We have now come to Amendment No. 169, which stands in the names of Deputies J. Mitchell, Carey and Allen. Joined with that amendment are amendments Nos. 172, 173, 175, 181, 183 to 188 inclusive, 192, 193, 198 to 228 inclusive, 230, 231, 234, 236 to 238 inclusive, 240 to 247 inclusive, 249 to 256 inclusive and 258. For the purpose of discussion all these amendments shall be taken together.
Environmental Protection Agency Bill, 1990 [Seanad]: Committee Stage (Resumed).
I move amendment No. 169:
In page 57, subsection (1), line 38, after "activity" to insert "which requires a licence or permit for control of water pollution, air pollution, waste, noise or other emission".
The amendment stands in my name, together with those of Deputies Donal Carey and Bernard Allen. In the amendment we seek to add in the first line of section 80 (1) after the word "activity" the words "which requires a licence or permit for control of water pollution, air pollution, waste, noise or other emission". The section as it stands is not specific enough and we should like it to be made clear that a person should not carry on an activity which requires a licence or permit for control of water pollution, air pollution, waste, noise or other emission other than an established activity. I hope that the Minister can accept the amendment.
Here we are dealing with the fundamental issue in the Bill. At the outset I was concerned, as were the Government, not to establish just another State agency, not to put in place another layer of bureaucracy that would stand in the way of planning, development and progress. Neither did we want an agency that would have the name, the Environmental Protection Agency, but would be, effectively, toothless so far as real power was concerned. Previously we have had many bodies of this kind and although they can do extraordinarily good work from a research or general point of view, when it comes to the crunch of making decisions, putting controls in place, enforcing the controls and seeking to have those who do not abide by the controls prosecuted, they do not have the teeth required to that. We do not need another body of that kind, which is why I was keen to ensure that this agency would have the power to license those activities that can cause a serious threat in terms of pollution if not carried out in an environmentally satisfactory way.
It is for precisely that reason that in section 80 we are introducing the concept of integrated pollution control. As Deputies know, at the moment for certain activities planning permission is required from the local authority and if there is an appeal it is adjudicated on by An Bord Pleanála — a waste permit is required under waste regulations, under the Water Pollution Act a water pollution licence is required if there is to be a discharge into waters and an air pollution licence is required if there are to be emissions into the atmosphere. That procedure is sizeable, cumbersome and is not environmentally satisfactory. On many occasions, although air, water and soil are different media, all of them emit substances into the environment which could have a detrimental effect if not properly controlled.
Therefore, it is not appropriate that all these matters be examined separately. It makes much more sense to bring all the environmental media together, to have the integrated pollution control licence A1 operating permit given in respect of the manner in which the activity can be controlled and operated as far as the natural environment is concerned. We have three different permits — which nobody could possibly justify — because, at different times, different requirements were either imposed on us or required of us because of European obligations or we saw fit to introduce different provisions to deal with emissions into the air, discharges into waters or to regulate and control disposal of waste.
What we are doing here is novel and forward thinking. Even at European level there are discussions and proposals in relation to integrated pollution control but that concept is still very far from being adopted and will not be in place for some time. Very few countries have reached the stage at which they can introduce an integrated pollution control licence.
What Deputies seek to do is remove from the ambit of the agency power to adjudicate and grant such licences. It is my belief that that would be unsatisfactory. Deputies seek not merely to leave that power with the existing 33 local authorities but to extend it to our 87 or 88 different sanitary authorities. I want Deputies to reconsider its repercussions. For example, in a small country like ours with limited resources, at a very early stage of development it would not be possible to give even each of the existing 33 local authorities the kind of resources, by way of manpower and equipment, to allow them properly assess many of the very technical and complex processes outlined in the First Schedule. For example, there is mention of the chemical pharmaceutical industry and activities in the agri group sector, which have developed enormously in recent years.
The processes about which we speak are complex requiring thorough, expensive expertise. It would not be possible, in the case of every local authority, to provide that expertise and, even if we could provide it, to duplicate it nationwide; it would be a waste of public resources. For example, in some local authority areas there might be one such activity only. That begs the question: if one such activity required expertise and technical equipment, would it be reasonable to expect that local authority or the Exchequer to fork out the resources to allow the relevant local authority have what is required?
In drafting this Bill I engaged in widespread consultation with many organisations, mainly those concerned with the environment, but also with many professional bodies, representatives of local authorities, city and county managers and representatives of Irish industry. At the outset the people who were most impressed that we intended to introduce the concept of integrated pollution control, and give that power to the new agency, were the environmental organisations; that is a fact. Since the Bill was published I know that many of them have changed their minds. No doubt if this Bill were to hang around for another couple of years many other people would change their views or perspective of what the agency is all about.
I do not criticise people for changing their minds; I too have had a rethink on certain matters. That is what the overall activities of this House should be about — what the processing of legislation through the Oireachtas should be about — opening one's mind to a different approach if one can be persuaded that it is warranted or is in order. That is why I shall be keen to accept, so far as I can, amendments tabled by the Opposition, both here and in the Seanad.
There are no hard and fast rules I suppose, if one were beginning to devise a system for the operation of our planning laws or licensing certain activities, one might do many things differently. The fact is local authorities are in place with enormous powers as far as planning and development are concerned. It is not my wish to seek to remove those powers for the sake of their removal but rather to help those local authorities by establishing a body that is capable, because it will have the expertise, resources, knowledge and, most important of all, will be able to make proper use of our scarce resources in the most effective manner. Therefore, I am not at liberty, nor do I believe it to be acceptable, to seek to change what is to me a fundamental matter as far as this proposed agency is concerned.
If we remove the power of that agency to control and licence certain activities, and, enforce those controls, then effectively all we will be left with will be an agency that is, of its nature, an advisory body involved in research, co-ordinating matters, drawing up various reports and so on. At the end of the day, when it comes to how we can prevent pollution that agency would be virtually toothless. That would be a waste of resources and would lead to the public being disappointed about their perception and expectations of this agency.
There will always be inconsistencies between local authorities. Let us face it, there are at present many such inconsistencies for example, any developer will tell you that an application submitted to one local authority might be viewed in one way while in another local authority different sets of conditions might be imposed. That will always be the case where there are 33, 80, or whatever may be the number of local authorities concerned. No matter how we extend the definition of sanitary or local authority there will always be different interpretations when such a disparate group of people interpret what is required in a small country like ours, where competition is keen, where it is important for our future that industrial development be allowed to thrive and in the context of proper environmental controls being consistent, even-handed and applied fairly nationwide.
When establishing this Environmental Protection Agency, the most appropriate thing to do is to give them the teeth and resources to assess licences thereafter, control activities and enforce the conditions of those licences; to give them all the powers and deterrents in Part IV of the Bill.
In moving amendment No. 169 and the Minister having replied to the group of amendments being taken together, I have the advantage of the Minister having retaliated.
The Minister's logic here is not only imperfect but, I contend, grossly distorted. In planning matters, circumstances prevail in which a local authority, is the planning authority. Over and above that there is the appeals procedure to An Bord Pleanála.
We are faced here with circumstances in which the Minister is creating a new licensing procedure which could severely delay or have an impact on the planning procedures. There is at present the Local Government (Planning and Development) Bill, 1991, whose provisions purport to reduce the overall duration of a planning appeal. At the same time we are dealing with this Bill — and some planning permissions may be conditional on a licence being granted under the provisions of this Bill — so that the length of time it may take to be granted a licence under the provisions of this Bill could retard planning permissions. I contend it also creates a bureaucratic planning nightmare.
