam.
• Lenihan, Brian.
• Leonard, Jimmy.
• Leyden, Terry.
• Lyons, Denis.
• McCreevy, Charlie.
• McEllistrim, Tom.
• Morley, P.J.
• Noonan, Michael J.
• (Limerick West).
• O'Connell, John.
• O'Dea, Willie.
• O'Donoghue, John.
• O'Hanlon, Rory.
• O'Keeffe, Ned.
• O'Malley, Desmond J.
• O'Rourke, Mary.
• O'Toole, Martin Joe.
• Power, Seán.
• Quill, Máirín.
• Reynolds, Albert.
• Roche, Dick.
• Stafford, John.
• Treacy, Noel.
• Tunney, Jim.
• Wallace, Dan.
• Wallace, Mary.
• Wilson, John P.
• Woods, Michael.
• Wyse, Pearse.

Tellers: Tá, Deputies Howlin and Ryan; Níl, Deputies Dempsey and Clohessy.

Amendment declared lost.

Amendments Nos. 21 and 22 not moved.

Question proposed: "That section 4 stand part of the Bill".

Mr. Garland

I would refer to subsection (2) (c) dealing with the disposal of waste in a manner which would endanger human life. There is a serious omission in the subsection in that the words "or energy" should have been inserted after the word "waste". I propose to enter an amendment to that effect on Report Stage.

Question put and agreed to.

SECTION 5.

An Ceann Comhairle

Amendment No. 23 is in the name of the Minister. Amendment No. 25 is an alternative and I am suggesting therefore that we discuss amendments Nos. 23 and 25 together. Agreed.

Miss Harney

I move amendment No. 23:

In page 11, lines 5 to 10, to delete subsection (1) and substitute the following:

"(1) Subject to subsection (3), a reference in this Act to the use of the best available technology not entailing excessive costs to prevent or eliminate, or where that is not practicable, to limit, abate or reduce an emission from an activity, shall be construed as meaning the provision and proper maintenance, use, operation and supervision of facilities which, having regard to all the circumstances, are the most suitable for the purpose."

This amendment clarifies that there is an onus of prevention and elimination of pollution and only where this is not practicable is the solution of limiting, abating or reducing pollution an acceptable option. Even without this amendment, it is my understanding that the application of the best available technology not entailing excessive cost would require such an approach. However, I want this matter to be transparent and that is why I am introducing this clarification in the wording of the subsection. This wording is also in line with the principle of precautionary action at section 52 (2) (c), which I introduced by amendment in the Seanad.

The amendment to section 81 is consequential on the amendment to section 5. If my amendment is carried, Deputy Gilmore's amendment which seeks to delete the reference to the circumstances of the case will fall. In any event that amendment is unacceptable to me as it would turn what is intended to be a flexible pollution prevention strategy into an administrative straitjacket.

Mr. Byrne

The Minister's amendment is not satisfactory to those of us in New Agenda. Section 5 quite clearly releases established industrial units or factories from the full repercussions of the legislation. It is quite understandable that any new plant coming on stream should start off with a clean sheet, but it is not the new enterprises which are the cause of our present difficulties. Existing industrial practices are currently causing headaches to many environmentalists, communities and individual members of the public.

It would be wrong if shoddy practices were engaged in by either industry or others. We are trying to clean up such activities which are causing so much inconvenience and possible damage to the health of people and livestock. Therefore, we should recognise bad practices as an established activity that somehow or other should not be covered fully. In subsection (3) (b) reference is made to the cost which would be incurred in improving or replacing the facilities referred to in relation to the economic situation. Essentially, the Minister is saying if it costs money to improve, to eradicate or to remove the cause of pollution, emissions, etc., that somebody could plead inability to improve their methods of operation on grounds of cost.

I do not think it would be right morally or in any other way to allow a community to suffer from emissions because an argument is being put forward that it would cost too much too improve production methods or the method of incinerating waste in industry. I do not accept that the Minister's amendment addresses the problems which Deputy Gilmore has raised in his amendment. I request the Minister to look again at this amendment and accept the reservations that have been expressed.

Mr. Garland

This debate has become confused because we are discussing the proposed new subsection (1) of section 5 which is similar to what we had already. The ministerial amendment is basically acceptable because it is slightly better than what existed previously. We have already debated part of this subsection under my amendment No. 24 which seeks to delete the words "best available technology not entailing excessive costs". With that proviso I support The Workers' Party——

Mr. Byrne

Excuse me, New Agenda.

Mr. Garland

I beg your pardon. I would like to support amendment No. 25 in the name of Deputy Gilmore. I presume that is in order because the words "having regard to all the circumstances," appear in the original Bill and in the Minister's amendment. Presumably that can be taken in due course. The words "having regard to all the circumstances" are a general catchall. It is imprecise. The Bill would be greatly strengthened if those words could be deleted.

An Ceann Comhairle

I have to advise Deputy Garland that amendment No. 24 in his name cannot now be moved. It was dealt with earlier with amendment No. 14. That amendment in Deputy Garland's name was lost and, consequently, amendment No. 24 cannot now be moved. That is the procedure and I hope the Deputy will accept it.

Mr. Garland

I am disappointed. I thought after two and a half years I understood how the House works, but it seems I am still learning. It was not my idea to take these three amendments together. Are you telling me now that if I wanted to formally press one of my amendments, I should have pressed amendment No. 14? Is that correct?

An Ceann Comhairle

That is so. My note here indicates it must have been pressed because it has been indicated to me that it was lost.

Mr. Garland

That is not correct. I did not press amendment No. 14, I withdrew it.

An Ceann Comhairle

You withdrew the amendment?

Mr. Garland

Is it in order for me then to press amendment No. 24?

An Ceann Comhairle

My note says, and it has been confirmed, that your amendment No. 14 was negatived.

Mr. Howlin

By way of clarification——

An Ceann Comhairle

That being the case, amendment No. 24 in the name of Deputy Garland falls.

Mr. Garland

Without wishing to interrupt you, can you say in what way my amendment No. 14 was negatived? It was not put to the House.

An Ceann Comhairle

I gather it was a voice vote.

