Environmental Protection Agency Bill, 1990: Report Stage.

An Leas-Chathaoirleach

I remind Senators that they may speak once on Report Stage except for the proposer of an amendment who may reply to the discussion on the amendment. Also on Report Stage, each amendment must be seconded.

Is it possible for someone to formally second an amendment and reserve the right to speak later in the debate? I realise we can only speak once and I have no problem with that but is it possible to formally second it and reserve the right to speak later?

An Leas-Chathaoirleach

The Senator must speak when he seconds the amendment.

I accept your ruling but I do not think it is very helpful.

Do we speak once on each amendment, section or sub-section or once in response to what the Minister says?

An Leas-Chathaoirleach

The Bill is not considered by section, it is considered by amendment. Senators may speak once on the amendment except for the proposer of the amendment who may reply.

Can we speak to amendments that are out of order even if we are not the proposer?

An Leas-Chathaoirleach

The person who has an amendment tabled can speak twice. He can speak when proposing the amendment and he can reply to the discussion. Senators may only speak once on other people's amendments.

Even if the amendment is out of order?

An Leas-Chathaoirleach

Amendment No. 1 is a Government amendment. Amendments Nos. 1 and 2 are related and both may be discussed together. I call on the Minister to speak to amendment No. 1.

Can Senators speak on amendments that are ruled out of order?

An Leas-Chathaoirleach

No.

The Chair's reply was one could.

An Leas-Chathaoirleach

No. I did not give that reply nor did I infer that, Senator Honan.

Well done. Senator Honan will keep the House in order.

Government amendment No. 1:
In page 7, to delete lines 19 to 24, and substitute the following:
"2.—(1) Part I, Part II (other than section 42), Part IV (other than section 90) and Part VI will come into operation on the passing of this Act.
(2) The remaining provisions of this Act shall come into operation on such day or days as may be fixed therefor by any order or orders of the Minister, either generally or with reference to any particular purpose or provision or with reference to a particular area or areas, and different days may be so fixed for different purposes and different provisions of this Act and for different areas.".

This amendment arises from our discussion of section 2 on Committee Stage. I indicated that I would re-examine the section with a view to having a more definite expression contained in it concerning the commencement of the various provisions of the Bill once it had been enacted. There was general acceptance that a specific date for commencing the legislation would be inappropriate because if it could not be commenced by that date, it would fall. For this reason I cannot accept Senators Doyle's and Naughton's amendment. I have, however, reconsidered the provisions in the Bill and I have come forward with a revised version providing for a positive statement ensuring that those elements dealing with the establishment of the agency, the integrated pollution control licensing procedures and Part VI will come into operation on the passing of the Bill.

I outlined previously to the House the Government's strategy with regard to the assignment of functions to the agency on a phased basis commencing with the operation of an integrated licensing system and for those activities listed in the First Schedule and for additional functions to be assigned to the agency as they are capable of taking them on. This approach will enable the agency to approach the tasks assigned to it in the Bill in a structured and effective manner and will ensure that the agency is given every chance of success in performing its allotted tasks. My amendment, therefore, will satisfy the desire of the House that the principal provisions of the Bill will come into effect on enactment while allowing the agency to build up its expertise to take on the additional functions.

So far as the assignment of the other functions of the agency is concerned, it is my intention and that of the Government that they will be assigned without any undue delay. To a large extent, it will depend on how fast the agency will be able to provide the necessary staff, many of whom will have to be recruited on the open market.

The fact that Part VI will come into operation immediately will not make any difference to section 107 where the Minister undertook to substitute "shall" for "may". I do not think she has done so but we can come to that later. The fact that it comes into force does not make it any more obligatory on the Minister to do so than it was before-hand.

Amendment agreed to.

On a point of order, does the Minister propose all her own amendments without a seconder?

An Leas-Chathaoirleach

The Chair requests the Minister to move the amendment. Government amendments do not require to be seconded.

We are here if needed.

We know that.

Amendment No. 2 not moved.

I move amendment No. 3:

In page 8, between lines 15 and 16, to insert the following:

"(c) an emission which is a pollutant by reason of its smell,".

I understood the Minister to be reasonably well disposed towards the point we were trying to make on Committee Stage. As the concept of smell has not been included in legislation to date, it is difficult to define. It may mean a different thing to different people. I hope the Minister accepts the point we are making because to the general public obnoxious smells are one of our greatest pollutants. It was said before that what was obnoxious to me may be quite pleasant to someone else and vice versa. Those of us living in rural Ireland are used to a variety of smells that are part and parcel of daily life there whereas somebody from a city area may find the smell from a silage pit or an effluent tank obnoxious.

I accept there may be difficulties as regards definition but the Minister should introduce, either by way of this amendment or by wording one herself, the concept of smell as a pollutant in certain cases. I urge the Minister, notwithstanding the considerable discussion we had on Committee Stage, to look at this point again. A definition of smell, olfactory nuisance or any other high-falu-tin phrase that may be considered necessary by the parliamentary draftsman should be included in this Bill. I am very familiar with the Air Pollution Bill because the initial drafting of that Bill took place in the Department of the Environment while I was there and I know the arguments for and against this type of issue. I do not consider that adequately covers what is perceived by the general public today as the nuisance of obnoxious smells of one kind or another. I ask the Minister to look at this. I hope she is in a position to accept my amendment or to improve on the words herself. If she is not prepared to do so, I would like a satisfactory reason because it is an area the Environmental Protection Agency will come up against regularly in the future.

I second the amendment not simply to facilitate debate but because I agree with it. In the environmental impact study prepared for Sandoz by EOLAS there is a less than happy discussion on the incidence of offensive smells in the lower harbour area of Cork. I am not trying to be provincial but that is an area where there were many environmental problems. The way EOLAS dealt with that was to coin a phrase, rather sniffy, saying that methyl mercaptars which were the source of the smell were not really a health hazard until they reached a concentration well in excess of that which produced an offensive odour. They implied that because this awful smelling substance was not a health hazard, the smell could not be seen as a serious environmental hazard and the conventional definition of a hazard in terms of the chemical industries at least does not just include those things which are life threatening. It includes things which are insulting to the environment like, for instance, smell which may not be from a substance which is toxic or harmful but can be environmentally offensive. It is no good stating the obvious, which is that we have no instrument yet which can detect smell. That is not the solution. That is like saying that substances that are known to be very hazardous can be released in quantities less than that possible to detect with modern instrumentation. The only solution is to minimise the release of such substances.

In order to ensure that we are not left with things which when instrumentally or scientifically measured produce no health hazard but which can, as happened in the Cork harbour area where children went home from school vomiting violently as a result of the offensive smell, damage the quality of life it is necessary to include smell in those things which can be seen as environmentally offensive. It is the most self-evident fact that, for instance, to live near a badly managed intensive pig farming unit, chemical plant or tannery and so on there may not be anything that is physically or medically damaging but, as sure as night follows day, the smell will destroy the quality of life just as much as noise, for instance, which is referred to extensively later on in this Bill. I second the amendment and I am happy to support it.

I indicated on Committee Stage that I would have another look at the question of smell to see if there was any need for an amendment in the light of the discussions. Since then, I have had the matter thoroughly reviewed in my Department and I am satisfied that this amendment is unnecessary. Smell is caused by one or more chemicals released into the atmosphere. As such, it comes under the definition of emissions in section 3 by reason of the fact that this definition includes an emission into the atmosphere as a pollutant within the meaning of the Air Pollution Act, 1989. Air Pollution includes matters that have power to interfere with amenities or the environment. Smell clearly comes under this definition and prosecutions have been taken on foot of this definition. For example, Tipperary South Riding County Council successfully prosecuted Munster Proteins Ltd., in Cahir for offensive smell under the Air Pollution Act.

Smell is an air pollution problem and there appears to be adequate legislative provisions for its control. The difficulty in controlling smells would appear to arise at the enforcement level due to the difficulties in monitoring the nature and sometimes mobility of the source and the subjectivity aspect of the problem. Legislative controls which apply to this area include legislative controls as defined by activities licensed by the agency. Any odour or smell from activity licensed by the agency is covered by the definition of emissions and would, therefore, be subject to the control of the agency through the integrated licensing or through other powers which will be available to it under the Air Pollution Act. Smells from sources other than an activity licensed by the agency are subject to control under the Air Pollution Act, 1987, in relation to waste the European Communities Waste Regulations, 1979 and under the nuisance provisions of the Public Health Act, 1987.

At present, smells from any plant licensable under the Air Pollution Act, 1987 are controlled by the local authority concerned through the implementation of the conditions to any such licence issued and the general powers available to it under the Air Pollution Act, 1987. Many of these plants on the establishment of the agency will in the future be licensable by the agency. In the case of nuisance, subsection (24) (ii) of the Air Pollution Act, 1987 provides for an offence for the occupier of any premises to cause or permit an emission from such premises in such a quantity or in such a manner as to be a nuisance. It is quite clear from the definitions used in the 1987 Act that smell is covered by this prohibition. There are other controls under the Air Pollution Act. For example, under section 26 a local authority may serve a notice on the occupier of any premises to prevent or limit air pollution which includes the emission of any substance which impairs or interferes with amenities or with the environment. It is obvious that smell comes under this provision.

Smell in the context of the disposal of waste is dealt with under the European Communities Waste Regulations, 1979 under which there is a general prohibition on the disposal of waste in a manner which could cause a nuisance through noise or odours. Under section 107 of the Public Health (Ireland) Act, 1878 this specifies the types of behaviour and activities which would constitute a nuisance. These are wide and include, for example, any premises in such a state as to be a nuisance, any ditch, gutter, drain or ash pit or fowl in such a state as to be a nuisance, any animal so kept as to be a nuisance, any accumulation or deposit which is a nuisance. It is clear that offensive odours would fall into a number of these definitions. The penalties payable under the 1878 Act are being increased under section 109 of this Bill.

The points raised by Senators are adequately covered in the wide range of legislation I have referred to. It would be duplicating already existing legislative provisions to specifically include a reference to smell in this Bill. I do not believe it is necessary. I am not in a position to accept the amendment.

I am disappointed the Minister has not accepted this amendment. She listed a whole series of Acts and regulations under which people can be prosecuted for the production of these odours or their emission. These controls are not effective. If you drive from Dublin to Cork or Dublin to Limerick on a warm day you will find people spreading slurry the smell of which is quite simply disgusting. I wonder why nobody is prosecuted for this type of behaviour. It creates a curious impression on tourists who come to this country because it is fresh, green and environmentally friendly.

It is green as a result of the slurry that was spread the previous year.

Organic farming.

They find these odours as they make their way west where things get even fresher and greener.

The Senator would know.

I am anxious that fields be kept fresh and green but also that people would not be nauseated when they are in the west having passed by some of these disgusting smells on the way down to Limerick. I am sure Senator Honan experiences them more frequently than I as she makes more frequent trips down there than I do.

We will look after the west; let the Senator look after Dublin.

The existing regulations are quite inadequate to deal with this problem which in many ways is a running sore for anybody who comes to this country to experience the environmentally friendly atmosphere we are supposed to have here. The present provisions are totally inadequate and I greatly regret the fact that this Bill does not directly cater for the problem of disgusting smells. There is a big difference between odours which are a health hazard and those which are simply unpleasant.