If the Minister wants integrated planning and pollution control to run parallel, she should allow local authorities be the licensees subject to appeal to the proposed Environmental Protection Agency. If that Environmental Protection Agency is to be the court of first resort rather than that of last resort in environmental and pollution licensing matters, what recourse is available to those dissatisfied with decisions of the Environmental Protection Agency? The answer is they must go to court. Of their very nature court cases can take a considerable length of time.
I feel the Minister has got this all wrong. Many people who strongly support the concept of an Environmental Protection Agency, who are strongly in favour of clear-cut, energetic protection of our environment, are greatly concerned with provisions in this Part of the Bill because they do not integrate. The Minister has been speaking about integration of pollution controls. Environmental control matters are not integrated with the planning process. Rather they are in addition to, and almost certainly, are completely at variance with the objectives of the provisions of the Local Government (Planning and Development) Bill, which had its Second Reading in this House.
Nothing the Minister has said in defence of the present provisions gets over that fact. The Minister indicated that the local authorities do not have the necessary staff. I believe that in general local authorities have the staff: some may not have the staff and they will have to get them in the same way as the Environmental Protection Agency will have to get them. If people are dissatisfied with the decisions of a local authority they should be able to appeal to the Environmental Protection Agency. It is very clear that people would prefer that course of action rather than having to appeal in the courts. We could end up in a situation where many pollution control issues may not be decided by experts in the Environmental Protection Agency in the final analysis but be decided by judges in court who are not trained in environmental matters.
Yesterday we had a very thorough debate on the type of people who should be appointed to the board of the agency. We spoke about people with training in biology, engineering, etc. Of course, it is absolutely correct that the Environmental Protection Agency should have that sort of expertise which is very relevant to understanding the scientific solutions to environmental problems. Even though she does not say so, what the Minister is proposing in Part IV is that the ultimate arbiter in environmental matters should be the courts. If the Environmental Protection Agency either grant a licence which makes a number of people unhappy, or refuse a licence to an applicant, it seems that there will be frequent recourse to the High Court to set aside the decision of the Environmental Protection Agency. It is fundamental to democracy that there is some form of appeal against a decision; one cannot have an arbitrary decision. The Minister has argued that she is creating a decisive Environmental Protection Agency who will have teeth. However, I believe she is almost certainly creating an agency who will have many of their decisions reviewed and probably set aside by the courts who may be experts in law but who are not and cannot be experts in environmental matters.
For this reason I ask the Minister to reconsider the provisions in Part IV which are seen as the central weakness in the Bill. The Minister's proposals will almost certainly add to delay in planning procedures in the case of most major planning applications; it will retard development. Even worse, it will make the courts and not the Environmental Protection Agency the final arbiter in so far as pollution control is concerned. If the Minister is not satisfied that we should designate such power to sanitary authorities — she said there were a total of 80 — she may consider accepting an amendment on Report Stage which will make the county councils and the county borougns responsible for such matters. She may argue that the remit of a sanitary authority extends into the smaller local authority areas.
I am very disappointed that the Minister has not been forthcoming in regard to the many amendments put down by Deputy Carey, Deputy Allen and myself to this part of the Bill. She was forthcoming on other sections of the Bill and I am very disappointed that she has not accepted our amendments. I expected her to accept that the proosals in Part IV will add to the difficulties experienced in getting development, helping new companies to start up, helping existing companies to develop and creating employment.
I have thought long and hard about the impact of all these amendments. I did not table an amendment along the lines of the amendments put down by my Fine Gael colleagues because quite frankly I am convinced that, on balance, the Minister's proposals are sound. I do not want to give too much credit to the Minister in relation to this entire issue because I think section 80 is based substantially on section 6 of the UK Environmental Protection Act, 1990, which introduced the concept of integrated pollution control. That Act has been in existence in the UK for the past few years.
Obviously those of us who have served on local authorities in particular have a hankering to support the notion that decisions should be made at that level. Yesterday I argued trenchantly about the need for local authority members to have an input into the advisory committee. By and large, local authorities have a creditable record in regard to pollution control. Without being smug, I want to say that I come from a county which has an exemplary record in this regard; Wexford County Council have a record of which anyone could be proud.
We are being asked here to fundamentally alter the impact of the Bill. What we are about here is establishing an Environmental Protection Agency who have teeth. Our objective is to ensure that there is pollution control and that we improve and protect the environment. The arguments in relation to planning and development are a sideline issue which obviously must be taken into account but which are not at the core of what we are about: what we are about here is the establishment of mechanisms to protect the environment.
I am willing to give the Minister the benefit of the doubt. I believe she will establish an Environmental Protection Agency who will have the necessary resources, expertise and wherewithal to actually monitor on a standardised basis all developments throughout the country. It would be invidious if we allowed a differentiation of standards to occur when increasing joblessness puts pressure on every local authority to look favourably at any development. It may well happen that one local authority will be set up against another in terms of their standards. For example, they could be told, "We can get a better deal in another country or another part of the country; they are less rigid in the way they interpret pollution controls".
Our objective here is to establish a national authority, national standards and to protect the environment. Quite frankly, local authorities do not have the resources to do this job. For example, many local authorities do not have any equipment with which to monitor noise pollution. Many local authorities do not have the necessary personnel to monitor the waterways in their areas of operation. There has been an embargo on recruitment of officers to local authorities for a number of years. Local authorities are now at the pin of their collar to carry out the statutory functions which are developed on them by Statute from this House. They do not have the wherewithal, the resources, funding or personnel, to deal with all the implications of this legislation, nor could they be expected to. If a local authority had to deal with one application in a decade they would not have the expertise, resources or skilled personnel to give it the type of analysis it would merit.
As I said, I have great faith in local authorities. They have done a tremendously positive job in many parts of the country. While unfortunately there are some exceptions to this, these are very few. What we are about here now is establishing a completely new and different body; we are proposing to establish on a national basis an Environmental Protection Agency who will have an integrated pollution plan. I hope that the Minister's commitment will bear fruit and that we will have a national organisation with teeth and resources. Once the agency are established we will have to ensure in future years that this is what happens.
I am afraid our experience of another body, An Bord Pleanála, does not often fill us with great confidence. Quite often decisions made by a local authority for the best environmental reasons have been overturned by the national planning body, An Bord Pleanála. Very often there is no rhyme, reason nor logic to it and no mechanism by which it can be queried except by taking a point of law to the High Court. I am concerned by the point raised by Deputy Jim Mitchell in relation to an appeals mechanism. There must be a clear appeals mechanism through a system which allows proper evaluation of the merits of an appeal to be taken into account. I hope the Minister will address that point in particular so that she can convince me she is on the right path.
I support Deputy Jim Mitchell's proposal. It is ironic that we spent an hour this morning debating problems which will arise in future and yet we are trying to centralise things more and more. In the reply which the Minister gave to the amendment tabled in the names of Deputies Jim Mitchell, Allen and myself, she favoured further centralisation of environmental control which flies in the face of all the principles her Government advocate at present. They are really concerned about subsidiarity and that is difficult to understand. I am sure, a Chathaoirleach, that you have had long experience of planning applications for new industries in the Cork region, especially in relation to Cork harbour. Many of the problems which existed before setting up that industry certainly would not have been resolved if Cork County Council, the objectors and the promoters had to travel to Dublin every week to a centralised office to meet the champions of the environmental cause who had another extreme view in regard to the proposal.