Mr. Garland

I do not think so. Can somebody else confirm that?

An Ceann Comhairle

Let us hear Deputy Howlin who might throw some light on the subject.

Mr. Howlin

Obviously I make notes as I go along. As you have advised, amendment No. 14 was put to the House, voice voted, and lost. That is what I have in my note. I understood they were taken together for debate purposes. I remember distinctly Deputy Garland saying he was unhappy at their being grouped but in the interests of saving time would not involve himself in a procedural wrangle. You are right in saying amendment No. 14 was put and lost on a voice vote. I understood — and I am here a little longer than Deputy Garland — that that would not impact on being able to put amendments Nos. 24 and 26 because they had been discussed in a grouped fashion but that when they were reached they could be put.

An Ceann Comhairle

I understand it is more complicated. They were composite amendments and one was contingent on the other. If amendment No. 14 was negatived — as you accept it was — then my note indicates that amendments Nos. 24 and 26 cannot be moved. They were related.

Mr. Howlin

Related, but not consequential.

An Ceann Comhairle

Amendments Nos. 14 and 24 were consequential on amendment No. 26 and were discussed together. When amendment No. 14 fell, amendments Nos. 24 and 26 could not, therefore, be moved.

Mr. Howlin

On a procedural point, I do not see how they are consequential. The defeat of amendment No. 14 still allows amendment No. 24 to stand alone although they were discussed in group.

An Ceann Comhairle

My note is quite clear that amendments Nos. 14 and 24 were consequential on amendment No. 26. That is the reason they cannot be moved.

Mr. Howlin

I do not see how they could be consequential; surely, they stand alone.

An Ceann Comhairle

It was put as a composite proposal.

Mr. Howlin

By way of clarity, what was put?

An Ceann Comhairle

Deputy Garland's amendment No. 14.

Mr. Howlin

This has implications for the way in which we deal with the remaining amendments. A sheet has been circulated to the House which has grouped certain amendments. My understanding is that those which are grouped for discussion purposes are discussed together but the taking of one does not prohibit the pressing of another later on, unless they are so linked that one——

An Ceann Comhairle

That is the point, Deputy; they were so linked.

Mr. Howlin

I fail to see it.

An Ceann Comhairle

That is my decision. It is clear to me they were so linked. In respect of the Minister's amendment, which is before us now, I should like to say——

Mr. Howlin

It was not pointed out to us when amendment No. 14 was put.

An Ceann Comhairle

In respect of the Minister of State's amendment, amendment No. 23, I should say also for the information of the House that if the amendment is agreed amendments Nos. 24 and 25 cannot be moved. Let us be clear about this. Are there any other observations on the Minister of State's amendment or on the related amendment, amendment No. 25? Amendments No. 23 and 25 are being discussed together.

Amendment put.

The Committee divided: Tá, 64; Níl, 57.

Tá

• Ahern, Dermot.
• Andrews, David.
• Aylward, Liam.
• Barrett, Michael.
• Brady, Gerard.
• Brady, Vincent.
• Brennan, Mattie.
• Brennan, Séamus.
• Browne, John (Wexford).
• Calleary, Seán.
• Callely, Ivor.
• Clohessy, Peadar.
• Connolly, Ger.
• Coughlan, Mary Theresa.
• Cullimore, Séamus.
• Daly, Brendan.
• Davern, Noel.
• Dempsey, Noel.
• Dennehy, John.
• de Valera, Síle.
• Fahey, Frank.
• Fahey, Jackie.
• Fitzgerald, Liam Joseph.
• Fitzpatrick, Dermot.
• Flood, Chris.
• Flynn, Pádraig.
• O'Toole, Martin Joe.
• Power, Seán.
• Quill, Máirín.
• Reynolds, Albert.
• Roche, Dick.
• Stafford, John.
• Gallagher, Pat the Cope.
• Harney, Mary.
• Hillery, Brian.
• Hilliard, Colm.
• Hyland, Liam.
• Jacob, Joe.
• Kelly, Laurence.
• Kirk, Séamus.
• Kitt, Michael P.
• Kitt, Tom.
• Lenihan, Brian.
• Leonard, Jimmy.
• Leyden, Terry.
• Lyons, Denis.
• McCreevy, Charlie.
• McEllistrim, Tom.
• Morley, P.J.
• Noonan, Michael J. (Limerick West).
• O'Connell, John.
• O'Dea, Willie.
• O'Donoghue, John.
• O'Hanlon, Rory.
• O'Keeffe, Ned.
• O'Malley, Desmond J.
• O'Rourke, Mary. Treacy, Noel.
• Tunney, Jim.
• Wallace, Dan.
• Wallace, Mary.
• Wilson, John P.
• Wyse, Pearse.

Níl

• Ahearn, Therese.
• Allen, Bernard.
• Barnes, Monica.
• Bell, Michael.
• Belton, Louis J.
• Browne, John (Carlow-Kilkenny).
• Byrne, Eric.
• Carey, Donal.
• Connaughton, Paul.
• Connor, John.
• Cosgrave, Michael Joe.
• Cotter, Bill.
• Creed, Michael.
• Currie, Austin.
• D'Arcy, Michael.
• Deenihan, Jimmy.
• De Rossa, Proinsias.
• Dukes, Alan.
• Enright, Thomas W.
• Farrelly, John V.
• Ferris, Michael.
• Finucane, Michael.
• Flanagan, Charles.
• Foxe, Tom.
• Garland, Roger.
• Gregory, Tony.
• Hogan, Philip.
• Howlin, Brendan.
• Kavanagh, Liam.
• Kemmy, Jim.
• Kenny, Enda.
• Lowry, Michael.
• McCartan, Pat.
• McCormack, Pádraic.
• McGahon, Brendan.
• McGinley, Dinny.
• Mac Giolla, Tomás.
• McGrath, Paul.
• Mitchell, Gay.
• Moynihan, Michael.
• Noonan, Michael. (Limerick East)
• O'Brien, Fergus.
• O'Sullivan, Gerry.
• O'Sullivan, Toddy.
• Pattison, Séamus.
• Quinn, Ruairí.
• Rabbitte, Pat.
• Reynolds, Gerry.
• Ryan, Seán.
• Shatter, Alan.
• Sherlock, Joe.
• Spring, Dick.
• Stagg, Emmet.
• Taylor, Mervyn.
• Taylor-Quinn, Madeleine.
• Timmins, Godfrey.
• Yates, Ivan.