I spoke on Committee Stage about the difficulty of measuring smell. I also raised at that time the difference between a nuisance and an annoyance as opposed to a pollutant. I am very sorry for Senator Upton and his citified sense of smell which has taken him into urban Dublin. I do not see much wrong with the smell of slurry. I have to put up with it every couple of weeks. It is part of the process of agricultural development. Senator Upton's attitude is very like that of those who, if you stick a spade in the ground, line up to object to whatever you are going to build. It is the same thing. There is a certain amount of inconvenience at any level of industry. Having been accused of being anti-farmer some minutes ago, I would thoroughly support the farmers doing their business——

Go back to Clare, Senator Upton.

——and spreading the goodness of slurry and whatever else on the land. Senator Upton has been too long in the city. He should go home for a while.

I agree with the Minister. This is a Bill about pollution. It is not about nuisance or annoyance. It has not been suggested by anybody that the smells referred to are polluting the atmosphere. Those that are a pollutant can be dealt with under the 1987 legislation. I think that is where the distinction has been made. There is probably a middle ground we have failed to address and we have failed to address it because the calibration or measurement of smell is not possible. It may well be that a more sophisticated form of measurement can be introduced some time in the future but it is not available at the moment. The Minister has offered a fairly good middle ground as to how we can address this issue and I accept her explanation.

In my view the contributions from the opposite side of the House highlight the difficulty we would have if the amendment were to be accepted. What appears to be a quite pleasant odour to Senator Doyle is a very unpleasant one to Senator Upton. It should be said that the word we are looking for is "odour" rather than "smell". To suggest that Senator Doyle smells would suggest to me that she is capable of using her olfactory senses rather that she emits an unpleasant odour, which I would never suggest of the Senator.

The point I wish to make is that the problem is that an odour is the by-product of the emission and it is the emission we must deal with and in dealing with the emission we, therefore, deal with the unpleasant or pleasant odour. It should also be pointed out that there are some very toxic substances which are odourless and are capable of killing. For that reason I do not see the merit of the amendment.

Amendment, by leave, withdrawn.

I move amendment No. 4:

In page 10, line 27, after "the" to insert "handling and".

I would like "handling" to be specifically part of the wording on page 10 in relation to section 4 (2) (c). I would like it to read: "the handling and the disposal of waste in a manner which would endanger human health or harm the environment". Again, this was discussed and debated quite well on Committee Stage. I regret the Minister feels she cannot accept the more explicit terminology I have proposed.

The suggestion that we include "handling" as well as "disposal" came to me specifically from the scientific community. It may be assumed that when waste is disposed of it has to be "handled" somehow, mechanically or manually. The scientific community felt that in view of the importance of this and of the way industrialists and other large concerns have been able to get around legislation in the past we must be specific in saying that this applies to the handlers as well as to the disposers and often they are two different people. In case the legal people are given a field day in defining exactly who does the handling and who does the disposing they would like the two kept together and that we would refer to the handling and the disposal rather than just the disposal which is too weak if it was challenged legally.

I second the amendment.

I indicated on Committee Stage that this amendment, if adopted, would lead to every householder and shopkeeper in the country coming within the ambit of the agency. Such control is clearly a matter not for the agency but for local authorities. The handling of waste by activities licensed by the agency could, of course, be the subject of conditions attached to a licence under Part IV of the Act, Subsection (1) (k) of section 81 provides the conditions in a licence may specify the nature of treatment to be applied to waste and the manner in which it shall be held or disposed of. I consider this adequately covers the point at issue. In other words, the handling of waste by licensed activities can be regulated by the agency attaching appropriate conditions to the licence.

The points made by Senator Doyle in moving her amendment in relation to the handling of industrial or agricultural waste — I accept the points she has made and particularly the legal implications — are matters which will be dealt with in the context of the new waste Bill which is currently being drafted in the Department. To include "handling" here would bring every householder who handles or produces waste and every shopkeeper and so on under the ambit of this agency. I do not think that is desirable nor is it the intention.

In the definitions section of the Bill, the definition of "disposal" reads:

"disposal", in relation to waste, includes the collection, sorting, carriage, treatment, storage and tipping above or under ground, and the transformation operations necessary for its recovery, reuse or recycling;

Amendment, by leave, withdrawn.
Amendment No. 5 not moved.

I move amendment No. 6:

In page 11, line 6, after "circumstances" to insert "in particular the need to prevent environmental pollution".

I know the Minister is going to say that amendment No. 7 covers this. This amendment relates specifically to an amendment I introduced——

If I may interrupt you Senator, amendments Nos. 5, 6 and 7 are related and may be discussed together.

That was one of the reasons I suspected that I knew what the Minister was going to say to me but I may be wrong. When we discused this the Minister said: "I will be happy on Report Stage to accept the amendment in this form, or words to this effect, if that is in order". The Minister put down an amendment which deals in a far more limited fashion with the same issue. This amendment suggests that the definition of the best available technology not entailing excessive costs should be as it is there:

to prevent, limit, eliminate, 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.

The purpose of this amendment is to insert after "circumstances" the simple phrase, "in particular the need to prevent environmental pollution". That is a position that has been expressed very vigorously to me by people who work in the chemical industry, among other areas, that it is important to make it clear that the objective of BATNEEC is to prevent environmental pollution. The Minister's amendment No. 7 is a somewhat narrower understanding because it applies largely to a clarification of what constitutes "costs". It says:

"...after "costs", to insert ", having regard to the risk of significant environmental pollution which, in the opinion of the Agency, or any other licensing authority is relation to section 108, exists".

It is a rather subtle but important distinction. One is an assessment of risk of pollution which is what the Minister has in mind and the other is a statement of principle about what we are about. They are not the same thing.

They are not the sort of thing with which I want to take up the time of the House but I do not believe that an elaboration on what is meant by "excessive costs" can be taken as stating that the objective of the best available technology is to minimise environmental pollution. I do not believe they are the same thing, particularly the assessment of risk. Risk is a balance of probabilities. It involves two things. It involves, first, the likelihood of something happening and secondly, the scale of the damage that will be caused by that happening. If you want to get a risk index the usual way is to multiply the probability by the number of casualties and that gives a risk index which can be used, in my view, somewhat spuriously to quantify things that are still at such a primitive state that they cannot be quantified.

The principle contained in subsection (1) is an attempt, albeit a somewhat limited attempt, to define BATNEEC and which makes it clear that the principal overall objective is to accept the need to prevent environmental pollution, not to reduce the risks, not to change the risks or to limit the risks but to prevent environmental pollution. That is what we discussed on Committee Stage. That is what the Minister said she accepted and I, for one, must say that I do not think her amendment meets those objectives. It meets a separate objective which is to ensure that costs are judged in terms of the risk and that is a very different matter. Adjudicating cost for prevention against risk is one thing, but stating the principle that the objective of all of this is to prevent environmental pollution is a much more global concern of which assessment of risk in terms of ultimate cost is a specific example, but it is not the same thing. That is why I move this amendment.

I second amendment No. 6. In doing so I would like the Minister to put on record the answers to a few questions. Who will define the concept of "excessive cost"? Excessive relative to what? At what price environmental protection? At what price the protection of human health? Excessive costs in relation to a greenfield operation are totally different to what may be considered excessive costs when retro fitting an existing plant that needs updating or modern technology applied to it or scrubbers installed in the emissions stack or whatever. We need to be more specific. I recall our discussing this here before. Any new factory, industry or major agri-industry being established should use the best available technology full stop. I think there is an argument for adding the rider "not entailing excessive costs" when we are retro fitting. I would like the Minister's views on this.

We are dealing with two totally different situations. We could put an existing industry, large or small, out of business if we insisted on best available technology with no regard to the costs when installing some environmentally friendly piece of technology that is now demanded by ourselves or by the international community generally. That argument will not apply when a new industry is looking for planning permission, looking for licensing, probably going to a greenfield situation to start up. We have to define the two totally different scenarios and I would like to hear the Minister's views and they should go on the record.

Who will define the concept of "excessive cost" and how will it be defined? Interestingly, BATNEEC as a concept was not included in the Water Pollution (Amendment) Bill when applying to farmers and the environmental improvements demanded of them. The excessive cost was not a consideration. I am not saying that is right or wrong. I am stating it as a fact that we are being inconsistent in terms of our environmental legislation, particularly given farm incomes at the moment. If you relate excessive cost to the profitability of the operation, there would be no environmental protection work done at all by our farmers. Can we pick and choose and decide when it suits us to add the concept of excessive cost to the technology we are demanding of the different sectors, or where is the line drawn in all of this?

Am I right in saying that I may not speak on the Minister's amendment when she puts it? Is that correct?

Acting Chairman

Only the proposer may speak twice. The Senator may speak once.

They are grouped together. May I speak again on amendment No. 7 as it has not been moved at this point?

Acting Chairman

As they are grouped together they should be discussed together with one speaker only, other than the proposer of the amendment.

I just wanted guidance on that. In relation to the Minister's amendment, I welcome it in so far as it does what it is intended to do but it is slightly different from what Senator Ryan's amendment, and indeed the amendments in Senator Naughten's name that have not been moved, tried to do. I welcome the Minister's linking section 108 in terms of not always insisting on BATNEEC for bio-engineering projects of one kind of another. BATNEEC and bio-engineering would be very dangerous bedfellows and I have difficulty in relation to section 108 and why it is tagged on to this legislation at all. A home had to be found for it because of European Directives. Section 108 does not refer to the agency at all whereas section 5 does refer to the concept of BATNEEC as applied to the agency's activities. I am not so sure how an amendment of section 5 will be in order in relation to section 108 which is a totally different area of environmental protection altogether and has no relationship to the agency. I would like that clarified. I assume the Minister is well advised in what she is doing.

I welcome very much the relaxing of the BATNEEC concept as I understand her to be doing in her amendment. I await her explanation, which I still have not had. In amendment No. 7, she is relaxing the BATNEEC concept as it applies to bio-engineering and the handling of genetically modified organisms and that area of research and development generally. The implications for the human race and the environment generally of over-restricting costs and not having sufficient controls in this area are enormous and one could relax controls by crying "excessive costs".

If I understand what the Minister's amendment intends to do I welcome it but I am worried about the connection of section 108 to an amendment in section 5 given that section 108 has nothing to do with the Environmental Protection Agency at all.

My amendment arises from the debate on Committee Stage, the amendment by Senator Brendan Ryan concerning section 5 and, in particular, the criteria to be used by the agency in devising BATNEECs for new activities. There was concern that in determining the particular measures appropriate to such a BATNEEC the obligations on the agency to ensure that any measures it imposes do not entail excessive costs may result in the cost implications associated with the application of a BATNEEC becoming the dominant factor to the extent that the risk of environmental pollution arising may not be accorded sufficient weight. I am satisfied that these fears are groundless because subsection (2) (a) (ii) obliges the agency when drawing up a BATNEEC in respect of a new activity to have regard to the requirement of environmental protection. Also under section 80, the agency may not licence an activity which would breach any air or water quality standard in existance or cause significant environmental pollution.