The Minister, far from giving the agency teeth, introduced a Bill which will cause environmental and planning constipation, although that is probably not what she intended. She has ignored the practical experience at local authority level; it could mean that jobs will be lost as no one will come to outlying areas because funds will not be available. The Bill seems to favour the siting of sensitive environmental proposals in the city of Dublin and its environs. Local interests should not be ignored and if the problems in relation to local planning authorities cannot be addressed, as proposed in our amendment, there will not be the great new dawn which the Minister expects from the Environmental Protection Agency.
In my constituency the IDA and SFADCo proposed siting a very substantial industry which would have provided 500 or 600 jobs at Shannon Airport for the Beecham International Corporation. As a result of a mix-up between the IDA and SFADCo the industry was located in Scotland. Part of the problem arose because the people advising the IDA were in Dublin. Their message was totally different from the message received in our area. A volume of opposition to the industry grew. Sadly it was lost to my constituency as a result of the bureaucratic set-up and the remoteness of people operating in Dublin.
There is need for the Environmental Protection Agency to have an immediate involvement with the local planning authorities so that there will not be delays and frustrations. We do not want companies from overseas finding that the whole system militates against their proposals, for the wrong reasons. I am disappointed with the Minister's response to these amendments.
I should like to respond to Deputy Carey's speech. He mentioned the word "subsidiarity". The definition of "subsidiarity" is that decisions are made at the lowest effective level, not at the lowest level. We must be very clear about this because no party or person in this House is more dedicated to the principle of decision-making at local level, where it is appropriate, than ours. There are many areas, particularly in regard to this Bill, where it is not appropriate for the local authorities to make a decision. For example, there could be a proposal to site a factory within one quarter of a mile of a county border; local authority borders are fixed and set and it is obvious, if the project is a major chemical industry, that there may be pollution problems. It would be totally inappropriate and wrong that the county in which the industry is proposed to be sited should have sole control over whether the industry gets a licence as the potential pollution may spread a few yards into the next county or even further, perhaps over other counties, indeed perhaps over the whole country. It is very important to set down a marker in that regard.
Having listened to Deputy Howlin, I have no doubt that, on balance, the Minister is going down the right road on this issue. It is very hard for us to centralise things, we are very much against centralisation but, unfortunately, in some cases it is necessary.
Deputy Carey referred to the loss of an industry in his area, I should not like to comment as I do not know the details. However, it is generally recognised that we are very easy in regard to these issues. Many countries have much stronger environmental laws and longer time lags. People get the impression here that we are frightening away industry, that may be so but other countries are frightening them away much more quickly than we are. Deputy Carey said an industry proposed for his area eventually went to Scotland. Much of the industry which we rightly rejected here has gone to the Third World countries. Of course we do not want to offload our problems on the Third World but I am afraid that brings in a wider issue.
Deputy Howlin talked about the chances of the agency getting sufficient funds and I expect there will be considerable problems in that regard. However, I would hate to think that each local authority would have to appeal to the Minister for the Environment for adequate funds to deal with the issue of licences. They will have more than enough to do in monitoring without issuing licences. This could be the great copout by the Government and the local authorities, the buck could be passed from one to the other. At least in this case we are quite clear in regard to where the resources will have to come from. We are clear that the resources will have to come from the Environmental Protection Agency who, in turn, will get them from the Government. We may talk about the provisions of the Bill and so on but at the end of the day it will come down to money and the resources the Government will make available to the agency. Unfortunately, we cannot address this question in the Bill; it will have to be addressed afterwards.
I am not happy about one aspect of the Minister's proposal on the right of appeal and perhaps she might comment on it.
The only way a person can exercise his or her right of appeal under the section is through the courts. Lawyers are doing well enough and are we going to generate more work for which they can charge exorbitant fees. I accept the Fine Gael view on that. I am not quite sure of the best approach to this, we may need a body to arbitrate on appeals. However, the courts are not the ideal answer. I intend to give this matter further thought and I may table an amendment on Report Stage.
All Deputies are being reasonable in regard to this matter. I accept Deputy Mitchell's point that it is not desirable to extend these provisions to the sanitary authorities. That would be wholly undesirable because of the duplication of work, as there are 87 sanitary authorities compared with 33 planning authorities. As the Deputy was reasonable I am not going to dwell on this matter.
In response to Deputies Carey and Garland let me say that I support the principle of subsidiarity but there is often confusion that this means that decisions are made at the lowest level regardless of the consequences. Subsidiarity takes into account the most effective unit for making decisions whether it is at parish, town or county level. That is important. Among the industries covered in the First Schedule are the chemical and pharmaceutical industries, power stations, food industries, meat factories, intensive agricultural operations, the processing of asbestos and the manufacture and processing asbestos based products, the extraction, production and processing of raw asbestos, the extraction of aluminium oxide from ore. We are talking about technically difficult processes and there is no question but that the most effective way to license these activities in a small country is centrally. I will list some of the countries where licences are granted by a central body. They span the political spectrum from socialism and left wing politics right across to the right. In France, Norway and Denmark licences are issued by a central body and since the recent Act which Deputy Howlin referred to, licences are issued by a central body in the United Kingdom.
I am not trying to be arrogant when I say that details of our integrated pollution control licence system and the role of the agency in this matter was published by the Government in December 1989 in advance of the publication of the UK Bill. What prompted us to take this road were the developments at European Community level — although these are by no means finalised — an integrated pollution controls and the experience on the ground.
Many representatives of Irish industry, most of whom conduct their affairs in a way that is not at variance with the highest environmental standards, have said to me that it does not matter what standards are applied as long as they are enforced in the same way across the board. Several cases were brought to my attention of applicants in one county having to comply with a specific set of conditions that were not applied by the licensing authority in another county. Being realistic, that is not desirable in a small country like this, either from the point of view of existing Irish industry or overseas industry that might locate here. We do not want people to be checking out the areas where they are most likely to get away with breaches of the pollution Acts. That would be undesirable from the national point of view.
While we are on section 80, we are dealing with the granting of licences and the appeals procedure together. This is understandable because it is very hard to separate one from the other. I spent much time trying to think of ways we could make provision for third party appeals because this concept was accepted in environmental matters, particularly planning matters. The right of a third party appeal is very fundamental to our legislation. We would be reluctant to reduce in any way, or remove those rights. However, I have to balance that view with the fact that we are now establishing a new agency which will be independent of local authorities, the Government and industry and which will operate independently. It is an offence under the Act to seek to improperly influence the agency and so on. As we are establishing an agency comprised of experts of the highest credibility it would be wrong to provide that the agency may grant licences but that some other body will have the power to overturn their decisions on appeal. I do not know what other body would be suitable.
At present when a chemical or pharmaceutical plant apply to the local authority for a licence, the local authority in almost all cases recruit the services of outside consultants, because they do not have the expertise to assess the application. An Bord Pleanála do something similar. The most recent example was the application by the Sandoz pharmaceutical company in Cork. When they appealed the planning decision, An Bord Pleanála had to recruit an outside private consultancy to help them deal with the application because they did not have the resources.
I make an important point because as no other body in the country has the kind of know-how and resources to deal with the appeal we provided in section 83 for a very open process in the case of appeals. It is very different from anything we had before. Within two months of the application being made, local authorities and other interested parties are informed of the agency's thinking and then the applicant or objectors have a right to make submissions outlining the grounds for their objections. That is fair but I know Deputies have tabled amendments to it and I will deal with them later.