Tellers: Tá, Deputies Dempsey and Clohessy; Níl, Deputies Flanagan and Howlin.

Amendment declared carried.

Amendments Nos. 24 and 25 not moved.

An Leas-Cheann Comhairle

Is Deputy Garland pressing amendment No. 26?

Mr. Garland

No.

Mr. Howlin

On a point of clarification, how could amendment No. 26 be put while amendment No. 24 could not, subsequent to amendment No. 14 being put?

An Leas-Cheann Comhairle

Amendment No. 26 was not tied to amendment No. 23 as the others were.

Mr. Howlin

I will not pursue the point.

Amendment No. 26 not moved.

An Leas-Cheann Comhairle

We now come to amendment No. 27 in the name of Deputy Gilmore, which falls——

Mr. Byrne

Will you explain why it falls?

An Leas-Cheann Comhairle

Deputy Gilmore is not here to move it.

Mr. Byrne

I will be moving the amendment.

An Leas-Cheann Comhairle

Have you the authority of the Deputy in question to move it?

Mr. Byrne

I certainly do, in fact I am under instructions to be here to move it.

An Leas-Cheann Comhairle

There were other amendments in the name of Deputy Gilmore and nobody came to the House to move them.

Mr. Byrne

I explained it more fully to the Ceann Comhairle when he was in the Chair.

An Leas-Cheann Comhairle

If the Deputy is indicating that he has been authorised by Deputy Gilmore to move amendment No. 27 he is perfectly entitled to do so.

Mr. Byrne

Thank you very much. I was worried for a while, as I thought democracy had gone astray.

An Leas-Cheann Comhairle

The Chair cannot know what people are thinking.

Mr. Byrne

There are only six Members in the New Agenda Party and I imagined you would have noticed that one deputises for another in moving amendments.

An Leas-Cheann Comhairle

Officially there is not a party, there are six Independents. However, we will not argue about that. The Deputy will move amendment No. 27; amendment No. 30 is related and, therefore, the two may be taken together.

Mr. Byrne

I move amendment No. 27:

In page 11, subsection (2) (a), to delete line 12.

I inadvertently drifted into this amendment earlier and, therefore, I will reiterate some of the points. It is not fair, right or proper that, for example, the current state of technical knowledge or the requirements of environmental protection should not apply to an established activity. The reason we are looking for the deletion of the line is that we believe the legislation should apply to all activity regardless of the length of time in which the activity has been engaged. Throughout the country, environmental problems are being caused by a huge variety of annoying and disruptive practices with possible health-related effects on human beings and livestock. These activities include piggeries, certain methods of farming and abattoirs which very often are located in residential areas. Many residents in the inner city of Dublin are unfortunate enough to live close to abattoirs. Why should these activities not be covered in the legislation? Why should a coalyard adjacent to a residential area which emits massive quantities of coal dust into the atmosphere in bagging operations be able to argue that the best available technology requirement should not apply to them? I know of a coalyard in the Dublin south inner city area which badly polluted the atmosphere in the area as a result of their activities. It appears that the legislation will not apply to this coal yard as they are an established activity. Why should it not apply to them? I should like the Minister to elaborate on why the legislation will not apply to existing chemical factories. The explanatory memorandum states:

Section 5 defines the term "best available technology not entailing excessive costs" as it is used in the Bill. Provision is made to avoid any conflict of requirements under this section and under section 5 (3) of the Air Pollution Act, 1987. The use of best available technology not entailing excessive costs is a precondition for the grant of a licence under section 81 and must also be used for the control of genetically modified organisms under section 109.

I believe the provisions of the Bill should apply equally to established activities and to new plants coming on stream.

I ask the Minister to accept this amendment which is of tremendous importance to many communities who have been campaigning politically and otherwise to improve the quality of the environment in their districts. Companies and factories which cause pollution, annoyance and possible injury to health should not be allowed to evade the requirements of the legislation just because they are established activities.

Miss Harney

The Deputy misunderstands what precisely BATNEEC is all about. It is not my intention that all existing industries would not be licensed by the agency. It is proposed that the agency will initially begin operating BATNEEC as one of six measures they will have to take into account when deciding to licence an activity under the First Schedule. Obviously, this will begin with all new activities coming into Ireland.

With regard to existing activities covered by the First Schedule, it is envisaged that over time all of their licence applications will be reviewed by the agency and BATNEEC will be applied to them. It would be unreasonable on day one to suddenly expect older plants to apply the same kind of technologies which can be applied to new plants starting from scratch. That would be unreasonable and would not be playing the game fairly. Generally speaking, the older the activity the greater the pollution caused. It is envisaged that all activities covered by the First Schedule will be brought under the auspices of the agency for licensing purposes as quickly as possible.

Obviously technologies are changing as technical knowledge improves and so on. If the agency were to license in year one a particular activity and there were technological developments in that field in year two, does Deputy Byrne envisage that because there is an improved BATNEEC for that class of development that within a year or thereabouts of the activity having first been licensed it should be upgraded to the new standard? I do not think the Deputy envisages that that should be the case. Once a plant is licensed by the agency it will become an established activity, even if it is new. It is not envisaged, nor would it be desirable, that the agency should have to constantly go back to companies as technology improves and expect those changes to be put into practice instantaneously in cases although that might not be desirable or necessary from an environmental point of view.

When one is talking about matters relating to technology and technical knowledge it is probably more difficult to understand what is involved than when one is talking about buildings. For example, it has never been envisaged as planning criteria improve that we should require established buildings to be changed, knocked down and rebuilt from scratch. Even though standards improve and opinions on what is acceptable change it is not thought desirable under the planning system that a building should be knocked so that another building which would be more acceptable from a visual point of view could be put in its place. The reason we do not expect this is that when we are talking about physical buildings we seem to accept that they are there and that is the way they will be. However, when one is talking about technology we seem to think it is easier to put in place the kind of things which might be desired.