Central to this Bill is the attempt to achieve a proper balance between the need to protect the environment and the need for economic and social development. The use of BATNEEC is one of the means through which these objectives can be secured. However, to show my good faith in this matter, I have tabled this amendment which specifically provides that environmental protection must receive the proper consideration in determining BATNEECs for new activities.

With regard to Senator Ryan's amendment the parliamentary draftsman has considered the proposed addition contained in these amendments and confirmed that if adopted it would only lead to confusion as to what is entailed. Subsection (1) makes it clear that BATNEEC is used to prevent, limit, eliminate, abate or reduce an emission from an activity. To put in a new clause related to the prevention element would only lead to confusion about what is intended and does not add anything to the requirement of what a BATNEEC is to achieve. It is most important in considering the BATNEEC requirements to have regard to how it is used. In the licensing process it is only one of many matters to be considered by the agency under section 80 and it is the combination of these provisions that will determine the conditions under which a licence can be given. A licence cannot be granted by the agency unless it is satisfied that all of the conditions included in the six paragraphs under subsection (3) are complied with as well as taking into account the requirements of section 80 (2).

The adoption of the amendment proposed by Senator Ryan would blur the clear direction to the agency in section 80 that significantly polluting activities are not to be licensed. There is no question of us allowing a situation to develop where the prevention of significant pollution is to be considered in the context of cost effectiveness in so far as the polluter is concerned. BATNEEC comes into play where emissions exist which do not cause significant pollution but which could be further limited using the best available technology taking account of costs.

In relation to Senator Doyle's query about who will define "excessive costs" that will, of course, be a matter for the agency who I think are the most appropriate body to decide it. The provisions referring to section 108 are being included to strengthen the section because the agency may not be the licensing authority for section 108.

Senator Ryan had two amendments on Committee Stage and, while I am not accepting one of them because I think it would confuse the definition already included in section 5 (1), I believe the second amendment which I am more or less accepting makes it quite clear that we must take into account the implications for environmental protection and we must ensure that the costs have regard to the implications for creating or causing significant environmental pollution. I think it very clearly defines that costs are not to be taken in isolation in respect of the implications as far as the environmental pollution are concerned.

I have to say I am not happy and it is not the first time in my career that I have been unhappy with the parliamentary draftsperson. Section 5 (1) reads "the best available technology not entailing excessive costs to prevent, limit, eliminate, abate or reduce an emission... "It does not say: "the best available technology to prevent an emission". It does not say "the best available technology to limit an emission, to eliminate an emission, to abate an emission." It is a series of alternatives, the least of which is: "or reduce an emission". That is what the best available technology not entailing excessive costs is required to do under subsection (1). Subsection (2) reads:

in the case of an activity other than an established activity—

(i) the current state of technical knowledge,

(ii) the requirements of environmental protection,

Everybody is in favour of the requirements of environmental protection. Nobody is against environmental protection. The point is that as subsection (1) stands all you need is the best available technology to perhaps just reduce an emission. It is a matter of choice by the agency which is necessary.

My amendment, on the other hand, which I introduced on Committee Stage said: "in particular, the need to prevent environmental pollution". In other words, it says that in terms of looking at the definitions of "reduce, limit, abate", for instance, it has kept in mind that its objective is to prevent environmental pollution, not simply to reduce an emission.

The definition as it stands gives a series of alternatives ranging from the magnificently perfect "prevent" to the less than happy reference to "reduce". "Reduce" could be simply reduce from a very unacceptable level to a less unacceptable level. It does not meet the objective which should be to prevent environmental pollution and that is why, at the request of a considerable number of people and on my own initiative ultimately, I suggested the insertion after" circumstances" that the overriding objective of the best available technology not entailing excessive costs must be the need to prevent environmental pollution, not to reduce emissions, not to abate emissions, but to prevent environmental pollution. It gives a series of options. I agree they are somewhat constrained by the later provisions but they are not the same thing.

The second point relates to standards. I have an OECD paper here from the OECD Observer on chemicals, in which is perfectly clear as anybody knows that in respect of huge numbers of chemicals we still do not know whether they are toxic or at what levels they are toxic. We will come back to this on a later amendment. Therefore standards, particularly standards as set in this country, are set for only a limited number of substances. There are thousands and thousands of substances in use and if you were to get into the area of something like an incinerator in operation and products of incomplete combustion you would be into thousands of substances that were not even thought up until you started to run incinerators at high temperatures. You must have an overriding philosophy in this, and it must be the prevention of environmental pollution, not the reduction of emissions, not the sort of strange notion the manager of environmental policy from the IDA has that there is a distinction between contamination and pollution which is a new one in my lexicon.

I cannot accept the parliamentary draftsperson's view that the insertion of my amendment would in any way cause confusion. What it would do would be to make it clear that all these other terms, particularly the reduction of an emission or the limitation of an emission must be seen in the context of the overall need to prevent environmental pollution. Otherwise, it can be according to some other yardstick less than the one which we claim to want, which is to prevent environmental pollution. Therefore, I am not at all happy to withdraw this amendment.

Acting Chairman

Is amendment No. 6 being pressed?

Amendment put.
The Seanad divided: Tá, 18; Níl, 31.

  • Cosgrave, Liam.
  • Doyle, Avril.
  • Harte, John.
  • Hourigan, Richard V.
  • Howard, Michael.
  • Jackman, Mary.
  • Kennedy, Patrick.
  • McDonald, Charlie.
  • McMahon, Larry.
  • Manning, Maurice.
  • Neville, Daniel.
  • Ó Foighil, Pól.
  • O'Reilly, Joe.
  • O'Toole, Joe.
  • Ross, Shane P.N.
  • Ryan, Brendan.
  • Staunton, Myles.
  • Upton, Pat.

Níl

  • Bennett, Olga.
  • Bohan, Eddie.
  • Byrne, Hugh.
  • Byrne, Sean.
  • Cassidy, Donie.
  • Conroy, Richard.
  • Cullen, Martin.
  • Dardis, John.
  • Fallon, Sean.
  • Farrell, Willie.
  • Finneran, Michael.
  • Fitzgerald, Tom.
  • Foley, Denis.
  • Hanafin, Des.
  • Haughey, Seán F.
  • Honan, Tras.
  • Hussey, Thomas.
  • Keogh, Helen.
  • Kiely, Dan.
  • Kiely, Rory.
  • Lanigan, Michael.
  • Lydon, Don.
  • McCarthy, Seán.
  • McGowan, Paddy.
  • Mullooly, Brian.
  • O'Brien, Francis.
  • O'Donovan, Denis A.
  • O'Keeffe, Batt.
  • Ormonde, Donal.
  • Ryan, Eoin David.
  • Wright, G.V.
Tellers: Tá, Senators B. Ryan and Neville; Níl, Senators Wright and Fitzgerald.
Amendment declared lost.
Government amendment No. 7:
In page 11, line 12, after "costs", to insert ", having regard to the risk of significant environmental pollution which, in the opinion of the Agency, or any other licensing authority in relation to section 108, exists".
Amendment agreed to.

I move amendment No. 8:

In page 11, between lines 24 and 25, to insert the following:

"(c) the provisions of paragraph (b) shall only apply for a period of five years from the coming into operation of this section.".

On the question of the best available technology not entailing excessive cost, BATNEEC for short, the Bill makes a distinction between established activity and other activities. Established activity, while I can understand its problems, cannot be allowed to go on for ever not meeting standards. The Minister when I introduced this amendment on Committee Stage, agreed, and I quote "to discuss with my advisers the implications of putting in a time limit". I put down this amendment to make sure we received the fruits of the Minister's discussions with her advisers about a time limit. We cannot have sloppy industries who are, unfortunately, mostly indigenous and many of which are traditional, producing unacceptable standards of emission forever more. There has to be a set period at the end of which all industries will attain the same standards.

There is a danger that subsection (2) (b) could leave us with unacceptable levels of emission for an indefinite period. Many people in this country have suffered appallingly from smells from well-established, traditional industries and it is time we got this sorted out. An industry that cannot clean up its act in terms of the safety and health of its workforce and of the environment is going to end up in a mess anyway. It is possible to run industries cleanly and the obligation to be clean, efficient and safe usually brings in its wake a considerable increase in staff training, industrial productivity, housekeeping, inventory control, in all of those things which ultimately produce, to coin a phrase I would not be associated with, "a learner, fitter industry".

The requirement to meet high levels of environmental standards, as with the requirements to meet high levels of safety, does not put many industries out of business; it actually makes many industries more efficient. I look forward to the Minister's reply.

Acting Chairman

Is amendment No. 8 seconded?

It is formally seconded. Senator Ryan makes a valid point when he seeks to set a time limit before which the existing industries are required to clean up their act. I am not sure whether it should be five years or longer but a definite time limit should be set. In these situations one trades off the consequences of damaging the environment and the implications of such damage for the economy against closing down or restricting an inefficient industry which cannot get its act together and which, in the heel of the hunt, will probably go under.

I support the mover and seconder of this motion; A finite length of time should be specified. Five years may be a little short but I take the point that we have to get on with it quickly and that we have tolerated low standards and sloppy procedures for too long from many industries both foreign and indigenous. If we are to get a name in this country for insisting on standards in relation to industry of all kinds and their operation, cleaning up of the act of existing industries must be given priority.

I am still unclear as to how the concept of BATNEEC is going to be applied to existing industries. Will the costs be considered excessive relative to the annual balance sheet of the company or to the amount of environmental damage that would otherwise be done if such a procedure were not carried out? How will the concept of excessive cost be measured? If a company obviously cannot pay because it is only ticking along, perhaps marginally profitable, and yet if damage is being inflicted on the environment by the company not introducing modern technology of one kind or another, which side will win in that case? Will the company have to retrofit and apply modern technology particularly to incineration or scrubber stacks and so on or can they plead lack of profitability and get away with not applying the technology deemed necessary for the industry which would be demanded if that company were setting up today in a greenfield situation?

I wonder will the "Moneypoints" be able to cry forever that they cannot afford to instal proper scrubbers, etc. because the Irish public cannot afford to have their electricity bills increased by 2 or 4 per cent to pay for what should have been installed when the station was being established? Will we continue to say that our contribution from Moneypoint to the sulphur being deposited in northern Europe is 0.1 per cent so we are only minor contributors to the acid rain problems of northern and central Europe and do not have to update our technology? What is the basis for deciding or measuring what is excessive in terms of cost? How long more will we be able to make an argument for the sloppy standards we have always tolerated as a small poor country which cannot afford to pay, or will we demand the standards that Europe is now insisting upon and that other countries have demanded?

For a long time we have clapped ourselves on the back and heaped words upon words about the tourist potential of our country. We all believe there is a great future in tourism for our country, particularly for activity holidays, because basically we are an unpolluted, environmentally pure country. We say that on the one hand and on the other hand we make excuses and accept sloppy environmental standards, justify marginal activities and do not demand standards which are demanded elsewhere. We need straight thinking and talking on this instead of using one argument when it suits us and another when excessive costs might creep into the issue. I would like clarification in this area regarding existing plants that are not meeting present acceptable standards, which standards may be deemed unacceptable in the next year or two. As standards become stricter we will have to look even more closely at existing industries to see how with retrofitting they may reduce their emission levels to the standards demanded of them.