In all the circumstances, given that we do not have this expertise anywhere else and that we cannot set up yet another body to deal with appeals, we have adopted a very open approach. Many people have complimented me on the fact that they will know before any decision is made the agency's thinking so that they can influence that thinking at the primary stage.
Between 45 per cent and 50 per cent of appeals to An Bord Pleanála are refused on appeal. There is no procedure for appealing against the granting of a waste licence and as far as I understand no licence under the Air Pollution Act has been refused on appeal and only 15 per cent of licences under the Water Pollution Act have been refused on appeal. The reason licences generally are not refused on appeal is that by granting a licence, the authority can set down the conditions to make whatever they want happen. They may place very stringent controls on the applicant to prevent pollution of the atmosphere, water or whatever. The granting of a licence gives the licensing authority enormous power to impose very stringent conditions. In some cases this may mean that the applicant does not proceed with the project because it may well be felt that the conditions are too tough or expensive to comply with. This is a possibility when licensing authorities have enormous powers.
A great deal of the debate has dwelt on the fact that many Deputies believe — I know that Deputy Mitchell believes this also — that the licensing of the activity should be dealt with at the same time as the planning application. That assumes that the agency will only be dealing with new activities — I know Deputy Howlin has tabled an amendment to this. When the agency is up and running in about one year its major function will not be to deal with new activities, because I do not anticipate that we will have a flood of new industrial development at such a rate that the agency will never be able to turn to existing activities. When the agency have been in place for some time the existing activities will be the core of their work. They will license established activities and planning will not arise. That is why it is not desirable nor do I believe it is necessary to link planning and licensing together. Many people feel they are part of the same coin but they are not. Naturally the building of a facility and the planning conditions which apply have an environmental impact from a visual point of view; all buildings have an impact one way or the other, but it is a very different procedure. The people who deal with planning are different from those who deal with licensing. People who deal with planning are essentially planners, architects, engineers and so on; the people who deal with licensing have very specialised scientific qualification. Even within the local authority structure there are different people who have nothing to do with the planning process. At present the procedures are separate.
A person does not have to apply for the licence and for planning permission at the same time but we will deal with that later. I have given some thought to that. Should the two come together? Should the applicant have to apply to the local authority and to the agency for the licence? I have decided on balance it is better to separate them. The licence will require more work on behalf of the applicant. An applicant may decide to see if he will get planning permission before deciding to apply for a licence. It is possible that somebody could be refused a licence and be granted planning permission, orvice versa. That is not incompatible. A building could be acceptable in an area but the activities that require a licence may not be acceptable for the building or for the area and vice versa. It is important that we do not tie the two procedures together because they are separate and different, even if they are concerned about the environment.
It is generally accepted — and Deputy Howlin drew attention to this — in countries with greater resources than ours that if we want to impose very stringent licence controls on particular activities which, if something goes wrong, can pollute and cause danger not merely to the environment but to public health, that require technical expertise and equipment to monitor conditions and if we want to have the highest possible standards in place and enforce against those activities outlined in the First Schedule, then the most appropriate way to do that is to give this new body the necessary resources and teeth.
One of the arguments against giving teeth to the agency — not by any Member of this House but by some people outside — was that they did not want an agency which would be drawn into controversy or that had to grant a licence for something that may not be popular. Anybody who has to make decisions has to make unpopular decisions. I could not envisage an agency always being popular unless it was a toothless agency. Naturally you would always be popular if you just made recommendations or if you were drawing up state of the environment reports, giving advice or consulting people. Anyone who does only that would possibly always be popular because he would be passing the buck and letting somebody else make the decisions. Anybody who has a decision making role sometime has to make decisions that may not be universally popular. Because we want to keep the agency popular it is not a good enough reason to remove this power from them; it is far more important that the right people make the decisions rather than that we simply have an agency that may be popular but would have no teeth.
We are still dealing with section 80 and I am sure Deputies are anxious to move on to the specifics of the other sections. On balance it would be wrong to remove this power from the agency. Without it the body would be toothless and would merely be a consultative advisory body. At the end of the day, the people want to know that decisions will be made on activities which cause pollution. Where nothing happens no pollution can occur. When you put in place certain activities, the threat of pollution occurs. If we do not give this power to the agency, they will not have public credibility; they will not be seen to be doing the job and they will not be justified in getting large resources. We do not have the option and we do not have the resources to give to the 33 different local authorities because what we are talking about is very expensive equipment and personnel. At our stage of development we could not justify that.
I am not persuaded by any of the points made by the Minister. I do not disagree with her for one minute or with Deputy Garland or Deputy Howlin on the need for this agency to have teeth. There is concern on all sides of this House to ensure that the Environmental Protection Agency are effective in improving the environment whether it be water, sea, air or the visual environment. We are not at odds on that point we are at odds with the idea that Dublin knows best.
I hope it will not be in Dublin.
In many cases decisions are centralised in Dublin and a fiasco ensues. Even in the social welfare area, decisions are made in Dublin about disability benefit or deserted wife's benefit; removed from local knowledge this practice is a fiasco. There is a number of problems with the proposals in this part of the Bill. Effectively we are dealing with sections 80 to 98, inclusive. The first problem is that this Bill may be unconstitutional if there is no right of appeal against a decision about a licence, by the applicant or by a third party, and I would like the Minister to reflect on that point. If the law was contested and overthrown in the court on the basis that there was no provision for an appeal, what would be the position of the Environmental Protection Agency? If there is a right of appeal, but only to the courts, the Bill would be defective. What about the small man and the Mr. Hanrahans of this world who do not have the resources to go to the courts but who are affected by pollution caused by a neighbour?
The polluter gets an award.
What about somebody who is unemployed or on a pension and is seriously affected by such pollution? If that person does not have the resources to go to court will legal aid be provided for appeals? Is the Minister not doing away with the rights of ordinary people who do not have the resources to go to court? Has the Minister not considered the rights of the small person? Even if appeals to the court do not arise, what rights do individuals or communities have for an oral hearing by the Environmental Protection Agency?
According to the provisions in the sections before us they have no rights. In the legislation which established planning procedures and An Bord Pleanála, we know An Bord Pleanála have teeth even though initial planning decisions are taken at local level. An Bord Pleanála can receive a delegation at an oral hearing or can refuse to have an oral hearing. What is more, An Bord Pleanála can make a decision which is in breach of the local authority's development plan — this power is greater than the power the county manager has. Indeed, three-quarters of the elected representatives must agree that permission can be granted, not three-quarters of those present but three-quarters of the total. Yet, An Bord Pleanála have the teeth and power to overrule a decision and grant planning permission in breach of the local authority's development plan.
No one would argue, therefore, that An Bord Pleanála do not have teeth given that most planning decisions are made and finalised at local level. Likewise, I would argue that it would be much more appropriate, in the interests of subsidiarity, to have decisions made at the point nearest to people, to give local people an effective say in relation to local matters relating to the environment, given their local knowledge.
That leads me on to my next argument about this part of the Bill. Not only is it at cross purposes with planning legislation but also with the Local Government Act which was enacted last year. That legislation was paraded by the Government with great ballyhoo as reforming legislation to give local authorities a major role in all these matters. However in practice we know that this is not the case because the Custom House still controls the purse strings and while in theory the local authorities have a number of possible roles under the Local Government Act they cannot fulfil them because the fund raising power has not been given and they still have to get permission for specific projects from the Custom House.