I assure Deputies it is intended to bring all existing activities in the First Schedule, for example, pharmaceutical and chemical companies, food processing companies and so on under the auspices of the Environmental Protection Agency as quickly as possible. Obviously regard will have to be had for the age of a plant. Some plants might be coming very near the end of their lives. For example, it might be envisaged that a plant will go out of operation in a year or two. If this is the case obviously it would not be desirable to require that plant to put in place the best available technology at that time.

With regard to their licensing role the agency will have to take a number of things, including BATNEEC, into account when deciding to grant a licence. There is an assumption that the best available technology not entailing excessive costs is the only criteria the agency will take into account when prescribing conditions for the licensee. First, the agency will have to be satisfied that any emissions from the activity will not result in the contravention of any relevant air quality standards specified under section 50 of the Air Pollution Act, 1987, and will comply with any relevant emission limit value specified under section 51 of the Air Pollution Act, 1987. Second, they will have to be satisfied that any emissions from the activity will not result in the contravention of any relevant quality standards for water, trade effluents and sewage effluents and standards in relation to treatment of such effluents and so on.

Third, they will have to satisfy themselves that any emissions from the activity of any premises, plant, methods, processes, operating procedures or other factors which affect such emissions will comply with, or will not result in the contravention of any relevant standard, including any standard for an environmental medium prescribed under regulations made under the European Communities Act, 1972. That obviously relates to the area of waste. Fourth, they will have to be satisfied that the noise from the activity will comply with regulations under section 104 and fifth, that any emission from the activity will not cause significant pollution. Therefore the best available technology is not the only matter that will have to be taken into account by the agency. It is not true to say that in order to be able to comply with high standards the best available technology is always required. Neither is it desirable that if the best available technology not involving excessive cost is put in place an investor can be assured, unless there is environmental pollution in which case the circumstances would be different, that he or she will not have to change the investment within a short period of time. If the Deputy's amendment is accepted it would require the agency to constantly review every licence as technology improves, even though that might be within a very short period from the time of the granting of the initial licence. I do not believe that would be necessary or desirable.

As I said earlier in reply to Deputy Garland's amendment on clean production, in the main we import technologies into Ireland and therefore we depend very much on developments elsewhere. The definition and the concept being used here are the ones most widely used in the developed world, that is the best available technology not involving excessive cost, together with other criteria. The Deputy's aim is to bring under the control of the agency all existing activities so that they would be licensed to higher standards. That matter would be more appropriate to section 80 which deals with the established activities. We will probably have a longer debate on this matter when we come to deal with that section. I want to make it perfectly clear that this agency will not only deal with new activities that are set up in the future but will be charged with reviewing licences and monitoring and enforcing conditions in relation to a large number of existing activities covered by the First Schedule to the Bill.

Mr. Garland

Having listened to Deputy Byrne and to the Minister I have not changed my views and I support Deputy Gilmore's two amendments.

Mr. Byrne

I do not accept what the Minister has put forward as being the only solution to the problem. She has argued that if the application of a licence is compulsory, over time the plant may change and it would be unfair to treat those engaged in existing activities in the same way as those who are about to set up new plants. Would the Minister not agree that existing activities should equally comply with the legislation? If that was provided for, the agency would be empowered, by not granting them a licence, to close down these plants or factories. That would not discriminate against existing activities but would compel them to comply with the legislation and if they did not do so the agency could withhold the granting of a licence to them.

I would like to refer to amendment No. 30 in which Deputy Gilmore proposes the deletion of subsection (2) (b). As regards old plants which are likely to pollute the environment and surrounding communities, how does the Minister intend to balance the question of the cost of improving these plants with the rights of the people living in surrounding communities? Subparagraph (iii) states: "the costs which would be incurred in improving or replacing the facilities referred to in subparagraph (ii) in relation to the economic situation of activities of the class concerned". Companies in particular are masters at claiming that their economic situation does not allow them to modernise their facilities in order to eliminate practices which pollute the environment.

The former McHenry's coalyard at Clanbrassil Street used the argument that they could not afford to bring in the protective gear necessary to prevent solid particles from being emitted into the atmosphere thus destroying the quality of life for those living in that part of Dublin's inner city. It is easy to allow companies to get off the hook on the grounds of their economic situation. I am thinking of the position whereby pollutants are emitted into the atmosphere from hospital incinerators. I can understand the argument made by hospital boards that they can ill afford to improve their facilities because the Government have not allocated sufficient funding to allow them to do so. Unless hospitals are given the money to improve the quality of incinerators they will continue to pollute the atmosphere. Most environmental pollution is caused by established activities and in many cases these activities are not included in the legislation. Basically, they can walk away from their responsibilities to the general public.

Miss Harney

There is a misunderstanding in relation to the application of the BATNEEC concept. It will not apply on a plant by plant basis. BATNEEC will be defined for a class of activity. There will be a BATNEEC for the chemical industry, the pharmaceutical industry, the food processing industry and so on. All industries within that sector will have to comply with that BATNEEC. It will not be sufficient for a particular industry to argue that the costs are prohibitive. If we are talking about excessive costs, those costs will relate to a class of activity rather than to individual activities. The agency will be required to specify BATNEECs for different classes of activity.

I take the point made by the Deputy that in many cases it is existing activities that have led to the need for the Environmental Protection Agency. It is the intention and will be the case that all existing activities covered by the First Schedule — in other words, all of the matters covered under the agency's licensing system — will be licensed by the agency. That cannot be done immediately. It is only fair and reasonable that existing activities that have particular technologies in place at the moment be given an amount of lead-in time to apply the higher standards. In some cases we are talking about an expense of millions of pounds. The change cannot come about overnight and I do not know of any instance in which such a change has been made overnight.

Technology can change in a matter of months. Something might be licensed today and then the technology involved could change in six month. If an industry invested £5 million or £10 million in technology when permission was granted and a licence approved, would it be reasonable to expect investment in new technology a couple of months later because of improvements in technology? If we were to go down that road there would be no investment in this country. There has to be some certainty that the technology that applies will be applicable for several years.