I await with interest the Minister's response in relation to what the excessive cost factor will be measured against. If a company genuinely cannot pay, what sort of grant aid or grant structures can be put in place so that the standards can be improved in the industry concerned? What procedures will the Environmental Protection Agency use to look at old industries not meeting acceptable standards today?

In response to Senator Doyle's question about BATNEEC and who will decide, this will be a matter to be decided by the agency. It will not be decided on a company by company basis but rather on a sectoral basis; BATNEEC will be prescribed for a sector and all companies within that sector will have to be able to subscribe to the BATNEEC principle, as it were. That may mean, in some cases, that the financial requirements would be too much but it will certainly be a sectoral rather than an individual approach.

The legal people will get individual companies off.

No. BATNEEC will be prescribed by the agency on a sector by sector basis. That is how this principle is applied, not only here but elsewhere.

In relation to the amendment moved by Senator Ryan and the discussion we had on Committee Stage, I am anxious that as soon as possible all existing activities under the First Schedule would be licensed and monitored by the agency. Senator Ryan and other Senators both today and on the last Stage made the point that in many cases existing older activities cause most of the problems rather than newer industries where the standards and technology seem to be higher. I am still examining the implications for different sectors of improving a specific time limit and I have not finalised my investigation in relation to this matter. I am weighing up the financial costs for individual plant and activities or industries and the economic cost and what might be a reasonable time period. I am going to have to leave this matter to the debate in the other House because I was not in a position to finalise my investigations.

I have one problem about the amendment that is proposed here: if BATNEEC is to apply to all existing activities within five years new activities licensed by the Agency, who have put in the best available technology and so on and are operating to a high standard, regardless of the environmental implications, would have to change their technology within a period as short as four or five years when their licence was reviewed, because the best available technology would obviously have improved in the intervening period. There is certainly a problem about applying a time limit to the concept of the best available technology being applied to existing activities. All new activities will be existing activities within that period and therefore when their licences are reviewed, even though they are relatively new, they would have to totally update their technology which would be unreasonable.

In relation to BATNEEC it is important to remember that that is only one of six criteria that the agency will have to enforce when they are deciding on a licence application. It is not a matter of give a licence and apply BATNEEC. That is merely one aspect covered in section 80. Many of the points raised by the Senators are covered adequately under the six provisions listed under section 80 of the Bill in relation to the licensing operation.

I am not in a position to accept this amendment and I understand that there is no country where new arrangements of this kind are applied across the board to existing activities. It is not contained in the European Directives, nor does it apply in the industrial plant directive or whatever because of the serious implications of applying it broadly across the board. I hope Senators will accept my bona fides in that I am still examining this matter and I am sorry I was not in a position to conclude my examination. This matter and the relationship between licensing and the planning system are two matters that I am going to have to leave over to the other House because of the time factor involved and because of the huge implications in trying to finalise the arrangements in relation to them. Obviously a Bill of this size is going to come back to this House in any event; it is unlikely that a Bill of this complexity will go through the other House without amendment. It is not a matter of trying to get away from the subject without the intention of coming back again to discuss it and other matters.

Since my amendment mentions a period of years and since I would not dream of being dogmatic about it, I could not have insisted on this amendment because I would not argue about whether the period should be four, five or six years. When one realises how little we know, particularly in the area of chemicals, we cannot allow a perpetual time lag to contnue. We have had this until now and from the ESB we have had quite distorted publicity in which they suggested that the entire capital cost of retro-fitting sulphur dioxide scrubbers at Moneypoint would have to be carried in one year's electricity bills. If they were to tell us that the entire capital costs of the generating programme were to be charged on one year's electricity bills we would have some astronomical figure. It was quite misleading of them to suggest that the whole £400 million would be slapped on everybody's ESB bills next Monday to be paid for over a year or a month or six months.

It is inadequate to say that we only produce a tiny per cent of European sulpher dioxide; we probably produce as much as anybody else and probably in five year's time when others have imposed more stringent standards we will produce more per head than anybody else, so there is a need to impose restrictions now. The evidence is that with the exception of a move to a completely unregulated Third World country, there is no real premium for the chemical industry to move from one OECD or EC country or any of the major developed nations to another because of differing environmental standards. It is a game they play to persuade Governments not to regulate them excessively but large sections of the chemical and pharmaceutical industry are so profitable that the difference in standards imposed between one country and another is not going to be a major deterrent to investment. To suggest that our insisting on the highest possible standards would deter industries from coming here is a story they would love to put about, but it is not true. Sections of industry wear two hats; with one hat they say they are prepared to do everything necessary to meet the highest possible international standards and with the other hat on they say that facilities such as the planning appeal procedure which is part of any civilised legislation should be severely restricted.

I am happy to withdraw the amendment and to leave it to the undoubted good will of the Minister to deal with this issue and we can discuss it when the inevitable amendments come back from the other House, though they will hardly be able to surpass our wisdom, I suspect.

Amendment, by leave, withdrawn,
Amendment No. 9 not moved.

Acting Chairman

Amendments Nos. 10, 59 and 60 are related and may be discussed together. I will call on Senator Ryan to move his amendment. Amendment No. 59 is a Government amendment and therefore, may be moved from the Chair or by the Minister or by the Leader of the House. Amendment No. 60 is in the name of Senator Doyle. If her amendment is being pressed, the Chair will ask her to move her amendment. Otherwise I am taking it as being discussed.

I move amendment No. 10:

In page 11, line 31, after "specifications." to insert "In making such specifications the Agency shall have as it sees fit and at its absolute discretion regard to the need for an effective precautionary approach to safeguard the environment where the Agency has reason to believe that damage or harmful effects are likely to be caused although no definite scientific proof of such effects exist.".

In the interests of moving through the business fairly quickly and given that the Minister's amendment is a reasonable attempt to meet our requirements, I would like to withdraw my amendment and leave it to the Minister to move her amendment. There is no point having a long discussion on something we all agree.

I thank the Senators. There is no need to waste time speaking to my amendment No. 59 if it is generally acceptable. I know it was the intention of Senators on all sides to have the principle of the precautionary principle written into the legislation. It will apply now in relation to the carrying out by the agency of all its functions. That is a good thing.

I welcome the Minister's amendment and thank her for taking our points on board.

Amendment, by leave, withdrawn.
Amendment No. 11 not moved.
Government amendment No. 12:
In page 11, line 41, to delete "and to An Bord Pleanála" and substitute ", An Bord Pleanála and such other bodies, if any, as may be prescribed".

This amendment gives effect to the intent of amendments proposed on Committee Stage. It enables the Minister to prescribe bodies, other than An Bord Pleanála, which must be circulated with BATNEECs issued by the agency. These could include such bodies as are prescribed under the planning legislation for example. This point was made by Senators O'Toole, Doyle, Ryan and others on Committee Stage.

I would like to put on record my appreciation of the way it has been dealt with. It is effective and I have no problem supporting it.

Amendment agreed to.

Acting Chairman

Due to a printer's error amendment No. 16 is numbered No. 15 on the list of amendments. Amendments Nos. 13 and 16 and amendments Nos. 79 and 105, which are consequential on amendment No. 16 may be discussed together.

I move amendment No. 13:

In page 13, between lines 26 and 27, to insert the following:

"(4) Where a person has been convicted of an offence under this Act the court may order that person to remedy (or pay for the remedying of) any damage caused to the environment by the offence.".

I am just checking the exact relationship between my amendment and amendments Nos. 16, 79 and 105. The principle in amendment No. 13 is quite obvious. In relation to environmental pollution or destruction of the environment, those of us with an interest in this area over the years have been preaching the principle of "the polluter pays". My amendment attempts to nail that principle into the legislation before us.

Section 9 of the Bill deals reasonably adequately with penalties, but penalties in themselves will not restore a river that has been polluted, advertently or inadvertently, by the discharge of some substance into it that has caused major damage to the river and to the life therein. I do not think there is really any need for me to develop the point I am making at length but I feel very strongly that the "polluter pays" principle must be nailed into this legislation. I wait with interest to hear the Minister's response. May I reserve the right to come back after the Minister has spoken on her amendment before I respond to my own amendment? Perhaps we could take the substance of all of these amendments together and perhaps I will be satisfied at that stage.

Acting Chairman

All the amendments are being discussed together. This leaves you one opportunity to come back.

My amendments arise from a commitment I gave on Committee Stage to come back on Report Stage with regard to empowering the courts to oblige a polluter to remedy the damage caused by his or her pollution and also in relation to civil liability arising from pollution. There are already adequate provisions of this nature in the legislation governing water pollution and any powers under that legislation can be transferred to the agency by virtue of section 97 of this Bill. I consider that if a similar power is to be provided in relation to air pollution or waste, the power should be included in the basic legislation in relation to all activities and not just those for which the agency will be responsible.

While there are already considerable remedies provided in the Air Pollution Act, 1987 in relation to air pollution, I have decided to amend it to incorporate similar provisions to those in the water pollution legislation in relation to civil liability and to remedying damage. The amendments I am proposing will provide for the inclusion of these provisions in the Air Pollution Act. The agency can be given any powers necessary under the Air Pollution Act by virtue of the provisions of section 98 of this Bill. The amendment to section 80 (7) of the Bill is necessary to ensure that persons complying with an Environmental Protection Agency licence are not open to proceedings under the new section which my amendment inserts into the Air Polution Act.

As Senators are aware, a comprehensive Waste Bill is in preparation in my Department. That Bill will be the appropriate place for bringing forward any necessary provisions in relation to remedying damages for civil liability in relation to waste. In that connection also, provision will be made to ensure the agency can be given any appropriate powers included in the Waste Bill.

I believe the principles I have outlined, of making appropriate provisions in the basic environmental legislation as to remedying damage by polluters, are the correct ones and will deal with the issues raised on Committee Stage. For this reason Senators Doyle and Naughten's amendments are inappropriate and for the same reason, the proposed amendments to the Air Pollution Act are, therefore, appropriate.

I am quite happy to withdraw my amendment in view of what the Minister has said. I thank her for taking on board the points we made on Committee Stage in relation to the "polluter pays" principle and underlining it by the changes she has made. I support them fully.

Amendment, by leave, withdrawn.
Amendment No. 14 not moved.

An Leas-Chathaoirleach

Due to a printer's error, amendment No. 14 in the name of Senator Ryan is incorrectly numbered. It should be No. 15.

I move amendment No. 15:

In page 16, to delete lines 13 to 18.

In a time when discussion in many areas is about product liability and when consulting engineers and people who give professional advice are beginning to realise that the incorrectness of their advice, particularly where negligence can be demonstrated, may result in legal proceedings against them, I find it astonishing that we could have a section in this Bill which says:

No action or other proceedings shall lie or be maintainable against the Agency or any body referred to in section 43 or 44 for the recovery of damages in respect of an injury to persons, damage to property or other loss alleged to have been caused or contributed to by a failure to perform or to comply with any of the functions conferred on the said Agency or body.