Nonetheless, the objective of the Local Government Act was to restore decision making powers to the point closest to local communities. However, this Bill seeks to restore powers to Dublin again and remove the right of individuals and communities to have any direct say at local level, or any leverage over those they elect to local government to have decisions they feel are warranted — given their local knowledge — made. Furthermore, we are going to make it virtually impossible for them to appeal to the courts unless they have massive financial resources. The Bill, therefore, is ill-considered.
I want to make Fine Gael's position clear. Deputy Garland adverted to industries which were diverted to the Third World. I wish to make the point that neither I nor Fine Gael want dirty industry in this country. What is more, I do not believe that enlightened industries or, indeed, the vast majority of industries, want lax environmental standards. What they do want are clear-cut standards so that they would know in advance what would be required, and an efficient decision making system.
Let us take as an example a company who proposes to locate in Europe and are looking at Ireland, Scotland and Switzerland. No one would argue that there are lax environmental controls in Switzerland. Indeed it will be demonstrated to those investors that the systems in operation there in relation to planning and environmental control have been streamlined and dovetailed and that a clear decision would be made speedily on all aspects of the matter, say, within three months. However, we have a planning system, a planning appeals system, building regulations and a building regulations appeals system. I should say that while an attempt was made in recent legislation to dovetail those two latter aspects, as they needed to be dovetailed, no attempt is being made in this legislation to dovetail the planning and appeals. For example, no time limits within which a decision would have to be made have been laid down. This is a grave mistake. Inevitably, this is going to lead to appeals to the court by those who have the resources — this usually means industry rather than individuals. However, given the long list of court cases unfortunately decisions will be delayed. When prospective investors are informed of this they will be put off. This is yet another reason companies will not invest in Ireland.
Recently I spent ten days in the United States of America with the Lord Mayor when I visited the sister city of Dublin, San Jose, other cities in California and Silicon Valley. It was made absolutely clear to us that industries now expect the most stringent environmental standards and they have no problem with this but what they need is clarity and a timescale within which decisions will be made.
This is the one part of the Bill which will destroy its effectiveness and weaken the strong momentum in favour of improving the environment. I urge the Minister of State, therefore, to see the folly of what is being proposed. The Environmental Protection Agency should not be a licensing authority of first resort and if they are there will have to be an appeals procedure if it is to be constitutional. If an appeal is made it will be made to the courts and will prove to be costly. If it proves to be costly ordinary people will be eliminated and there will be long delays and uncertainty. In addition, it will not be the environmental experts who will make the final decision but rather the lawyers. I appeal to the Minister of State to reconsider her stance in this regard.
I am not convinced by Deputy Mitchell's arguments. While there is no question about the need for clarity in relation to environmental protection, devolving power to the planning authorities, much less to the sanitary authorities, to grant licences is not the way to give a clear signal to any potential industry that we have clear standards because what we would have would be different standards in different parts of the country where one applies for a licence. What we are seeking are the most stringent standards for Ireland to protect the country.
Ireland is unique in the European Community in that it has the advantage of not having had to put up with mass pollution caused by the industries we are judging. We have that advantage and we should protect and garner it for ourselves. I am minded, therefore, to support the concept of an integrated pollution control system and the mechanism which has been put forward by the Minister of State in the Bill. It is an essential part of the Bill and if we were to go any other route we would take from the Bill one of its most important strengths.
I do this on the understanding — this is an act of faith in the Minister of State — that the Minister of State will provide the necessary resources for the agency. She has indicated all along that she will do so. Without this back-up, support and resources the agency will be toothless; even with the appeals mechanism proposed by Fine Gael it would still be toothless.
While I support the principle put forward by the Minister of State a number of issues arise. Let me comment briefly on one of the points made by Deputy Mitchell. I do not support the principle that "Dublin knows best". I should say now that it is essential that this agency are not located in Dublin——
Wexford knows best.
——but rather in a part of the country that is green and clean and which has expertise in this area. While I make a strong case in favour of the part of the country that I happen to represent — it would be eminently suitable — the principle of centralisation in relation to this issue is a worthy one because I do not believe any local authority have either the resources or the desire to make decisions of this nature.
Let me give one instance in relation to the first activity I was ever involved in before I thought of standing for public office. In the late seventies the ESB applied to Wexford County Council for planning permission to build a nuclear power station at Carnsore Point. As the county manager and the members of Wexford County Council would admit, they did not have the competence to evaluate what effect or impact a nuclear power station would have on the environment. It was beyond the competence and resources of a local authority to make a proper evaluation. It would be inconceivable for us to ask every local or planning authority to equip themselves to make that sort of decision. On this issue, we need standards and clear signals. We need to have it clearly put to any potential investor that a high standard is demanded but that it will be consistent, fair and understood in advance. There will be many areas in the world which will attract industry with lax standards. However, the European Community will demand and have the highest standards. Green industries will be the industries of the future. A country like us, dependent on the food industry and our image of greenness, should build green industries in a green environment. We must protect our environment at all costs. That is what we are about in this legislation.
The Minister of State raised a number of issues about which I want clarification. There are a number of inconsistencies in the legislation. In relation to the requirement to submit an environmental impact statement with an application for a licence, it is not written into the legislation. Perhaps the Minister will address that. It is often necessary for an applicant to submit an environmental impact statement to a planning authority but, as the Minister pointed out, the planning process and the licensing process under this Bill are distinct and separate. If the Bill is passed as it stands the planning authority will not be in a position to make any recommendations or conditions in relation to pollution control. It is important to include in the Bill a requirement for an environmental impact statement as part of a licensing application to the agency. It might well be in breach of the 1985 EC Directive on environmental impact statements if that was not the case. I understand that the Government are already in trouble in relation to that Directive, and that a letter has already come from the Commission formally complaining about the carrying out of EC Directives.
Unfortunately, my amendments, Nos. 152 to 156 which related to the previous section and which would have addressed this issue, were not reached. It is important for the Minister to clarify the necessity for environmental impact statements as an integral part of the licensing procedure as opposed to the planning procedure which is a separate issue.
I would also ask the Minister to address the interfacing between the planning application and the licensing application, because it is very unclear. Under section 82 (4) co-operation between the agency and the local authority is quite inadequate. We have to look again at how they interface in relation to processing two aspects of the same application, one for planning permission and one for a licence. For instance, will there be two oral hearings, one for planning aspects and one for environmental impact aspects? That would be wasteful duplication and my amendment No. 197 would address this issue. The interface between the two mechanisms to grant planning permission and to grant a licence needs to be clarified as it will cause great confusion in local authorities in their attempts to deal with them separately.
In relation to the granting of licences generally, there does not seem to be any time limit for the granting of licences. This runs counter to the Local Government (Planning and Development) Bill, 1991 in which we are trying to put clearly designated time frames within which planning applications should be processed. It is wrong that no such time frame is incorporated in relation to the granting of licences. Perhaps the Minister intends introducing this by way of regulations. That is another point on which I seek clarification from the Minister. This is a very important section and I am anxious to deal with a number of amendments to it. We have fairly well exhausted the argument in relation to the merits of the agency or the local authority processing the licence in the first instance. I am convinced that the Minister is going about it in the right way, but I am not convinced that there is clarity in relation to the way it will operate. I hope the points I have raised will be addressed by the Minister.
In reply to Deputy Mitchell, I would assure him that no one in this country wants unnecessary bureaucracy to stand between this country and another industry. Sometimes applications take time. It is a question of achieving a balance between making a hasty decision which we and future generations will live to regret and unnecessary bureaucratic delay. Sufficient resources should be available at all times to deal with these matters on an efficient basis. Applications should not be put on a long list so that when they get to the top of the list it is found that there is nothing wrong with the application but that by that time the bird has flown. It is a question of resources.