As I have said, applying the technology is only one aspect that the agency will have to consider in deciding whether to approve a licence. Application of technology is one of six conditions that must be fulfilled. Obviously, if serious pollution is being caused or if there is a possibility of serious pollution problems under air pollution, water pollution or waste disposal legislation then the agency would not grant a licence, even when the BATNEEC could be applied. I want to make that point perfectly clear.

In relation to classes of developed and existing activities, the Government envisage letting those classes of development know the time period for compliance with the BATNEEC and the agency's licensing system. That issue will take some consideration. Some sectors will be able to comply more easily and quicker than others. It is possible that older plants towards the end of their life would not be in a position to comply with the higher standards and would have to cease to operate because the new technologies could not be applied to the older plant. There would obviously be a question of new plant in the case of some industries and time would have to be provided for that.

Deputy Byrne seems to be under the impression that the agency will license only new activities and that everything that exists as of now will never come under the control of the agency. I do not want that impression to go out because that is not the case. Activities will be brought in on a class by class basis and as quickly as it is physically and practically possible, in what we believe to be a reasonable period of time, for those classes of development to meet the highest standards.

Question, "That the words proposed to be deleted stand", put and declared carried.

Amendment declared lost.

An Leas-Cheann Comhairle

We now come to amendment No. 28 in the names of Deputies Jim Mitchell, Carey and Allen. Amendment No. 31 is related. It is therefore proposed to take amendments Nos. 28 and 31 together for discussion purposes.

Mr. J. Mitchell

I move amendment No. 28:

In page 11, subsection (2) (a) (ii), line 14, after "protection" to insert "having regard to the significance and sensitivity of the existing environment".

The amendment speaks for itself. In areas of special environmental significance and sensitivity there may need to be requirements and provisions over and above those needed in normal instances. I ask the Minister to consider acceptance of this amendment.

Miss Harney

While I realise the intent of these amendments, I consider that the provisions of the section and the way in which BATNEEC is used in the Bill are sufficiently flexible to incorporate already the intentions of the Deputies in relation to the existing environment. For example, section 4 (1) defines environmental protection as including "the preservation of the quality of the environment". I have no doubt that the significance and sensitivity of that environment would be taken into account in any exercise involving an assessment of the best available technology not entailing excessive cost for the particular activity concerned.

The proposed amendments would have the effect of inserting a phraseology that could be difficult to define legally and thereby cause confusion when the agency come to interpret it. I do not believe the proposed amendment would add anything useful to the Bill. In addition, BATNEEC is only one of six grounds on which the agency must be satisfied before a licence can be granted. There would also appear to be some element of duplication between the two amendments. Amendment No. 28, affecting section 5 (2) (a) (ii), would not be necessary if the additional section 5 (2) (c) were inserted by amendment No. 31.

Mr. Garland

I am disappointed at the Minister's response to the amendments, which seem to be very reasonable. I do not see what possible harm the amendments could do; they may do a little bit of good, and anything that draws attention to the significance and sensitivity of our environment must be good. The Minister could well be right in one respect, in that if amendment No. 31 were accepted perhaps amendment No. 28 would not be necessary. I have no doubt that Deputy Mitchell will refer to that when he replies.

Mr. J. Mitchell

I take the point made by Deputy Garland. I should be very happy to withdraw amendment No. 28 if the Minister would accept amendment No. 31. I think this presents the Minister with an opportunity to show that she is not coming into the Chamber to defend every dot and comma but will accept genuine improvements to the Bill.

Miss Harney

I have already accepted several improvements to the Bill, Deputy, and it is my intention to do so in the remaining discussion on Committee Stage. Quite honestly, I do not consider the amendment to be necessary and it would be very difficult to interpret legally.

Amendment put and declare lost.

Amendment No. 29 not moved.

An Leas-Cheann Comhairle

Amendment No. 30 has already been discussed. Is that amendment to be withdrawn?

Mr. Byrne

I want to move amendment No. 30.

An Leas-Cheann Comhairle

Does the Deputy wish the question to be put on that amendment?

Mr. Byrne

I should like to speak on the amendment if I may.

An Leas-Cheann Comhairle

Does the Deputy wish that the question be put on that amendment?

Mr. Byrne

Am I not allowed to address the amendment now?

An Leas-Cheann Comhairle

No, it was discussed with amendment No. 27. Is the amendment withdrawn?

Mr. Byrne

No. I move amendment No. 30:

In page 11, subsection (2), lines 20 to 31, to delete paragraph (b).

Question, "That the words proposed to be deleted stand", put and declared carried.

Amendment declared lost.

Mr. J. Mitchell

I move amendment No. 31:

In page 11, subsection (2), between lines 31 and 32, to insert the following:

"(c) the significance and sensitivity of the existing environment.".

Amendment put and declared lost.

Mr. Byrne

I move amendment No. 32:

In page 12, subsection (4) (a), line 1, after "Pleanála" to insert ", each of the four prescribed authorities listed in section 21 (1) (a) of the Local Government (Planning and Development) Act, 1963".

If the Minister was accommodating, it would appear that what is sought in this amendment would be easily applied in that, subsection (3) (a) calls for a copy of the specification to be made available when the agency may, from time to time as occasion demands, specify the best available technology not entailing excessive costs for preventing, limiting, eliminating, abating or reducing such emissions as may be specified either from an activity or activities of a particular class or description and regard shall be had, in the administration of this Act, to any such specifications.

Section 5 (4) reads:

Whenever the Agency issues a specification under subsection (3) it shall cause, as soon as may be——

(a) a copy of such specification to be sent to the Minister,

That is perfectly acceptable. Then it continues:

each local authority,

Again, that is acceptable. Then the subsection continues:

An Bord Pleanála and such other bodies, if any, as may be prescribed.

Deputy Gilmore, in this amendment is seeking the insertion of the words: ", each of the four prescribed authorities listed in section 21 (1) (a) of the Local Government (Planning and Development) Act, 1963". That seems a fairly simple, straightforward request which should be equally acceptable.