All I want to ask is, why? I am quite prepared to accept that, if the agency does its best with goodwill and with reasonable bona fides, then, it cannot be blamed for the unforeseen consequences of the fact that, as the OECD will say, the toxicity of thousands of chemicals is not clearly known or understood. However, to suggest that there should be a blanket immunity for the agency irrespective of what it does, irrespective of its own incompetence or otherwise, seems to me to be going too far in the direction of protecting them from normal redress. If the Environmental Protection Agency makes a fundamental blunder and, as a result, people suffer, I cannot understand why they should not have to face the consequences of that blunder if it is a result of negligence. If a member of the medical profession, a consulting engineer or anybody else acting in a professional capacity, gives somebody advice which turns out to be the wrong advice and if there is a case which suggests that they are negligent in that advice, in other words, that they did not show a proper standard of professional expertise or knowledge, then they can be held legally liable for it. I do not understand why the agency cannot have a similar liability.

This section provides that the agency will be immune from any legal proceedings for recovery of damages arising from a failure to perform its functions. It does not give immunity against negligent performance of functions. Similar immunity is granted to any other bodies, such as the local authority or other public authority, when providing services under sections 43 and 44. This proposal is not unique as there is a similar provision in the Safety, Health and Welfare at Work Act, 1989.

The range of functions under the Bill is so broad that, if the immunity from legal action as a result of a failure to perform a function provided for in this section were not included, it would leave the agency, or bodies acting on its behalf, exposed to a succession of law suits which could be damaging, and not only financially. It would also affect, adversely, both the ability of the agency to carry out its functions and the credibility and standing of the agency and the other bodies involved. Without this provision, the agency could easily become the fall guy where serious pollution occurs, given the doctrine of joint and several liability which applies in Irish law.

If this section were to be deleted it would mean, for example, that if a company licensed by the agency were to fail in some way to do what it was required to do, the agency could be joined in any legal suit against that licensed body or activity. That would be unfair. It would be making the agency responsible for things it had no responsibility for. It would be unfair and damaging both to the credibility of the agency and to any body or group of people working on behalf of the agency. It does not mean that the agency cannot be sued if it is negligent or if it performs its functions in a negligent fashion. That is different. Obviously, one would not want to see immunity from that, but it does mean that the agency should not and cannot be joined in a law suit for something for which it cannot or could not have responsibility.

The fact that this provision exists elsewhere does not impress me in the least. The Minister discussed the broad issue arising if the agency did not do some of the things it was supposed to do. Either it has a legal obligation to do them or it has not. If it has a legal obligation to do something then it should do it or take the consequences. It should not have any discretion. We are not talking about negligence. The Minister said the agency had many functions and if it did not do something it was supposed to do, then it could be sued. I do not see why this should not be so.

The question of where it issues a licence and what will happen if the industry does not meet the standards of that licence could be dealt with by a specific provision. It would be reasonable to argue that the agency had met its legal obligation by issuing a licence which was of an acceptable standard and which was based on BATNEEC. To suggest that, because there is a possibility that it might not do something it is legally obliged to do we should give it an immunity from prosecution and an immunity from suit, seems to me to be meaningless. It is the classic way in which we, in this country, protect the State from the consequences of legal obligations other people have to carry.

Let me remind the Minister that the fact that I may not be aware of my legal obligations in any area, and may not therefore fulfil them, does not make me immune from the due process of law. I am expected to meet all the standards in every area that the law sets down. If I did not know about them or forgot about them or did not get around to meeting them, I would not be excused. I would still be liable. If I forget to tax my car for two months I can be prosecuted, although it does not cause any threat to anybody, and is not a criminal offence. The fact that I have a hundred other things to do, that I spend two days a week in Dublin and that I am very busy, does not give me the least excuse for not doing it.

While I am not going to push this amendment to a division, the justification the Minister gave for this section is far from convincing. It should be possible to write a section which would make it clear that other people's actions could not be the basis for suing the agency. That is not the same as giving the agency a blanket exemption which says that, if it does nothing in many areas, nobody can take any action against it. That is effectively what the section says.

I know there are similar provisions in other legislation; perhaps it is a standard section that goes into many Bills but that is no reason for having it here. In fact it is a reason for taking it out. It is not justifiable in common sense or in my layman's knowledge of the law. It should be possible to draft a section which ensures the agency will not be prosecuted or sued for other people's failures to do things the agency tells them to do. It should not be possible for the agency to fail to do things because of lack of resources, time or inclination, and then say "we cannot be sued". I do not regard that as logical or rational. Having said that, because I do not want to delay the House unnecessarily, I do not propose to push the amendment to a division.

Amendment, by leave, withdrawn.
Government amendment No. 16:
In page 16, to delete lines 30 to 45 and substitute the following:
18.—(1) Section 51 of the Act of 1963 is hereby repealed.
(2) The Air Pollution Act, 1987, is hereby amended as provided for in the Third Schedule.".
Amendment agreed to.
Amendment No. 17 not moved.

An Leas-Chathaoirleach

Amendments No. 33 is consequential on amendment No. 18. They may be discussed together.

I move amendment No. 18:

In page 17, line 28, to delete "committee" and substitute "selection committee".

With regard to the drafting merits of the amendment to section 21, I have been advised by the parliamentary draftsperson that the amendment is unnecessary. The amendment adds nothing to the Bill and the wording is inadequate to meet the intentions. A number of consequential amendments would have to be made if it were to be accepted.

Amendment, by leave, withdrawn.

An Leas-Chathaoirleach

Amendment No. 19. Amendment No. 20 is an alternative. They may be discussed together.

I move amendment No. 19:

In page 17, to delete lines 33 and 34 and substitute the following:

"(d) the Chairman of the Confederation of Irish Industries.".

We discussed this amendment and others in some detail. It concerns the overall composition of the committee referred to in section 21. I retabled this amendment to make a point. The list before us consisting of the Secretary to the Government, the Secretary of the Department of the Environment, the chairperson of the Council of An Taisce, the managing director of the IDA, the general secretary of the Irish Congress of Trade Unions and the chief executive of the Council of Status of Women could be improved. The chairman of the Confederation of Irish Industries would be a very worthy addition to the committee, instead of the managing director of the IDA or with him, depending on the Minister's preference. I would like to see a strong voice of private industry represented, for balance. That sector is extremely keen to be on the right side of all environmental protection arguments. They are the people who need to be at the table. They really need to listen and offer their opinion.

If the Minister would suggest an alternative to the chairman of the Confederation of Irish Industries I would certainly listen, but I feel, at the moment, the balance as listed in the Bill is not correct and I would urge the Minister to consider my amendment favourably.

I second the amendment.

I have an amendment of my own, but Senator Doyle's amendment makes great sense and is probably better than mine. As it stands, this committee consists of the Secretary of the Government who is appointed by the Government; the Secretary of the Department of the Environment, who is appointed by the Government; the managing director of the IDA who is appointed by the Government, and the chief executive of the Council for the Status of Women, who is indirectly, if not directly — I am not suggesting any impropriety — connected with the Government——

She is a woman anyway.

Senator Murphy is off on his favourite hobby horse now. A Leas-Cathaoirligh, you will have to protect me from him.

An Leas-Chathaoirleach

You can be assured, Senator, of the protection of the Chair.

I am very grateful to you a Leas-Chathaoirligh, as I feel really threatened when he gets on his hobby horse. He can become rather irresistible in his urges.

It must be admitted that the reason she is there is that she is a woman.

An Leas-Chathaoirleach

I would ask the Senator to speak to the amendment.

Nothing could be more irrational.

The position of the managing director of the IDA is anomalous. There is a considerable need to have a representative of industry on this committee. I am quite happy about that. Many of the environmental lobbyists would argue that not only should there be representatives of industry but also a representative of agriculture so that the person appointed would be seen to have the support of a broad range of the interests that are affected by this legislation. The logic of including the managing director of the IDA escapes me. In our society, the IDA is a major player, which defends its own patch and its own areas of activity with considerable vigour. It may well have lobbied very effectively to have itself parachuted in here.

I have a small excerpt from The Irish Times of 21 June. The headline is “Perception of some industries `misguided”'. It is a report of remarks by the IDA's environmental affairs manager who, I presume, articulates IDA policy on the area. He says, for example:

From the IDA's point of view we expect industry to meet the highest international standards.

They do not, of course; they expect them to meet our standards, or indeed EC standards, not necessarily the highest international standards and for this reason we welcome the introduction of new legislation setting out their responsibilities. Modern industry, and particularly pharmaceutical and chemical companies were more than willing to design and build plants to accommodate any environmental regulations. What they found difficult to live with is the moving goal post scenario where additional and often substantially modified conditions are imposed, usually after an appeal has been made.

That seems to me to be the IDA affirming its belief that planning appeals are a bad thing, something the former managing director has been known to say. But then it goes on, and this is what I find absolutely breathtaking: "Much of the contamination of the environment"— I love this word, it is a new word —"caused by industry was unavoidable and as long as man wished to eat and breathe he would continue to unavoidably contaminate his environment. But this unavoidable contamination is not pollution. The environment always has been and always will be capable of absorbing it". That particular view of environmental pollution is about 25 years out of date.

The problem is that this planet has far exceeded its capacity to absorb what this person calls contamination. We cannot do it, which is why the chemical industry is moving towards clean technology, zero emissions, waste minimalisations, etc, The industry acknowledges what, apparently, the IDA do not acknowledge: that the capacity of this planet to absorb what this man called contamination has been far exceeded and we have to stop. The point is that this is the view of the IDA. It is a protagonist with a far lesser degree of sophistication than that of industry, for instance. It is not so long since the Federation of the Irish Chemical Industries had to dissociate itself from remarks by the previous managing director of the IDA about interest groups and environmental movements.

It seems to me that there is an overwhelming case for taking the IDA out of this arena, as Senator Doyle has said. I would be quite happy to withdraw my own amendment in favour of hers except that I am afraid the term should be the president of the CII, rather than the chairman or chairperson, or perhaps the director general. We can discuss that with the Minister.

The IDA is a singularly inappropriate body to have represented on this committee. It is not an environmentally expert body. It does not represent any large interest other than that of one State agency. It does not speak for industry, as industry will tell you very quickly. It is an anomaly to include the IDA. The Irish Congress of Trade Unions represents the interests of those who work in industry. An Taisce, perhaps excessively conservatively, represents nevertheless, the interests of the environment. The Government have a considerable interest. There is particularly good reason, given the loaded dice that women have to deal with, for having the chief executive of the Council for the Status of Women there — to remind what might be an exclusively male interview panel the subtle ways men have of excluding women will not be allowed to operate in this area. I say that to make sure that Senator Murphy does not think he has a monopoly on views on that issue.

I cannot see, and never could, the logic or the rationale of having the managing director of the IDA included, other than the perpetual insistence of the IDA to expand its brief to become a bigger and bigger player in Irish society. That is a tendency which, in my own view, ought to be kept firmly under control. What I propose to do, with your permission, a Leas-Chathaoirligh, is to withdraw my amendment and support Senator Doyle's amendment.

In view of what Senator Ryan has just said — that he is withdrawing his own amendment and is supporting Senator Doyle's — I too support Senator Doyle's amendment.