I accept what Deputy Mitchell has said and I know that Fine Gael, like all the other parties in the House, are totally dedicated to the environment. Deputy Mitchell shows a touching faith and a naivety about international industry. Let there not be any mistake about it, multinational companies are seeking the lowest possible environmental standards. Let us not be in any doubt about it. We have only to look at what Union Carbide did in Bhopal in India a few years ago, where people are still dying as a result of the emissions there. Thousands have died and unfortunately thousands more will die. Let us be under no illusion about international companies. Some are good, some are bad and some are very bad and are only concerned with making profits. They are not concerned about the well-being of the people in the areas in which they set up, or about the long term consequences to the environment. We must never forget that.
Much of what I said earlier applies here but I will deal specifically with a number of points raised by Deputy Mitchell who was quite insistent that the local authorities should be the licensing authority for the activities specified in the First Schedule. I cannot accept that. It is neither desirable, practical nor effective in a small country like ours to give to the 33 planning authorities the kind of resources that would allow them to be equipped to deal with what we are talking about here. Most local authorities have to recruit the services of outside private consultants and they are effectively the people who set the conditions as far as local authorities and An Bord Pleanála are concerned. Neither the board nor the local authorities have the people to deal with some complicated and technical processes. I mentioned the recent Sandoz application where such a body had to be called in by the board. It would be irresponsible of us, when establishing a new agency which we want to have the kind of experts we need and the resources required, not to give them what is needed in this country. It would be grossly irresponsible to move away from that decision, even if it is unpopular with some members of local authorities. The position would then be as it is now, with different conditions applying in different local authority areas because of differences in interpretation or because different people are called in to assist with the licence. That is not satisfactory. I do not want to see people trawling around Ireland seeking a location where the standards imposed might be somewhat lower.
Deputy Mitchell said that it would be unconstitutional if there were not a formalised appeals procedure as provided for in the Planning Acts. I am advised by the Attorney General that there are no constitutional or legal problems as regards the procedure proposed in this Bill. It would not be possible to have a different body. I can think of no better independent expert body than the Environmental Protection Agency. Litigation on foot of decisions made by the Environmental Protection Agency will have to be on points of law. Every citizen is entitled to take a case on points of law. A decision by the agency to grant or not to grant a licence will not be open to appeal through the courts. Appeal can only be made on points of law and this applies in respect of all legislation.
Local authorities have a dual role. They are the guardians of our environment in the main. The vast bulk of environmental protection legislation is implemented and enforced on the ground by local authorities. They will remain, after the establishment of the agency, the main enforcing authority. The agency will have a supervisory role over local authorities in relation to the implementation of environmental protection powers.
Local authorities are also development authorities and the recent relaxation of theultra vires rule gives them more powers in that regard. Conflicts often arise on the ground where locally elected members are drawn into debate whether they should allow a particular activity that will generate employment or maintain high environmental standards. Invariably in that kind of debate the environment loses out. Environmental concerns are swept aside as people are carried away with the notion that we can have jobs at any cost. Because of the dual role of local authorities, it is not always desirable that they should be decision-making bodies. It is a function of elected members to direct a manager to grant permission for a particular activity if they so wish, under a restricted section 4 mechanism. It is appropriate that we should take away from local authorities the function of granting licences in respect of major enterprises which have the potential to cause pollution and give that function to a totally independent, expert body.
When this system is operational it will be seen by the public as most appropriate. Many members of the public are not necessarily concerned about objecting to a particular activity. They are often more concerned with ensuring that the activity is carried on to the highest possible environmental standards so that if something goes wrong their health and their environment will not be placed at risk. They want to know that the body enforcing the standards and the controls has the expertise and the clout to protect them. The public have the right to expect that and anything less from the Environmental Protection Agency would make it a toothless advisory and consultative body. An Foras Forbartha did outstanding work in relation to the environment but they were not operationally independent from the Department and did not have any teeth in relation to making decisions. Their work was nevertheless invaluable to the Minister, the Department and the Government.
So invaluable that they were abolished.
They did not have the clout to allow them to make decisions. That was one of the weaknesses in the structure. If we were to remove this central core power from the agency we would turn it into an advisory and consultative body.
Deputy Howlin said that we in Ireland want green companies with high environmental standards. I totally agree. I often thought that only idealistic environmentalists felt that jobs would be created in the future because of the environment, but I was pleased recently to note the Culliton report, which has been acknowledged as the most radical review of industrial policy, stated that it could be in the interests of our economy to strive for the highest possible environmental standards.
The sectors of the economy which have the greatest potential to create jobs are agriculture, food and tourism. We can achieve premium markets abroad if we protect our clean, green image. Environmental considerations are an important factor in gaining entry to the premium markets in the Community and the world at large. Tourism is a labour-intensive sector which has greater potential. Tourists will not come to Ireland for the Torremolinos-type of holiday. They will come for golf or fishing or to walk and tour areas of outstanding beauty. They are attracted by the environment which has so much to offer. There is often an assumption that there is a need to strike a balance between a certain amount of pollution and a certain number of jobs. In future it will be jobs because of the environment rather than pollution because of jobs.
I want to refute Deputy Mitchell's suggestion that Dublin knows best. The assumption is that if a structure is centrally organised the people making decisions do not know what they are talking about. Although this body will have a central national headquarters, it will also be located in the regions. It will be decentralised since it will need people on the ground to monitor and enforce.
The headquarters should not be in Dublin.
Deputy Howlin made a point relating to the Planning Bill. There is no time limit in this Bill on the making of a decision about a licence. After two months the agency will be required to make known their thinking about the licence, but when comments or objections are received the agency are not required to make a decision within a specific time. If we are seeking to expedite the decision-making process and we are in the process of passing a Planning Bill, it is desirable that we should not, while speeding up planning, have further delays in the licensing procedure. I thought of introducing an amendment at this point but on reflection, since this legislation will be passed before the Planning Bill, I think it is better to leave a decision in relation to the time period for discussion under the Planning Bill. It is the intention to introduce the same limits to the licensing procedure that apply in the planning legislation. Everybody acknowledges that we do not have to delay making decisions in order to make the right decisions. Once the resources and the people are available we will be able to make the decisions much more speedily than in the past.
Deputy Howlin asked about the environmental impact assessment procedure. I agree with the Deputy, and provision will be made in regulations for those activities requiring an environmental impact assessment procedure. To the best of my knowledge, that is provided for in the First Schedule to the Bill. Obviously the agency will have to receive a copy of the environmental impact assessment procedure as will the planning authority. The one environmental impact study will suffice for the agency and the planning authority but what will be required — we will be providing for this very clearly — is that the agency will make decisions relating to environmental pollution and the planning authority will make decisions on planning matters. Obviously, it is desirable that there be no duplication or confusion which would lead to litigation. Therefore, it will be clearly defined that the agency will make decisions in relation to environmental pollution matters and the planning authority will make decisions on planning matters.
We must realise that any Minister for the Environment will find it much easier to get the resources required to properly fund this agency — that is certainly my intention and that of the Government — if the agency have teeth, power and clout and carry out licensing activities rather than being another advisory consultative body. With respect to such bodies, as most Deputies know, bodies that do not have clout to make decisions rarely have the muscle needed to get resources. When times are difficult and there are competing interests for resources, invariably it is those bodies with merely a consultative role who are left behind and are starved of resources. From my point of view and that of any Minister with responsibility for environmental matters regardless of who is in power, it will be much easier to get resources if the agency have a licensing role.