Mr. Howlin

I support this amendment but would seek clarification from the Minister because I understand that similar amendments were tabled in the Seanad by Senators Ross and Hederman which the Minister did not accept. If I am correct, she said she accepted the principle and would prescribe the bodies by regulation. Perhaps she would explain why it would not be better to specify such bodies in the Bill rather than by way of regulation subsequently.

Miss Harney

Yes, I did give an undertaking in the Seanad. At the outset I want to say I do not have any disagreement with the spirit of what is intended here. Nonetheless I want to outline the difficulties involved. I did give an undertaking in the Seanad that I would prescribe the bodies that are prescribed in the Planning Acts, together with other bodies, because, of course, they are not the only bodies that are concerned about BATNEEC specifications. The difficulty about including specific organisations in the Bill on a statutory basis is the following. First of all, it is difficult to cover all the organisations in legislation, in that new organisations are established and so on. In relation to the existing specified organisations, I should say one of the four organisations to which Deputy Byrne referred no longer exists, that is the National Monuments Advisory Body, one of the four bodies prescribed in the Planning Acts. While it is the intention to prescribe other bodies, such as Bord Fáilte, the Arts Council, An Taisce, the other three bodies, there will be a large number of additional bodies that would have an interest in receiving from the agency the BATNEEC specifications made. Certainly it is the intention to prescribe as many bodies as could reasonably have an interest in this matter. I will certainly give an undertaking to that effect. If we include just the remaining bodies specified in the Planning Acts, and do not include others — off the top of my head I cannot think just how many more there would be; while I can think of some, the list is by no means conclusive at this stage — choosing some, putting them on a statutory basis and placing others on a different basis would not be desirable. It would be better to put every body on the same basis, which would mean that they would be prescribed by way of regulations. I would ask Members to accept that proposal.

An Leas-Cheann Comhairle

Is Deputy Byrne happy to withdraw amendment No. 32?

Mr. Byrne

On the grounds that one of the four bodies no longer exists I will be happy to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr. Byrne

I move amendment No. 33:

In page 12, subsection (4), between lines 8 and 9, to insert the following:

"(d) in making such specifications the Agency shall have regard to the need for an effective precautionary approach to safeguard the environment, where the Agency believes that damage or harmful effects are likely to be caused, even where there is not definitive scientific evidence to link emissions or discharges with detrimental environmental effects.".

Amendment put and declared lost.

Mr. J. Mitchell

I move amendment No. 34:

In page 12, between lines 8 and 9, to insert the following subsection:

"(5) The Agency shall issue a comprehensive specification of all such technology as soon as may be after the commencement of this Act and this comprehensive specification shall be revised and published annually thereafter.".

santhi

This amendment speaks for itself and has been tabled for the sake of completeness. Much has been said about the need for clarity so as to ensure that our rightful concern for the environment is not a hindrance to economic development, based on the belief that very many people interested in industrial development prefer to know exactly what they must deal with, to be certain about what are the environmental and other planning requirements. It was in that spirit that our addition was proposed.

Miss Harney

I know it may well sound unreasonable to say that I cannot accept this amendment but, quite honestly, I do not think it would be necessary for the agency, where they define a BATNEEC, to revise that specification every year, which would be required under the provisions of this amendment. That would place an enormous burden on the agency. Section 5 (3) (a) confers some flexibility on the agency to adopt a programme for specifying BATNEEC. In doing so, they would have regard to any specifications issued by the Commission of the European Communities or other member states. In the light of those specifications they could consider the need for a separate specification of their own, or adopt one from another member state. Pending the issue of a general specification for a particular class of activities the agency can specify BATNEEC requirements and the conditions to be attached to a specific integrated licence under Part IV of the Bill.

The publication of BATNEEC specifications for all activities immediately would be unnecessary in view of the stated intention to bring existing activities under the licensing system on a phased basis over a number of years. There is already adequate provision for a review of BATNEEC under section 5 (3) (a) if the need arises. I should say that BATNEEC would also be reviewed in specific cases where a licence is being reviewed under section 86. We should remember that the rate of technology change is not uniform across the range of scheduled activities. In many cases the technology would not change for quite a number of years. In addition, annual revisions of specifications would be wasteful of resources. Moreover, it would be unreasonable for operations or activities that have just introduced a new BATNEEC into their process to have to change immediately to a new BATNEEC which is what is intended. There is a minimum period of three years specified in section 86 during which reviews, with specific exceptions, may not take place.

Mr. Howlin

I support the amendment. BATNEEC enters into the provisions of the Bill not only by way of reduction of pollution but also by way of prevention of pollution at source. If it is excessive to require an annual updating and publication, perhaps the Minister would indicate what would be a reasonable timescale for such updating. I do not think one can rest on one's laurels once one has a technology acceptable, in that vast improvements can take place in the course of 12 months, particularly in the prevention of pollution. Therefore, there should be some timescale within which it would be reasonable to have an updating and publication of the best available technology not entailing excessive costs. If the Minister cannot accept this amendment perhaps she could suggest an alternative.

Miss Harney

Obviously reviewing a BATNEEC would depend on the rate of technological developments and change. For example, if there are no changes in relation to BATNEECs or in developments elsewhere — and as I said we are in the main a net importer of technologies and are very dependent on developments in other more industrialised countries — it would be wasteful of resources to force the agency to go through the routine of having a review simply for the sake of it. I honestly think leaving it in the flexible way it stands is more desirable. That means the agency can pick and choose if something has changed. Obviously they can review it but, if there are no changes or developments, then it is not required of them, by statute, to do so.

It is important to safeguard, in relation to the operations of this agency, that we do not over-burden them with the kinds of red tape or bureaucratic requirements that have no beneficial effect. Obviously the agency will be operating an integrated licensing control system and, in so doing, will have to ensure that any particular application submitted to them specifies the best available technology not entailing excessive costs. In the initial years there might be classes of activity that do not come up for licence, when the agency may decide to leave it for some time, as they begin to perform their functions, before specifying a BATNEEC in relation to that activity.