The balance in the composition of this committee is quite wrong. It is loaded too much on the side of statutory bodies, Government Departments, etc. I do not believe that the IDA has a proper role in this matter. The IDA has a specific job, a specific function which it is always under pressure from the Government to perform — to produce more jobs. It used to be "jobs at any price". That is probably not quite fair any longer, but it is still valid to a certain extent. I do not believe the IDA has a strong conservation or environmental element in its composition which would, in that way, give a balanced input into this committee. I would wholeheartedly support the deletion of the managing director of the IDA from this committee and support Senator Doyle's substitution of the chairman of the Confederation of Irish Industry.

First, I think it is unusual that Senator Ryan, who wished to delete totally the reference to any representative of industry, now merely wants to substitute——

I am reluctant to interrupt but the IDA does not represent industry and does not speak for industry.

I gave very careful consideration, when I was deciding on what group should be represented on the selection committee, to the fact that it is important that the agency, when established, have the greatest possible level of support within the country and be acceptable to the widest possible number of people. It must be perceived to have balance, to be progressive and so on and not in any way perceived to be anti-development or anti-industry. Therefore, since the agency would be licensing and monitoring a huge number of industrial activities I felt it was appropriate that a representative of industry would be involved at the selection procedure stage. Many representations were received. The Federation of Irish Chemical Industries felt that probably all the industries covered by their federation, or certainly a substantial number of them, would be licensed and monitored by the agency and that they should be the group on the selection committee. The IFA and the farming sector believe they should be involved because agriculture and agri-business will be licensed and monitored by the agency and the same applies to the Confederation of Irish Industry.

There are so many groups representing industry in its sectoral sense that it became impossible, quite honestly, to choose between them unless one was to have more than one representative industry. Then we would have a selection committee which would be unwieldy because we would have to balance it with additional people from the environmental sector. Therefore, I felt in all the circumstances that the Industrial Development Authority are the Authority responsible for industrial development in Ireland. They are a cross-sectoral organisation in that they are responsible for industrial development activity in the agri-food sector and the agri-business sector, in the chemical and pharmaceutical sector and in industry generally.

Many points were made by Senators in relation to the environmental attitude of the IDA. It is particularly important in the context of future development — whatever about past developments — that the IDA recognise the huge environmental asset of our clean environment and that industry is promoted and encouraged here on the basis of being environmental friendly. It is also important that the IDA take on the environmental agenda and that it becomes part of their job and, equally, that they become involved in the whole environmental protection debate. It will be good for the IDA and for the environment to have that Authority involved in the selection procedure of the new Environmental Protection Agency. I believe that in seeking to encourage industry here and in promoting this country as a place suitable for industrial development, the IDA will be very much aware of their environmental responsibilities because their chief executive will be part and parcel of the group selecting the new agency.

In all the circumstances and trying, as we were, to get a balance and have a group that would reflect the community at large — I will not go into the merits or otherwise of having a chairperson of the Commission for the Status of Women there because I do not want to open up that whole debate again — I believe the selection committee is very broad based. It is very representative and that is important. The board of the agency will essentially comprise people with environmental or scientific expertise, who are capable of issuing licences, of monitoring the very strict conditions attached, of dealing with very technical, industrial processes and so on. They will be very much a committee selecting professionals, they will not be a committee selecting environmentalists. Obviously they will use in their recruiting procedure the assistance of professional recruiting companies and so on to help them in that task. It will be difficult to get the kind of balance required to do the very comprehensive job being given to this agency.

I believe in all the circumstances, with all the representations and the lobbying to have different groups represented, that we have got the balance right. Those with whom I have argued on the environmental side generally have accepted that, although they may have some misgivings. The same applies to industry. Obviously, everybody would prefer to be the person or group chosen but, on balance, most people with whom I have discussed this are happy that we have a good balance and that is what is important.

I believe the committee will act very much as a group, that they will come together and be dynamic within that committee in the task that has ben given to them. In the circumstances, it would be inappropriate to start changing the proposed selection committee now. It would again bring back the lobbying in favour of the different sectoral interests to which I referred on Committee Stage. Therefore, I regret I am not in a position to accept this amendment.

I very much regret the Minister's response to the amendment before her. I ask her to cast her eye again on the list of the committee as set out in section 21. The private sector is not represented at all, the sector who will have to put its money where its mouth is and the sector we will be looking at to invest and create jobs in industries throughout the country. Apart from the chairperson of An Taisce — and that will be an individual representing An Taisce who could not be said to represent private sectoral interests in relation to industry and, indeed, the chief executive of the Council for the Status of Women and we know who their present incumbent is but we really do not know who will hold that position in future years — one cannot say that the private sector is represented at all.

The private sector — dare I say it — probably causes the greatest problem in this whole area. It is essential that the sector is tied in, that their representative, whether president, chairman or chief executive officer or whatever the correct title of the head of the CII is represented on this committee. The CII can represent the chemical industries and the various other groups under their umbrella. I have no difficulty or concern about one group or another being appointed provided the boss of the umbrella body representing industry in Ireland who put their money where their mouth is is represented. There is the Secretary of the Government, the Secretary of the Department of the Environment, the IDA, ICTU, the Council for the Status of Women and An Taisce, which, if you like, are in the private sector but they are not putting money into industry. None of these sectors represent industrial investment in our country the type of sector we need to get round the table and to ensure that they are on side. They are the type of industry attracted to this country, and that policy generally will suit environmental protection policy.

I feel very strongly that there will be a huge omission on the committee as long as the chairman or the president of the CII is not represented. I do not mind whether the Minister adds that person to the list or substitutes the president of the CII for the managing director of the IDA. I will not fall out with her on that; I will not quibble if she feels it is important to keep the IDA at the table. However, it is essential that private sectoral interests are represented and that the sector we will look to for most of the investment in our country to create sustainable jobs, jobs that will respect the environment in which they are located, is around the table as a member of that committee. I urge the Minister to reconsider this matter.

Question put: "That the words proposed to be deleted stand".
The Seanad divided: Tá, 31; Níl 16.

  • Bennett, Olga.
  • Bohan, Eddie.
  • Byrne, Hugh.
  • Byrne, Sean.
  • Cassidy, Donie.
  • Cullen, Martin.
  • Dardis, John.
  • Fallon, Sean.
  • Farrell, Willie.
  • Finneran, Michael.
  • Fitzgerald, Tom.
  • Foley, Denis.
  • Hanafin, Des.
  • Haughey, Seán F.
  • Honan, Tras.
  • Hussey, Thomas.
  • Keogh, Helen.
  • Kiely, Dan.
  • Kiely, Rory.
  • Lanigan, Michael.
  • Lydon, Don.
  • McCarthy, Seán.
  • McGowan, Paddy.
  • Mullooly, Brian.
  • O'Brien, Francis.
  • O'Donovan, Denis A.
  • O'Keeffe, Batt.
  • O'Toole, Joe.
  • Ormonde, Donal.
  • Ryan, Eoin David.
  • Wright, G.V.

Níl

  • Doyle, Avril.
  • Harte, John.
  • Hederman, Carmencita.
  • Hourigan, Richard V.
  • Howard, Michael.
  • Jackman, Mary.
  • Kennedy, Patrick.
  • McDonald, Charlie.
  • McMahon, Larry.
  • Manning, Maurice.
  • Neville, Daniel.
  • Ó Foighil, Pól.
  • Ross, Shane P.N.
  • Ryan, Brendan.
  • Staunton, Myles.
  • Upton, Pat.
Tellers: Tá, Senators Wright and Fitzgerald. Níl, Senator Neville and Hourigan
Question declared carried.
Amendment declared lost.
Amendments Nos. 20 and 21 not moved.

An Leas-Chathaoirleach

Amendments Nos. 22 and 25 are related, amendments Nos. 22, 24 and 26 are consequential on amendment No. 25 and all may be discussed together.

Government amendment No. 22:
In page 17, lines 38 and 39, to delete "subsection (7) or (9)" and substitute "subsection (7), (9) or (10)".

This amendment is a rewording of the text of subsection (9) which was found to be confusing on Committee Stage. The content of the amendment is the same as subsection (9) but it will be somewhat easier to understand. In particular, a case was made in relation to the wording in the Bill by Senators O'Toole and Doyle. Therefore, I am happy to bring forward these amendments which I hope will make the matter much clearer.

Amendment agreed to.
Government amendment No. 23:
In page 18, line 6, to delete "another person" and substitute "in the case of—
(i) the Secretary of the Government, some other officer of the Department of the Taoiseach,
(ii) the Secretary of the Department of the Environment, some other officer of the Department of the Environment,
(iii) in any other case, some other person from the organisation or body referred to in subsection (2) to which the person referred to at paragraph (a) or (b) belongs,".
Amendment agreed to.
Government amendment No. 24:
In page 18, line 10, to delete "subsection (7) or (9)" and substitute "subsection (7), (9) or (10)".
Amendment agreed to.
Government amendment No. 25:
In page 18, to delete lines 42 to 48 and in page 19, to delete lines 1 to 13 and substitute the following:
"(9) Notwithstanding subsection (7) or (8), if the Government decide not to appoint to be the Director General any of the candidates or, as the case may be, the candidate selected by the committee pursuant to a particular request—
(a) the Government shall appoint a person to be the Director General who was among those or, as the case may be, was the candidate, selected by the committee pursuant to a previous request (if any) in relation to that appointment, or
(b) the Minister shall make a further such request to the committee and the Government shall appoint to be the Director General a person who was among the candidates or, as the case may be, was the candidate selected by the committee pursuant to that request or pursuant to another such request made in relation to that appointment.
(10) Notwithstanding subsection (7) or (8), if the committee is unable to select any suitable candidate pursuant to a particular request—
(a) the Government shall appoint a person to be the Director General who was among those or, as the case may be, was the candidate, selected by the committee pursuant to a previous request (if any) in relation to that appointment, or
(b) the Minister shall make a further such request to the committee and the Government shall appoint to be the Director General a person who was among the candidates or, as the case may be, was the candidate selected by the committee pursuant to that request or pursuant to another such request made in relation to that appointment.".
Amendment agreed to.
Government amendment No. 26:
In page 19, line 16, to delete "subsection (7) or (9)" and substitute "subsection (7), (9) or (10)".
Amendment agreed to.
Government amendment No. 27:
In page 22, line 19, to delete "be chairman of" and substitute "chair".
Amendment agreed to.
Government amendment No. 28:
In page 22, line 24, to delete "be chairman of" and substitute "chair".
Amendment agreed to.
Government amendment No. 29:
In page 22, line 27, to delete "be chairman of" and substitute "chair".
Amendment agreed to.
Government amendment No. 30:
In page 22, line 30, after "divided" to insert "and there are more than two directors present".

I compliment the Minister for a very simple drafting which ensures that we will not have the casting vote being effectively a one person rule. I thank the Minister for that. We had a long discussion on it and I am glad she has done that.

Amendment agreed to.
Government amendment No. 31:
In page 22, line 30, to delete "who is chairman of" and substitute "chairing".
Amendment agreed to.

I move amendment No. 32:

In page 22, line 45, to delete "two" and substitute "three".

Am I right in assuming that there is no need to make this amendment given amendment No. 30 tabled by the Minister? I thank the Minister for taking on board the substance of our amendment. Many Senators made that point on Committee Stage. I welcome the Minister's amendment and withdraw amendment No. 32.