Because of the role we are giving the agency, they will be able to get licence fees and charge the full cost of monitoring. The taxpayer should not have to subsidise the cost of monitoring activities. If one particular activity has to be monitored more often than another, it will have to pay more. If a particular activity is the cause of more complaints than another, it will require more monitoring and, therefore, it will cost more. As a result of the procedures in this Bill, it will be in the interests of activities to keep their house in order and to enforce the standards expected of them under the licence. If they are the cause of nuisance and complaint, they will obviously require more monitoring and more of a hands-on approach by the agency and, therefore, they will be charged a greater fee. That kind of disincentive will make many activities clean up their act and abide by stringent conditions and controls.
We have spent quite a long time on this section and I know Deputies have sincerely held views as to the best way forward. Deputy Mitchell holds one view while Deputies Howlin and Garland hold another, and I share their views. I believe that if we were to remove these powers from the agency they would have no credibility among the public at large; it would be to the delight of many industrialists, particularly those who have been the cause of complaint, who would see a return to thestatus quo. Since the concept of this agency was first mooted, and particularly now that it is being brought to final fruition, greater efforts have been made on the part of certain industries to clean up their act and ensure that they operate to the highest possible standards. The reason for that is a fear of the new controls, the new independence and the new clout this agency will have. It will not be open to anybody to lobby the agency to consider any particular activity more favourably than others. We all know that happens at present and it will continue to happen if a large number of authorities are responsible in this area and are governed by political persons. In those circumstances, there will always be the risk that people will be lobbied and that they, in turn, will lobby for a more favourable decision in relation to certain people or activities. That is undesirable and is not in the interests of the environment or the implementation of high environmental standards in the future.
A feature of this Committee Stage debate is the very long winded replies from the Minister. About ten minutes ago she said "and lastly", and she lasted. That reminds me of the story in my parish where the parish priest and the curate give sermons of different lengths and when the curate says "in conclusion" he usually concludes but when the parish priest says "and lastly" he usually lasts. Considering the length of the Minister's contribution today, it is a very strong argument against women priests, or at least women parish priests.
I knew I was born to be a parish priest.
The Minister has admitted that there will be no appeals procedure, and that reinforces my argument about the constitutionality of this legislation. Citizens must have an absolute right of appeal, whether they be applicants appealing against a refusal of or excessive conditions attaching to a licence or third parties appealing against a decision they considered was too lax or that the decision was wrong. There should be a basic appeals procedure. This legislation is robbing small people who do not have resources of their rights, and that is a mistake.
The Minister repeated that she wants a body with teeth. Is she saying An Bord Pleanála have no teeth? Of course they have. They are a very powerful body but they do not make the initial decisions. I cite that one example to dismiss the notion the Minister is implying that if the Environmental Protection Agency were not allowed make licensing decisions they will have no teeth. They will have a lot of power overseeing general environmental matters as well as the performance of local authorities. I do not want to make the mistake the Minister made by going on at length because we have agreed a time schedule for these sections. However, I am very disconcerted by the Minister's stance. It is very clear that the legislation is fundamentally defective and is probably unconstitutional in not providing for an appeals procedure.
The Minister made much of the idea that people would lobby. Is it not right that people should have a right to lobby officials or elected representatives if they feel strongly about a licence or planning application? Is it not democracy that they make their views known and protest? The effect of this Bill, although it is not intended, will be to remove from people any influence they have over their local environment. The Environmental Protection Agency will make the decisions whether they are located in the sunny south-east——
That would be a good location for them.
——or in Dublin Central where, of course, I would like them to be. That will be a central agency and local people will have virtually no say in decisions and certainly will have no right to appeal. That is a mistake.
I have made my points on this section so I shall not delay the House in that regard. One aspect I wish to address is the constitutional question raised by Deputy Jim Mitchell. I am advised that there is no constitutional right of appeal against an administrative decision but there is a constitutional right of access to the courts. For that reason, while I am advised at the highest level that there is no problem of the Bill being unconstitutional for not providing an appeals mechanism, it is my contention that there is a real difficulty with section 83 (8) as drafted. That provision is probably unconstitutional because it provides a fixed period of two months for a judicial review. The Minister may be aware that Mr. Justice Costello declared a similar section in the Local Government (Planning and Development) Act, 1963 unconstitutional in a case,Brady v. Donegal County Council. That decision was overturned by the Supreme Court on a technicality because the plaintiff had no locus standi. However, I am advised that the validity of the High Court judgment has been upheld. I ask the Minister to reconsider that aspect carefully. I suggest, modestly, that my amendment, No. 195, would save the section from being declared unconstitutional. The Minister should consider accepting that amendment.
We have debated at length the merits and demerits of where the licensing procedure should start. I have made my views very clear on that issue and we should make a decison on it.
Deputy Mitchell said An Board Pleanála are not a toothless body and implied that the agency should be an appeal body in relation to licences. However, his amendments seem to seek to give the powers of appeal in relation to licences to An Bord Pleanála rather than to the agency. In relation to Deputy Howlin's problem with section 83 (8), I shall take advice again before Report Stage. I shall again consult the Attorney General concerning the time period and the cases referred to by the Deputy.
Is Deputy Mitchell pressing the amendment?
I am not sure whether the Minister wishes to accept it.
No, I am afraid I cannot accept the amendment.
I move amendment No. 170:
In page 57, subsection (1), lines 38 and 39, to delete ", other than an established activity,'.
This amendment seeks to alter section 80 (1). Under the terms of the subsection as drafted existing industries are excluded from the full force of the legislation. Industries that are already polluting should be brought into the net of the legislation. I know that by way of regulation the Minister seeks to give some room to manoeuvre to industries now causing pollution. Will the Minister define for the House the time frame she has in mind. It would be wrong for industries that are up and running to be exempted from the full rigours of this legislation if they are having a negative impact on the environment and are a source of pollution and causing damage not only to the environment but to the inhabitants residing nearby. While I do not expect the provision to operate on the day after the President signs this Bill into law, it should certainly be operating within an acceptable and reasonable timeframe. I should like the Minister to outline her views in relation to that issue now.
I support Deputy Howlin's amendment. Throughout the Bill the Minister seems to be creating a two-tier system for industry. On the one hand, new industries will face the full application of the Bill and the full powers of the Environmental Protection Agency, its licensing procedure and so on. On the other hand, it appears that there is at best a watered-down application of the terms of the Bill and, in some instances, complete exemption from its provisions for existing industries.
It is fair to say that many of the problems in relation to the environment and those that have prompted opposition to new industry derived from existing industry. For example, the opposition to some of the new projects in the Cork area was motivated primarily by concern that had first arisen in relation to pollution by existing industries.
The approach by the Minister that creates a two-tier system, with a relatively environmentally strict regime for new industry and a relatively environmentally lax regime for existing industry, is wrong. A greater effort will have to be made to ensure that existing industry, particularly those causing pollution and the principal cause of concern among local communities, are dealt with.
In the interests of time, I will merely say I also support Deputy Howlin's amendment.
I should like to put on record, as other speakers have, support for this amendment from Fine Gael. It is important to provide for the maximum possible local control. I also wish to stress the importance of introducing a proper appeals procedure.
It is the intention that existing industry will be licensed by the agency. There is no question but that the agency will be the licensing authority for all existing activities covered by the First Schedule. I agree with Deputies that it would not be acceptable that the agency apply itself only to new activities because, generally speaking, the newer the activity the better its environmental standards.