Mr. Howlin

Is the Minister saying that once a BATNEEC is established and published, once specifications are acceptable and agreed, she would not see any legislative necessity to have it updated? It is important that it be clear that there would be a constant monitoring and updating. While I have no particular hang-up on an annual publication, surely it would be acceptable that some updating, within a regular, defined period, would be required?

Mr. J. Mitchell

The Minister might consider a revised amendment on Report Stage using the words "shall be revised and published at specified intervals thereafter" instead of the words "published annually thereafter".

An Leas-Cheann Comhairle

Deputy Mitchell is not pressing his amendment?

Mr. J. Mitchell

I would like to hear the Minister's reaction to that suggestion.

Miss Harney

I am not certain I fully understand the suggestion.

Mr. J. Mitchell

The words "as soon as may be" are not very specific. It gives the agency time to draw up a comprehensive specification. I suggest a possible Report Stage change to this amendment by changing the last few words from "revised and published annually thereafter" to "revised and published at specified regular intervals thereafter."

Miss Harney

I do not want to be unfair but I would like to look at this again. I would like to get some legal advice. I am advised that the words "as soon as may be" are legally interpreted so that it must happen immediately. I would prefer to consult on this. The Deputy is basically saying "as soon as possible" rather than "immediately".

Mr. Howlin

As soon as practicable?

Miss Harney

"Practicable" is a word I do not wish to ever use again. I have some bad ideas about that lately.

Mr. Howlin

It was in a couple of the Minister's amendments.

Miss Harney

I know.

Mr. J. Mitchell

I hope the Minister will consider the points raised.

Miss Harney

I will have a look to see if I can do anything in relation to what the Deputy wishes.

Amendment, by leave, withdrawn.

An Leas-Cheann Comhairle

I will put the question that the section, as amended, stand part of the Bill.

Mr. Garland

I oppose it.

Question put and declared carried.

SECTION 6.

An Leas-Cheann Comhairle

Amendments Nos. 35 and 37 are related so I suggest that for discussion purposes we take amendmends Nos. 35 and 37 together.

Mr. J. Mitchell

I move amendment No. 35:

In page 12, between lines 36 and 37, to insert the following subsection:

"(4) Where a motion is laid before either House of the Oireachtas proposing to annul any regulation made under this Act and is signed by not less than seven members of that House, the regulations shall stand annulled after the elapse of 10 sitting days unless that House has voted to approve regulation.".

An amendment like this should be inserted into all legislation. I have seen these 21 day regulation provisions being abused by Governments, where motions have been put down to annul regulations under several Acts, and where the Government have refused to order the business of either House to permit the motion to be discussed, thereby annulling the intention of the legislation.

This amendment is a means of ensuring that where a motion is tabled to annul any regulation made under this Act, the motion would have to be discussed in the House. It would be a useful precedent to establish this sort of subsection in these sort of sections in future legislation.

Mr. Garland

I am very taken by this amendment. This is a new concept. My initial reaction is favourable in that we need where possible to take power from the Minister and the secretariat and bring it back into this House. Anything towards that end is something I heartily support.

An Leas-Cheann Comhairle

The fact that the Deputy did not complain does not prevent me from saying that I regret that I did not note that the second amendment was in Deputy Howlin's name and that I should have called him second.

Mr. Howlin

Thank you. This is a bit of a hardy annual. It is put in by Opposition Deputies and opposed by Government Deputies. There is a tendency for this practice to be followed even when Deputies move from one side of the House to the other. What I have in mind is that this House should be the final arbiter in relation to regulations, because often regulations are passed that are really not subject to proper democratic scrutiny. That is a fundamental flaw in the way we do our business. More and more legislation passing through the House is enabling legislation and Ministers are simply given powers, and huge volumes of legislative work is done by way of statutory instrument. This is very undesirable and very undemocratic. I have often made that case.

In relation to this legislation I hope the formula I have proposed in amendment No. 37 will be accepted whereby every order made under the Act would be laid before each House of the Oireachtas as soon as may be after it is made and if a resolution annulling the order is passed by either House within the following 21 days on which the House has sat after the order has been laid before the House, that the order shall be annulled accordingly without prejudice to the validity of anything previously done thereunder. I am intrigued by the different approach being taken by my Fine Gael colleagues. It is interesting that they propose that seven Members of the House could put into play a motion that would require a positive decision of the full House. That is an interesting proposal, worthy of support.

Miss Harney

I have some sympathy for the position of Opposition Deputies in relation to the almost impossible procedure we have for annulling regulations. While on that side of the House I tried to do this on a number of occasions.

This is very much a framework Bill. To a large extent it has to be put in place through regulations. If we did not do it that way, long as it took to get this Bill here, it would not even be here at this stage. It is virtually impossible to cover in the primary legislation all the kinds of matters that have to be covered to allow certain things to happen. That is why it is appropriate that we have the procedure known as Statutory Instruments, Regulations or Orders.

However, in relation to the fundamental aspects of the Bill, it is appropriate that they could not be changed unless the approval of the Oireachtas was given and that is why in relation to adding to or deleting from the First and Second Schedules in relation to selection committees and so on, and those matters which are fundamental to the operation of the agency, they can only be changed with the approval of the Oireachtas. That is an important safeguard, but in relation to other matters which in many cases come under the day-to-day housekeeping matters of the agency, it would be unreasonable to expect that they would all have to come for approval before the Houses of the Oireachtas. If we were to accept that procedure we would have a matter of form, as we had here this morning when four or five matters before this Bill started were disposed of without debate, by agreement. They were just formalities because that is the way they had to be dealt with. We had a similar procedure yesterday in relation to the Limerick Markets Bill. Many of these formalities become ritual formalities and a nuisance, quite often. We need to be aware of that. There is a need for radical reform of the Houses of the Oireachtas in the way we do our business. This is not an appropriate way in which to deal with primary legislation. There are five of us here now and there have been more or less five people here all day. It would be more appropriate to go through the legislative process in a different way. We need to change procedures and the way in which regulations operate and so on, but that is more relevant to fundamental Oireachtas reform and the way we process legislation than it is to this Bill. There is a safeguard in the Bill — this point was debated in the Seanad — in regard to fundamental matters, such as the selection of a director general and board members. The First and Second Schedules can only be changed with the approval of the Dáil and Seanad. Deputies can be reassured by that safeguard. Given that a host of regulations will be made under the legislation, it would be unreasonable if we had to join the queue to have them approved because that would make it virtually impossible for any Government to do their business.