Amendment, by leave, withdrawn.
Amendment No. 33 not moved.
Government amendment No. 34:
In page 23, line 15, to delete "twelve" and substitute "nine".

In response to amendments from a number of Senators on Committee Stage which sought to reduce the interim term of directors to six months, I undertook to introduce an amendment on Report Stage to reduce the period to nine months. The amendment meets the Senators' concern half way and I believe that the maximum term of nine months will allow the Minister the flexibility necessary to deal with vacancies on the board of the agency while meeting the concerns of Senators who fear that the interim director provision could be abused by the Minister.

Amendment agreed to.
Government amendment No. 35:
In page 23, line 20, after "not" to insert "less than five and not".

This amendment is similar to the last amendment. I undertook on Committee Stage to introduce an amendment which ensures that there is a maximum number on the advisory committee and this amendment requires a minimum number of five. I expect that all 12 members will be appointed but the minimum now proposed takes account of the concerns expressed by Senators on Committee Stage.

Amendment agreed to.
Government amendment No. 36:
In page 23, to delete lines 21 to 26 and substitute the following:
"(3) (a) The Director General, or the Deputy Director General if and for so long as the Director General is not present or if the office of the Director General is vacant, shall, ex officio, be a member and shall chair the meetings of the Advisory Committee.
(b) In the event of the offices of Director General and Deputy Director General being vacant the Minister shall designate one of the other directors of the Agency to be a member of the Advisory Committee and to chair its meetings until either the Director General or the Deputy Director General is appointed.".

This amendment fulfils a commitment given on Committee Stage to adopt the substance of a Fine Gael amendment to this effect. The amendment provides that the deputy director general shall, ex officio, substitute for the director general as chairperson of the advisory committee when the director general is not present. The Minister's power to nominate a substitute chairperson will now only arise where the posts of director general and deputy director general become vacant, an occurrence which will be extremely rare. My amendments fulfil the intent of earlier amendments tabled by Senators Doyle and Naughten.

I thank the Minister for taking on board the points made on Committee Stage and I welcome the amendment.

Amendment agreed to.

Acting Chairman (Mr. Farrell)

Amendments Nos. 37, 38 and 39 cannot be moved.

Why not? Could I have an explanation why the Minister who, I think, indicated on Committee Stage she was sympathetic to the point those amendments were making, has not been in a position to take them on board?

Acting Chairman

As amendment No. 36 was agreed, amendments Nos. 37, 38 and 39 cannot be moved.

If we delete lines 21 to 26 and insert something else we cannot amend line 22 as it previously existed.

We have substituted "Chair" for all those references.

Amendments Nos. 37 to 40, inclusive, not moved.
Government amendment No. 41:
In page 25, to delete lines 13 to 16 and substitute the following:
"performing his duties or for stated misbehaviour or his removal appears to the Minister to be necessary or desirable for the effective performance by the Advisory Committee of its functions.".

This amendment derives from a commitment I gave on Committee Stage to re-examine the wording of section 27 (16). It will meet what I feel is an unjustified concern, that is to say, that advisory committee members could be removed for criticising the agency. This was never the intention and this amendment ensures that a committee member may only be removed where it is necessary or desirable for the effective performance by the committee of its functions and not by the agency as is the subsection present.

The second amendment substitutes the phrase "for stated misbehaviour" instead of "has committed stated misbehaviour" so as to bring the wording of the subsection into line with similar subsections in sections 21 and 24.

Amendment agreed to.

Acting Chairman

Amendments Nos. 42, 43, 44 and 48 are related and may be discussed together.

I move amendment No. 42:

In page 26, line 41, after "request" to insert "after consultation with the employee/employees involved".

I am happy to move this amendment but I will not be pressing it because the Minister's amendment, which is coupled with ours, effectively takes on board the point I was making in discussing section 30 on Committee Stage. I would like to thank the Minister, because I felt very strongly at the time that without including the concept of consent and consultation with the employee and his or union representation there could be a situation where people could find themselves working for a different sector in the public service. I have no doubt what this was intended to do: it was really to facilitate Joe Rea and the hiving off of perhaps Johnstown Castle to the Environmental Protection Agency. I am quite sure that the employees down there would not object to it but the principle of consent of the employees who have given good and loyal service to a sector of the public service for many years should be nailed into the legislation. That is what my amendment intended to do and indeed the Minister's amendment does it even better. I am happy not to press my amendment and I will support the Minister's amendment, which is very welcome.

Amendment, by leave, withdrawn.
Amendment No. 43 not moved.
Government amendment No. 44:
In page 26, between lines 44 and 45, to insert the following:
"(3) A public authority shall not designate an employee under subsection (1) or (2), without having notified in writing the employee and any recognised trade unions or staff associations concerned, of its intention to do so and considered any representations made by him, or by them or by any of them, in relation to the matter within such time as may be specified in the notification.".

This amendment arises as a result of discussions on Committee Stage. Senators Doyle, Naughten and O'Toole have put down amendments requiring consultations by a public authority with its staff or other representatives where employees were being designated for employment by the agency. As I pointed out at the time, section 31 contained provisions to ensure that tenure, pay and terms and conditions of service for such employees will not be less favourable or less beneficial than before transfer to the agency. It was never intended that consultations would not take place if sought. No prudent employer refuses to talk with their staff or their representatives about matters affecting the employees' interests. It is not necessary to write such a requirement into the legislation and it is not written into other similar type legislation setting up new bodies — the Marine Institute is a case in point.

However, as Senators are aware, I have to be as positive as possible in meeting their concerns and I have accepted the principle of a considerable number of these amendments on Committee Stage in amendments now. I promised to consider the concerns of Senators on Report Stage and I have brought forward a considerable number of Report Stage amendments on this basis.

The amendment I am now proposing to section 32 will fully meet the points made by Senators in relation to consultation with employees and their representatives and require any representations made to be considered by the public authority concerned before any of its staff are designated for employment to the agency. The wording in the amendment is fully in line with the wording in some similar type legislation, including, for example, the Labour Services Act, 1987, and the Safety, Health and Welfare at Work Act, 1989. Where such a provision is being written into the legislation there is much to be said for maintaining the same wording.

The amendment proposed for section 32 is on similar lines, but as there is a significant number of staff involved in the dissolution of An Foras Forbartha provision is being made for consultation with the relevant unions and staff associations rather than employees. In the case of section 30 there might be only one employee or a small number involved and hence the provision for consultation with employees as well as their representatives. My amendments apply the substance of Senator Doyle's and Senator Naughten's amendments.

I would like to thank the Minister.

Amendment agreed to.

Acting Chairman

Amendments Nos. 45, 46 and 47 are related and may be discussed together.

I move amendment No. 45:

In page 27, lines 20 and 21, to delete "(other than those relating to tenure)".

Basically, I would like to know from the Minister why conditions relating to tenure cannot be considered in the terms of conditions for staff when they have been transferred. I am not quite sure exactly why the tenure has been specifically isolated and cannot be considered. Am I right in assuming that a public servant who had worked for 20 or 25 years for ACOT and now Teagasc could find himself now working for the Environmental Protection Agency, but the terms and conditions as regards tenure would date from day one of employment with the Environmental Protection Agency. I would be obliged if the Minister could indicate why it was necessary to single out the conditions of service and have the words "(other than those relating to tenure)" specifically in this section.

In seconding the amendment I must say I share Senator Doyle's concern. I am intrigued as to why the exception is made for tenure. Does it, for instance, mean that if someone leaves one of the established agencies and is employed by the Environmental Protection Agency that they go on probation again before they become permanent employees, or what does it mean? Did one of the mysterious people in the draftsperson's office land this on the Minister's desk? I would like to believe there is no underlying or suspicious reason but I will listen with interest.

I can certainly assure the Senators that there is not. As the terms and conditions relating to tenure are provided for specifically in section 31 (1) there is a need to exclude this matter from subsections (2) and (3) and that is the reason the words which the amendments seek to delete appear there. If the words were deleted there could be confusion as to what terms and conditions would apply in so far as tenure is concerned. The wording in the Bill is similar to the wording in other legislation, such as the Labour Services Act, 1987, and the Safety, Health and Welfare at Work Act, 1989. Basically, section 31 (1) deals with the question of tenure and that is why it is deleted in subsections (2) and (3).

Amendment, by leave, withdrawn.
Amendment Nos. 46 and 47 not moved.
Government amendment No. 48:
In page 28, between lines 12 and 13, to insert the following:
"(3) The Minister shall not make an order under subsection (2) (a) without having notified in writing any recognised trade unions or staff associations concerned of his intention to do so and considered any representations made by them or by any of them in relation to the matter within such time as may be specified in the notification.".
Amendment agreed to.
Government amendment No. 49:
In page 30, line 28, to delete "Where" and substitute "Subject to subsection (4), where".

This amendment will allow the Minister to exempt certain grades or classes of employees from the provisions of section 36 restricting them from membership of a local authority. A similar provision applies to local authority staff and the Minister has exempted non-senior grades from the exclusion for membership of local authorities.

I feel this amendment will meet the concerns expresed by a number of Senators that the rights of employees in the agency to participate in political activity are unduly restricted by the provisions of section 36 while avoiding the danger of the agency becoming unduly political in the public eye as a result of the political involvement of its employees. Many Senators made a strong case for this and I decided, therefore, to review the situation and to allow the Minister to make exemptions and to designate certain classes of people for the purposes of participating as members of local authorities.

I am glad the Minister said this because I was under the impression at the time that there was a similar provision for local authority members but none of us was quite sure. I hope the appropriate grade will be taken to be reasonably high up the ranks, that people who are in many areas of activity in the Environmental Protection Agency will be allowed to participate. We should be very wary of putting any obstacle in the way of allowing people to be involved in political activities, and particularly in local government. There is a need for considerable extension of local authority activity and local authority powers, and related to that is the need to have people who have an interest or perhaps an expertise being prepared to participate in local government. I am glad the Minister has introduced these amendments.

Amendment agreed to.
Government amendment No. 50:
In page 30, lines 29 and 30, to delete "stand seconded from employment by the Agency" and substitute "be released on special leave".

On Committee Stage it was pointed out that secondment normally refers to a situation where a person is absent from employment while in another paid employment and that the term was less appropriate for use in the context of section 36 as local authority members are not paid. This amendment takes account of this point by substituting the term "special leave" for "secondment".