If I accepted this amendment every existing activity would become illegal from the prescribed date for the operation of the section. I do not think that would be the Deputy's intention. I will examine this and possibly introduce an amendment on Report Stage.
One of the difficulties that arises — which is why it was proposed to be done by way of regulations and orders — is that it will take some industries longer than others. For example, in regard to the integrated pollution control licence being discussed at European level, the dates being mentioned in relation to the operation of that licence involve a period as long as 15 years. I do not anticipate, nor do I wish that all Irish industries included in the First Schedule should have 15 years or anything like that length of time. We must be practical. Different dates will be applicable to different sectors. It is desirable that all existing activities be brought within the ambit of the agency's remit within a couple of years. Certainly that is the intention. But we must do so on a sector by sector approach.
In the case of older, longer established industries, we must remember we are requiring enormous sums of money to be spent on environmental protection to meet new standards. We must also realise that a new industry, having been licensed, becomes an existing industry, an established activity. Therefore, an industry licensed today, last week, or in the last couple of months, from the first day of operation of this agency, would be an established activity even though it may have been licensed under the most modern controls, having high standards enforced on them, the licensing conditions being tough. It would not be desirable that that industry would necessarily have to be granted a licence initially by the proposed agency. If their licence had been granted in recent times the chances are it would be one carrying the highest possible standards. Therefore, there will be many difficulties encountered in applying the provisions of this section to existing activities, to do so in a manner that is fair, affording an industry some time to prepare, to gather resources together, to get their act together, to have the new controls put in place before being granted a licence, before their activities be monitored and controlled by the agency.
I want to make it abundantly clear that it is my intention to include as many industries nationwide in the First Schedule as is possible, as quickly as possible. After their inception and proper operation the main work of the agency will be in relation to existing activities, relicensing such activities, or licensing some for the first time.
Unfortunately, I cannot accept Deputy Howlin's amendment because of its effect in that we could not have circumstances prevail in which everything now licensed would become illegal once the provisions of this section were enacted. However, if I can, I will return with an amendment in relation to this matter on Report Stage.
I must remind the Minister that, when an identical amendment was moved in the Seanad she said she would be happy to look at it on Report Stage in the Seanad. It has gone through Report Stage in the Seanad and we are on Committee Stage here. Yet we still do not have an amendment that would fit the Bill. I accept what the Minister is saying. I do not envisage circumstances arising in which every industry, on the day the Bill is enacted, would have to have a licence or shut down. Obviously that would be rather draconian. Nonetheless, clarity is required in relation to the time span.
The Minister indicated that the time span in the case of existing industries in the United Kingdom was five years. She indicated also in the Seanad that she did not envisage the need for such a long time span. I might refer her to the Official Report of the Seanad proceedings in that respect. The Minister has not clarified the issue. I accept the principle of what she says. On Report Stage, I hope she will return with a specific time span so that we can be confident, as Deputy Gilmore has said, that there will not be a two-tier system in respect of new and existing industries. With that in mind I will withdraw my amendment.
We move to amendment No. 171, which I understand was discussed with amendment No. 6. I understand the Minister accepted amendment No. 6.
Yes, I accepted that amendment.
It is consequential and simply replaces a section in a different part of the Bill. I move amendment No. 171:
In page 58, lines 10 to 23, to delete subsection (4).
We move to section 81, amendment No. 172 which has been discussed already.
I move amendment No. 172:
In page 58, subsection (1), line 24, to delete "the Agency" and substitute "a sanitary authority".
Is the amendment agreed?
It is proposed that amendments Nos. 174 and 180 be discussed together, by agreement.
I move amendment No. 174:
In page 58, subsection (2), between lines 41 and 42, to insert the following:
"(e) areas of environmental sensitivity, and
(f) the National Environmental Development Plan.".
I hope the Minister can accept that this amendment improves the section.
As I understand it, that amendment fell on an earlier Part of the Bill.
I am not pressing the amendment.
We come to amendment No. 176. It is proposed to take together amendments Nos. 177, 180a, which are related, and amendments Nos. 177a, 178 and 179, which are alternatives to amendment No. 177, together. Therefore, it is proposed to take together amendments Nos. 176, 177, 177a, 178, 179 and 180a. Is that agreed? Agreed.
I move amendment No. 176:
In page 58, subsection (3), line 43, to delete "that —" and substitute "that the granting of such a licence meets the obligations contained in section 4 (1) of the Act".
I propose withdrawing both amendments Nos. 176 and 177. My amendment No. 177 a reads:
In page 59, subsection (3) (e), line 15, after "activity" to insert "or arising as a direct consequence of the activity,".
This amendment is to section 81 (3) (e). Section 81 (3) begins:
The Agency shall not grant a licence or revised licence for an activity unless it is satisfied that ...
and it goes on to list various conditions. I am unhappy with section 81 (3) (e) which reads:
any emissions from the activity will not cause significant environmental pollution, and ...
I propose to add, after the word "activity" the following, "or arising as a direct consequence of the activity,". The Bill, as drafted, implies an over-restrictive definition of "activity". It includes only emissions from the activity, whether it is a factory or plant, and does not take account of other emissions into the environment arising as a direct result of such activity and which would not have occurred had such activity not taken place. An example would be a radiation plant being established where the supply of cobalt 59 to fuel the plant would have significant environmental implications which might not necessarily occur within the vicinity of the plant but nonetheless arise as a direct consequence of the decision to grant a licence to that plant. Another example would be a process resulting in the generation of hazardous waste. Perhaps the Minister could respond quickly to that point.
May I pose one further question in relation to my amendment No. 179 to which the Minister might also respond? This relates to the provisions of section 81 (3) (f) which reads:
the best available technology not entailing excessive costs will be used to prevent, limit, eliminate, abate or reduce any emissions from the activity ...
I presume the "or" category would not give an opt-out, that a mere reduction would be sufficient. The import of my amendment is to ensure that all those conditions would be required and not simply a reduction in emissions.
With regard to Deputy Howlin's amendment, I have already tabled an amendment to BATNEECs, to render it a much stronger requirement. This should cover the point Deputy Howlin is making.
"Or reduce"— would the reduction then be sufficient? The Minister will see what I mean if she reads the words.
Obviously a reduction is required only where it is not possible to prevent.
As it reads, it appears that would be sufficient but I will revert to it on Report Stage.
I cannot accept Deputy Garland's amendment because were it to be read in a literal sense, it would mean that, for example, even an emission from a lawnmower would come within the licensing regime of the agency. That would not be desirable, necessary or acceptable. Perhaps we can deal with this on another occasion.
On this Part of the Bill I will be tabling amendments on Report Stage in relation to the appeals procedure.
On a point of order, let me just say, to be helpful to the House, since Deputy Howlin sought to have the order amended this morning. I am consulting the parliamentary draftsman with a view to reclarifying the provisions of section 87 in relation to registers and so on, and also in relation to section 94 to accept a good amendment, No. 235, in the name of Deputy Garland. Hopefully I will return with suitable amendments on Report Stage.
I must now put the following question:
That the amendments set down by the Minister for the Environment and not disposed of in Part IV of the Bill are hereby made to the Bill and, in respect of each of the sections undisposed of in the said Part, other than section 96, that the section or, as appropriate, the section, as amended, is hereby agreed to.
Did the Minister accept any amendments?
I am prepared to consider one of Deputy Garland's amendments.