Deputy Mitchell, a former member of Government, realises that the regulation procedure is a necessary way of making things happen quickly. By and large most regulations are uncontentious and do not cause difficulties. It is usually the case that when the regulations are not made, as Deputy Allen referred to this morning, that problems arise. It is what does not happen that causes problems for Deputies. It is not appropriate to change the Bill as suggested by the Deputy in his amendment.

Mr. J. Mitchell

I am very disappointed that the Minister has not been able to accept this amendment. The implications of my amendment go far beyond this Bill or this Department. When the practice commenced to insert regulations, that would take effect after 12 days, as a feature of the legislation, it was clearly understood and implied that any annulling motion would be taken in the House within 21 days. The Government have taken to ignoring the implied right of Deputies to have such motions taken and frequently the business of the House is ordered in such a way as to refuse them time to deal with them. It seems to me that this is one of the basic reforms of the House that is required.

The reason there are so few Deputies in the House at any one time is that the House is so powerless and we are wasting our time talking to empty benches. If Ministers were brave enough to accept amendments of this type, they would force the pace of reform and make the House more relevant. I have no doubt it would improve the quality of the legislation being enacted. What is more, it would keep Ministers on their toes. The purpose of Parliament is to hold Ministers to account thus improving the performance of Ministers and their Departments. If the Minister can draft regulations, knowing for certain they will never see the light of day in this House, they may be careless.

The Minister suggested that we would not get any business done because of the number of these motions that would have to be dealt with. We would get the business done and we would be forced to change the format of debates in this House. We would have to have a committee system. All the environmental issues would be discussed at an environmental committee without having to compete with crime or finance matters because they would be dealt with separately by another committee. That is the procedure in other Parliaments. This would be a very useful change. The elected Members would then become legislators in the true sense rather than feeling we are wasting our time.

I regret the Minister will not accept this amendment.

Mr. Howlin

I too regret that the Minister will not accept the amendment. This is a fundamental point and the Minister of State indicated she would be sympathetic to it. I do not think it is good enough to say that one has sympathy for a point but that things change when one is on the other side of the House. The Minister suggests this is a matter of fundamental Dáil reform but we must start somewhere.

I do not accept what the Minister of State said about the motions on the Order Paper today. The placing of the motions on the Order Paper forced the Whips to look at them. The motions were brought before the Whips last Thursday, were discussed with the spokespersons of the other parties and it was agreed to nod them through today without further examination. The point is that they have to be brought to the attention of Deputies. If every resolution or regulation enacted into law had been subject to the same scrutiny, democracy would have been enhanced. When I first became a Member of the Oireachtas I was appointed a member of the then committee on legislation. One of our functions was to examine Statutory Instruments. We trawled through thousands of Statutory Instruments and examined them. Some were bad.

I agree with the idea of having proper committees of the House. For example, a committee on the environment could deal with environmental legislation and the Statutory Instruments signed by Ministers on foot of enabling legislation passed by the Oireachtas. We could establish committees on crime, health, education. Every area should be subject to democratic scrutiny. The amendment would not go that far but it would be a significant step in that direction. It was a good idea to include motions on the Order Paper today. I do not think they cluttered the agenda or stifled debate because they were nodded through. What it meant was that they were examined in the first instance by the Whip. The Statutory Instruments, and the briefing notes on them, were discussed with the spokespersons concerned. They are subject to scrutiny and that is democracy in action for once.

We need to address this issue. I am well disposed to supporting amendment No. 35 because it is innovative and gives power to a relatively small number of Deputies to initiate a process that requires the House to act. That is a good thing. If the Minister of State accepts that some sections, what she described as the important sections, will be subject to the affirmation of this House, then it is important that all sections are subject to some form of democratic scrutiny. It would be good if Deputies sent out the message of their need to assert their influence on legislation. It would be a good day's work for Dáil reform if the Minister of State began the work tonight.

Miss Harney

There has been a great many references to democracy and the need for the Whips to agree on motions but I wonder if the Whips spoke on behalf of Deputy Garland when they nodded matters through this morning.

This amendment refers to seven people and I wonder why that number was picked.

Mr. J. Mitchell

Because seven constitutes a group according to Standing Orders.

Miss Harney

Deputy Byrne, therefore, would have no rights under this procedure, or indeed Deputy Garland or my party. Six people can achieve a great deal so I would not necessarily put the number as high as seven.

Mr. J. Mitchell

The Minister may reduce it to six if she likes.

Miss Harney

On the point made by Deputy Howlin, I wondered what would happen if the Minister wanted to bring in regulations to establish this agency when the Dáil was in recess.

Mr. Howlin

The committees would not be in recess.

Miss Harney

I do not know of any committees of this House that meet in August. We do not have a committee system that works like that at present. The Deputies want all the regulations to establish this agency to come before this House within ten sitting days. Therefore, if we are doing a great deal of work, as we will be, during the early summer, we will have to wait until the middle to end of September or, indeed, early October before we are in a position to have them approved by this House. That is unreasonable and no Government could operate on that basis.

We need to look at the more fundamental aspects of this in relation to Oireachtas reform. I do not think we can take a unilateral decision in relation to regulations under this Bill without looking at how regulations in general operate in the context of the legislative process. That needs re-examination. If this amendment were accepted — I hope to be in a position in early summer to produce the housekeeping or administrative regulations to establish this agency — we would have to wait until the Dáil resumed after the summer recess before regulations could take effect. That would completely tie the hands of any Government and it would be unreasonable. This is enabling legislation. Regulations in relation to fundamental matters such as the selection of the director general and the directors will have to be approved by the Oireachtas. It is not appropriate that regulations with regard to administrative matters should need parliamentary approval.

Progress reported; Committee to sit again.