Amendment agreed to.
Government amendment No. 51:
In page 30, between lines 35 and 36, to insert the following:
"(4) The Minister may by order designate a class, description or grade of employment to which the provisions of subsection (2) or (3) shall not apply while such order is in force.".
Amendment agreed to.
Government amendment No. 52:
In page 30, between lines 41 and 42, to insert the following:
37. —(1) It shall be the duty of a person to whom this section applies to give to the Agency a declaration in the prescribed form, signed by him and containing particulars of every interest of his which is an interest to which this section applies and for so long as he continues to be a person to whom this section applies it shall be his duty where there is a change regarding any such interest or where he acquires any other interest to which this section applies, to give to the Agency a new declaration in the prescribed form.
(2) (a) This section applies to—
(i) the Director General or other director, and
(ii) an employee of the Agency or any other person whose services are availed of by the Agency and who is of a class, description or grade prescribed for the purposes of this section.
(b) This section applies to the following interests—
(i) any estate or interest which a person to whom this section applies has in any land or in any activity,
(ii) any business of dealing in or developing land, or any activity, in which such a person is engaged or employed and any such business carried on by a company or other body of which he, or any nominee of his, is a member,
(iii) any profession, business or occupation in which such a person is engaged, whether on his own behalf or otherwise, and which relates to dealing in or developing land or to an activity.
(3) A person to whom this section applies and who has an interest to which this section applies shall be regarded as complying with the requirements of subsection (1) if, and only if, he gives to the Agency a declaration mentioned in that subsection within the period of twenty-eight days beginning—
(a) in case the person is such a person on the commencement of this section, on such commencement,
(b) in case the person becomes such a person after the commencement of this section, on the day on which he becomes such a person,
(c) in case there is a change regarding an interest particulars of which are contained in a declaration already given by the person or where the person acquires any other interest to which this section applies, on the day on which the change occurs or the other such interest is acquired.
(4) For the purposes of this section, a person shall be regarded as having an estate or interest in land or an activity if he, or any nominee of his, is a member of a company or other body which has an estate or interest in the land or the activity.
(5) For the purposes of this section, a person shall not be regarded as having an interest to which this section applies if the interest is so remote or insignificant that it cannot reasonably be regarded as likely to influence a person in considering or discussing, or in voting on, any question with respect to any matter arising or coming before the Agency or in performing any function in relation to any such matter.
(6) Where a person to whom this section applies has an interest to which this section applies by reason only of the beneficial ownership of shares in a company or other body by him or by his nominee and the total nominal value of those shares does not exceed the lesser of—
(a) one thousand pounds, or
(b) one-hundredth part of the total nominal value of either the issued share capital of the company or body, or where that capital is issued in shares of more than one class, the issued share capital of the class or classes of shares in which he has an interest,
subsection (1) of this section shall not have effect in relation to that interest.
(7) The Agency shall for the purposes of this section keep a register (which register is in this section referred to as the register of interests) and shall enter therein the particulars contained in declarations given to the Agency pursuant to this section.
(8) The register of interests shall be available for inspection by any person at the Agency's headquarters during office hours.
(9) Where a person ceases to be a person to whom this section applies, any particulars entered in the register of interests as a result of a declaration being given by the person to the Agency pursuant to this section shall be removed, as soon as may be after the expiration of the period of five years beginning on the day on which the person ceases to be such a person, from the said register by the Agency.
(10) Subject to subsection (11), a person who fails to comply with subsection (1) or who, when purporting to comply with the requirements of the said subsection (1), gives particulars which are false or which to his knowledge are misleading in a material respect, shall be guilty of an offence.
(11) In any proceedings for an offence under this section it shall be a defence for the defendant to prove that at the relevant time he believed, in good faith and upon reasonable grounds, that—
(a) the relevant particulars were true,
(b) there was no matter as regards which he was then required to make a declaration under subsection (1), or
(c) that the matter in relation to which the offence is alleged was not one as regards which he was so required to make such declaration.".
(12) In this section `land' includes land covered by water.".

This suggestion was made by Senator Ryan on Committee Stage. The amendment essentially provides that directors and prescribed employees of the agency must declare all substantial land, shares and other financial interests they possess relating to land or an activity and such declarations will be entered in a register which will be available for public inspection. This wide ranging provision will ensure that the interests of the agency's directors and senior personnel are clearly visible to the public, thus ensuring that public confidence in the impartiality of the agency's decisions will be enhanced.

When I introduced a two line amendment on Committee Stage I did not expect a page and a half of an amendment back from the Minister. I compliment her on her thoroughness. It is a considerable and courageous step forward. It may well inhibit certain people from seeking senior positions in the agency, but that is as it should be. This is a very important area where public trust is the bedrock of the success of the agency. We could perhaps direct the Minister to the idea of persuading the Government or the Houses of the Oireachtas to introduce similarly drafted and fairly brief legislation to deal with the Members of the Houses of the Oireachtas and their interests. It would be a further step in the direction of public transparency and public trust in the political process.

I welcome this amendment as it stands. Section 37 (1) now reads "where the Director General or other director..." Should that read "other directors" or "other director," singular? Perhaps we should tidy that up. I pointed this out on Committee Stage, but it is still in the Bill. Should this be plural or singular? I am being pedantic.

It is right the way it is. It refers to "other director".

Amendment agreed to.
Government amendment No. 53:
In page 31, lines 10 and 11, to delete "take no part in a discussion of the matter" and substitute "withdraw from the meeting for so long as the matter is being discussed or considered".

I indicated on Committee Stage that I would take on board on Report Stage the content of amendments proposed by Senator O'Toole to the effect that persons with an interest in matters being considered should withdraw from the meeting rather than take no part in the consideration of the matter while being able to remain at the meeting. The amendments before us are identical in substance but slightly different in wording to Senator O'Toole's Committee Stage amendments and will oblige members of the agency or of the agency committees or consultative groups to withdraw from meetings where a matter in which they have an interest is being discussed.

Amendment agreed to.
Government amendment No. 54:
In page 31, to delete all words from and including "and for" in line 44 down to and including "meeting" in line 46.
Amendment agreed to.
Government amendment No. 55:
In page 32, to delete lines 39 to 41 and substitute the following:
"(3) The Agency shall appoint a person to chair the meetings of a committee or consultative group under this section and a person to act in the absence of the person so appointed.".
Amendment agreed to.

I move amendment No. 56:

In page 34, line 31, to delete "may" and substitute "shall".

As I indicated on Committee Stage, this amendment would result in the rather anomalous position that the Minister for Finance would be obliged to exercise his discretion in relation to Government expenditure but not be obliged to exercise it in any meaningful way. Were the amendment to be carried, the Minister for Finance would be obliged to sanction funds for the agency but the sanction of a token sum would satisfy the obligation. The key to proper financing of the agency lies not in legislative phrasing but in the Government's commitment to environmental protection. I can assure the Senators that this Government are fully committed to the new agency and will ensure that it is adequately financed. The adoption of this amendment would have no impact whatever on the agency's funding position.

I do not think the substitution of the word "shall" for "may" would make any difference because, as I said, a token sum would fulfill the legislative requirement and would not go any way towards providing what I think is behind Senator Doyle's intent here, that is, sufficient funds to allow the agency to carry out its responsibilities in an efficient and effective manner. That certainly is the intention and that is obviously a budgetary matter. You cannot legislate in any meaningful way for the provision of funds to any public body. Therefore it is not desirable or necessary or would it in any way be effective to accept this amendment.

With respect, I do not quite accept what the Minister has said in response.

Acting Chairman

The amendment has not been seconded.

I second the amendment. Having listened to the Minister, I am quite confused. The word "may" in every bit of legislation I have seen — and I have had long arguments with Government Ministers, including the Minister present, about the use of the word "shall" instead of "may"— was always seen as making something a good deal more mandatory; in other words, if you said "shall" it meant they had to do it and if you said "may" it meant they had some discretion in the matter. It seems to me that we are getting a slightly different interpretation of words that have been used fairly extensively in legislation in which we are suggesting that the word "shall" apparently is less helpful than the word "may". It seems that the word "shall" simply affirms the fact that the Minister for Finance shall. He might only have to make a token sum available but under the present framework he or she would not even have to make any sum available. The difference is not enormous and I doubt if we are going to have a long argument about it; but there is a difference and the difference makes it a little more imperative on the Minister to cough up some cash.

I would like to respond to the Minister. I am disappointed that she cannot accept the word "shall" instead of "may" here. I know there are many occasions where one could draw the conclusion that we are tying the hands of a Minister in mandating him in the Bill and leaving no options but in this case it is quite different. We are not stating that he shall give a specific figure to the agency each year. We are not saying "he shall" and thereby must give £8 million a year. We are not taking the discretion from the Minister in terms of his budget in any way by substituting the word "shall" for "may" in this context. I would ask the Minister to look at it, because if the Minister of the day is not prepared to grant aid the Environmental Protection Agency each year, and if he needs the option of whether he will or he will not, which effectively is what the word "may" implies, we are weakening the case we are making here for the establishment of the Environmental Protection Agency.

There is another matter which concerns me also. It is this. As the agency gets established and licence fees start to come in, and they get fines, and charges and payment for the services, they will render nothing in a particular year to the Environmental Protection Agency, that they can live on the funds they are generating. I would read that as far more sinister than just a "may" in this case. I would like to see the word "shall" to ensure in the future that any Minister in a position to consider it will give a grant. I know a token grant could be made if the Minister wanted them to live off their own resources or the moneys they have generated themselves, but I doubt if any Dáil or Seanad would allow that in any budget debate. I doubt if any Dáil or Seanad would allow that in any budget debate subsequently.

Members on all sides of this House, feel strongly that the Environmental Protection Agency be established, that it be viable, that it be strong and that it does the work we all want it to do. Therefore, I think that any discretion in the future as to whether a Minister may or may not grant aid the Environmental Protection Agency in any particular year should now be removed from the Bill. There is so little involved. We are not tying the Minister's hands in a budgetary sense; if we were, this amendment would be disallowed, so obviously we are not infringing on the Minister's budgetary discretion by changing the word "may" to "shall". I urge the Minister to accept this amendment. It is a very small amendment but it could make a huge difference in terms of the strength of commitment to future funding of this agency.

Acting Chairman

Is amendment No. 56 being pressed?

Question put: "That the words proposed to be deleted stand."
The Seanad divided: Tá, 30; Níl, 16.

  • Bennett, Olga.
  • Bohan, Eddie.
  • Byrne, Hugh.
  • Byrne, Sean.
  • Cassidy, Donie.
  • Conroy, Richard.
  • Cullen, Martin.
  • Dardis, John.
  • Fallon, Sean.
  • Farrell, Willie.
  • Finneran, Michael.
  • Fitzgerald, Tom.
  • Foley, Denis.
  • Haughey, Seán F.
  • Honan, Tras.
  • Hussey, Thomas.
  • Keogh, Helen.
  • Kiely, Dan.
  • Kiely, Rory.
  • Lydon, Don.
  • McCarthy, Seán.
  • McGowan, Paddy.
  • Mullooly, Brian.
  • O'Brien, Francis.
  • Ó Cuív, Éamon.
  • O'Donovan, Denis A.
  • O'Keeffe, Batt.
  • Ormonde, Donal.
  • Ryan, Eoin David.
  • Wright, G. V.

Níl

  • Cosgrave, Liam.
  • Doyle, Avril.
  • Hourigan, Richard V.
  • Howard, Michael.
  • Jackman, Mary.
  • Kennedy, Patrick.
  • McDonald, Charlie.
  • McMahon, Larry.
  • Manning, Maurice.
  • Neville, Daniel.
  • Ó Foighil, Pol.
  • Ross, Shane P. N.
  • Ryan, Brendan.
  • Ryan, John.
  • Staunton, Myles.
  • Upton, Pat.
Tellers: Tá, Senators Wright and Fitzgerald; Níl, Senators Neville and Cosgrave.
Question declared carried.
Amendment declared lost.
Debate adjourned.
Sitting suspended at 6.5 p.m. and resumed at 6.30 p.m.